MEMORANDUM

NEW YORK SUPREME COURT - QUEENS COUNTY
IAS TERM PART 20

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In the Matter of the Application of         :
DEPARTMENT OF SOCIAL WORK OF MOUNT          : By: Kassoff, J.
SINAI HOSPITAL OF QUEENS for the            : Dated: November 16, 1999
Appointment of a Guardian of                : Index No. 16743/99
LOUIS KOCH,                                 :
An Alleged Incapacitated Person.            :

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The Department of Social Work of Mount Sinai Hospital of Queens (hereinafter Mount Sinai) has brought this petition, pursuant to Mental Hygiene Law ' 81.06(6), seeking the appointment of a Guardian for Louis Koch, an alleged incapacitated person (hereinafter the AIP). The petition alleges, inter alia, that the AIP was admitted to Mount Sinai on June 19, 1999, having been transferred there from Dry Harbor Nursing Home. He is a leg amputee, who required hospitalization for an infection. Mount Sinai alleged that the AIP was unable to make health care decisions for himself, or handle his financial affairs, and therefore, sought the appointment of a Guardian for both his personal and property management needs.

The Court appointed Cheree A. Buggs as Court Evaluator. After Ms. Buggs filed her report with the Court, the matter came on for a hearing as required by Mental Hygiene Law ' 81.11(a). Richard Rose, the Director of Social Work at Mount Sinai, testified at the hearing that the AIP was originally admitted to Mount Sinai in February 1999, because his blood vessels were compromised as a complication of diabetes. He underwent a partial amputation of his leg, and after refusing to undergo a second amputation, was transferred to a rehabilitation center, and then to Dry Harbor Nursing Home. When the wound developed an infection, he was transferred back to Mount Sinai, where he continued to refuse the second amputation, but received rehabilitation and laser therapy. By July 2, 1999, the AIP no longer required acute care. As of that date his insurance company has refused to pay for his care at Mount Sinai, and due to his age he is not eligible for Medicaid. Yet he refuses to leave the hospital.

Mount Sinai's efforts to convince the AIP that he does not require acute care have been to no avail. He insists that he will not leave the hospital until his leg is completely healed. Mount Sinai has tried to convince the AIP that he should either go to a rehabilitation center or return home, where he can receive the care he needs until he is ready to be fit with a prosthesis. Since the AIP's apartment is apparently uninhabitable, Mount Sinai has offered to arrange for it to be cleaned up, and to negotiate with his managed care company for payment for home care services. The AIP has refused this offer. According to Mr. Rose, the AIP is totally uncooperative. In the opinion of Mount Sinai, the AIP's judgment is grossly impaired. The AIP refused to come to court to be heard on the petition.

Ms. Cheree Buggs then testified. She visited twice with the AIP at Mount Sinai and spoke to him on the telephone three or four times. She concluded that the AIP, while a stubborn man, and a management problem for Mount Sinai, is not incapacitated as defined by Mental Hygiene Law ' 81.02(b). He did not want to go to a rehabilitation center because he had previously had a bad experience at a skilled nursing facility, and felt he was receiving good care at Mount Sinai. While the AIP is a "difficult personality", he has a sharp mind, and is simply insistent upon getting his own way. He is not incapable of determining what his medical problems are, or whether he should be in the hospital; rather he feels that he should remain in the hospital where his condition is being treated, and believes he will not receive appropriate care at another facility. The AIP admitted to Ms. Buggs that he required the amputation as the result of his own neglect.

As far as the AIP's property management needs are concerned, Ms. Buggs testified that the AIP manages his own finances. His friends pick up his mail, and he writes out the checks for his bills. His landlord confirmed that he has continued to pay his rent while in the hospital. Ms. Buggs concluded that the AIP is not incapacitated as to either his personal or property management needs.

The Court cannot find that an individual is incapacitated unless it is established, by clear and convincing evidence, that the individual is likely to suffer harm due to an inability to provide for personal needs and property management, and that the person cannot adequately understand the nature and consequences of such inability (Mental Hygiene Law '81.02(b)). Having heard and seen the witnesses at the hearing conducted on the instant petition, it is clear to the Court that this burden has not been met by Mount Sinai. The Court gives great weight to the testimony of Cheree Buggs, who, after speaking to the AIP, concluded that he does not have functional limitations which require the appointment of a guardian. Indeed, the evidence was overwhelming that the AIP is capable of making his own decisions regarding his health care. The fact that Mount Sinai and the Court may not agree with those decisions, does not render the AIP incapable of providing for his personal needs.

Furthermore, assuming, arguendo, that the AIP's decision making ability with regard to his health care constitutes a functional limitation, his admission to Ms. Buggs that his neglect exasperated his medical condition leading to the amputation, reveals that he does understand and appreciate the nature and consequences of such limitation. Similarly, the testimony of Richard Rose that the AIP refuses to return to his apartment because it is unlivable, demonstrates an understanding and appreciation of the problems he is facing with regard to his personal needs.

Accordingly, the Court having conducted a hearing pursuant to section 81.11 of the Mental Hygiene Law, finds that Louis Koch is not incapacitated, as that term is defined by section 81.02(b) of the Mental Hygiene Law. Since the AIP did not consent to the appointment, and it was not established that his functional limitations impaired his ability to provide for his personal needs or property management, or that he lacked understanding and appreciation of the nature and consequences of such limitations, the petition to appoint a guardian for him is dismissed (see, Mental Hygiene Law '81.15 [delineating findings which Court must make in order to appoint guardian]).

The Court recognizes and appreciates Mount Sinai's dilemma. It is beyond question that Mr. Koch is a difficult and uncooperative individual. He continues to be a patient at Mount Sinai, despite the fact that he has not been in need of acute care since July.

Nevertheless, Article 81 of the Mental Hygiene Law is not the appropriate vehicle to redress the predicament in which Mount Sinai finds itself.

This memorandum constitutes the decision and order of the Court.

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