Supreme Court, Monroe County, July 18, 2023

Magavern Magavern Grimm LLP, Buffalo (Steven C. Kos of counsel), for petitioner.

Mental Hygiene Legal Service, Rochester (Candice Sengillo and Janine Rella of counsel), for respondent.

Monroe County Law Department, Rochester (Alex Cameron of counsel), for Monroe County Department of Human Services, Division of Social Services, interested party.[*2]

In this Mental Hygiene Law article 81 proceeding, the issue is not whether the respondent Jane Doe, the alleged incapacitated person (AIP), needs a guardian—all parties agree on the need for a guardian.^[FN1] Rather, the issue is who to appoint as guardian when the County of Monroe, through its Commissioner of Social Services, declines to accept the appointment and no family members qualify or are willing to act as guardian.

The petitioner, New York State Office of Mental Health, Rochester Psychiatric Center, by Christopher M. Tidd, M.D., Clinical Director (OMH), moved by order to show cause and petition pursuant to article 81 of the New York Mental Hygiene{**80 Misc 3d at 657} Law for the appointment of a personal needs and property management guardian for Jane Doe, a patient admitted at the Rochester Psychiatric Center.

The hearing required by Mental Hygiene Law § 81.11 was held on April 25, 2023. Counsel for OMH presented the testimony of Elizabeth Marsh, the Director of Social Work at the Rochester Psychiatric Center (RPC), and offered the petition (petitioner's exhibit 1, received in evidence) in support of the application. The AIP appeared with counsel, who cross-examined the petitioner's witness.

Prior to the return date, Monroe County Department of Human Services, Division of Social Services (DSS), which was put on notice of the proceeding as an "interested party" and "as potential guardian of last resort" (NY St Cts Elec Filing [NYSCEF] Doc Nos. 1, 5), filed a letter to the court stating, "DSS is unwilling to act as permanent guardian for this case and respectfully asks not to be appointed"^[FN2] (NYSCEF Doc No. 11). It listed as reasons the following:

(1) DSS is significantly understaffed; (2) qualified family members should be appointed as guardians before third parties; and (3) DSS has a conflict of interest serving as guardian. It would be seeking to discharge the AIP to a skilled nursing facility compensated by Medicaid on behalf of qualifying recipients, and concurrently pursuing recovery of those payments from the AIP's estate.

As alternatives, DSS proposed that service providers or pro bono attorneys be appointed as guardians; or that the court split guardianship duties between RPC and DSS; or that the court appoint DSS pursuant to Mental Hygiene Law § 81.16 (b) as a special guardian with its powers limited to reviewing and authorizing the proposed discharge plan to a skilled nursing facility.

DSS appeared by counsel, who also cross-examined Ms. Marsh.

At the close of the hearing, OMH proposed that the court appoint DSS as an indefinite guardian of the person and property. The AIP's counsel requested that the court deny the proposed guardianship and asserted that there was no showing of harm to Jane if she were to remain at OMH and stressed that Jane expressed a desire to remain there. DSS proposed{**80 Misc 3d at 658} that the [*3]court appoint OMH as guardian based upon its "social relationship" with Jane.

The court reserved its decision whether to appoint a guardian, identifying the nature of any guardianship, and determining what entity would serve as guardian.

All counsel filed a memorandum of law at the court's request, addressing whether OMH has a social relationship with Jane, and whether such a relationship warrants the appointment of OMH as guardian.

Findings of Fact

The court finds the allegations set forth in the petition as well as the testimony of petitioner's witness, Elizabeth Marsh, credible and accurate in all respects.

Jane Doe is 65 years old. She has spent a significant part of her life at the Rochester Psychiatric Center, dating back to 1981 when she suffered psychotic and delusional thinking. From 1987 to 2015, she lived in the RPC inpatient unit. In 2015, she was discharged to a New York State transitional residence, but she was unable to live outside of the facility. Jane Doe presented at Strong Memorial Hospital and then was transferred on October 19, 2018, for admission to RPC, where she currently remains.

Jane, diagnosed with a major thought disorder, sometimes refuses medical care and referrals to specialists for her chronic kidney disease. She is deteriorating mentally and physically. She needs assistance with her activities of daily living, including grooming; dressing; bathing; mobility; eating; toileting; taking prescribed medications; making decisions regarding social environment and social activities; making rational decisions regarding pension benefits, private benefits, and Social Security benefits; applying for governmental entitlements; and making rational banking decisions (see e.g. NYSCEF Doc No. 1).

Jane has no health care proxy or power of attorney agent. She has Medicare, Medicare D Cigna, and Medicaid plans. She receives Social Security disability ($771.00 per month) and accumulated over $12,000.00 in her Rochester Psychiatric Center patient account. Rochester Psychiatric Center is her representative payee.

Jane does not consent to the appointment of a guardian. She has no relatives. She is the only child of her parents, both of whom are deceased. No friends visit.{**80 Misc 3d at 659}

She expressed her desire to remain at the Rochester Psychiatric Center, but her treatment there is maximized, and she would thrive at a skilled nursing facility. The Rochester Psychiatric Center is not the least restrictive setting available to meet Jane's needs, but it cannot place her without a safe discharge plan.

Ms. Marsh testified that a skilled nursing facility will not accept someone from the Rochester Psychiatric Center without a permanent guardian. Here, in addition to needing assistance with the activities of daily living, Jane needs a medical decision-maker related to her chronic kidney disease. She also requires assistance with applications for a skilled nursing facility and long-term Medicaid.

Conclusions of Law

The court determines upon clear and convincing evidence that Jane Doe is incapacitated and is likely to suffer harm because she is unable to provide for her personal needs and property management, and she cannot adequately understand and appreciate the nature and consequences of such inability (Mental Hygiene Law § 81.02).

The court further finds that Jane's functional limitations impair her ability to provide for [*4]personal needs and property management; that she lacks an understanding and appreciation of the nature and consequences of her functional limitations; that she is likely to suffer harm because of her functional limitations and inability to adequately understand and appreciate the nature and consequences of such functional limitations; and that it is necessary to appoint a guardian to prevent such harm (Mental Hygiene Law § 81.15 [b], [c]).

With respect to property management powers the court determines that: Jane lacks the requisite mental capacity to perform the act or acts for which approval has been sought and is not likely to regain such capacity within a reasonable period of time; a competent, reasonable individual in Jane's position would be likely to perform the act or acts under the same circumstances; and Jane has not manifested an intention inconsistent with the performance of the act or acts for which approval has been sought at some earlier time when she had the requisite capacity or, if such intention was manifested, Jane would be likely to have changed such intention under the circumstances existing at the time of the filing of the petition (Mental Hygiene Law § 81.21 [e]).{**80 Misc 3d at 660}

Statutory Guidelines

While "Mental Hygiene Law § 81.11 (a) requires a hearing to determine whether appointment of a guardian is necessary . . . [t]he determination who that guardian should be is left to the discretion of the court" (Matter of Wynn, 11 AD3d 1014, 1015 [4th Dept 2004], lv denied 4 NY3d 703 [2005], citing Matter of Flight [Monroe Community Hosp.], 296 AD2d 845 [4th Dept 2002]).

Mental Hygiene Law § 81.03 (a) defines a "guardian" as

"a person who is eighteen years of age or older, a corporation, or a public agency, including a local department of social services, appointed in accordance with terms of this article by the supreme court . . . to act on behalf of an incapacitated person in providing for personal needs and/or for property management" (emphasis added).

Mental Hygiene Law § 81.19 sets forth who (or what agency or a corporation) can be appointed guardian and the criteria to be considered by the court in making that decision.

The AIP did not nominate a guardian. It is conceded by all parties that she has no friends or relatives willing or able to serve.

Mental Hygiene Law § 81.19 (a) (2) provides that a social services official (such as the Commissioner of Social Services) or a "public agency authorized to act in such capacity which has a concern for the incapacitated person" (such as DSS) may be appointed as guardian.

Mental Hygiene Law § 81.19 (d) (1)-(8) set forth each of the factors to be considered, including as relevant here the "social relationship" between the AIP and the "person, if any, proposed as guardian, and the social relationship between the incapacitated person and other persons concerned with the welfare of the incapacitated person" (Mental Hygiene Law § 81.19 [d] [2] [emphasis added]); "the care and services being provided to the incapacitated person at the time of the proceeding" (Mental Hygiene Law § 81.19 [d] [3]); and "any conflicts of interest between the person proposed as guardian and the incapacitated person" (Mental Hygiene Law § 81.19 [d] [8]).

Mental Hygiene Law § 81.19 (e) (1) and (2) state that "[u]nless the court finds that no other person or corporation is available or willing to act as guardian," "the following persons or {**80 Misc 3d at 661}corporations may not serve as guardian:" (1) one whose only interest is as a creditor, and (2) a health care provider or one providing residential services (emphasis added).[*5]

Mental Hygiene Law § 81.16 (b) permits the court to appoint a special guardian with powers of limited scope and duration,^[FN3] if the person alleged to be incapacitated "is found to be incapacitated."

Eligibility of OMH

OMH is a public agency, the Office of Mental Health of the State of New York, but Mental Hygiene Law §§ 7.07 (Office of mental health; scope of responsibilities) and 7.09 (Powers of the office and commissioner; how exercised), which set forth the responsibilities of the Office of Mental Health, provide no authority to that agency to act as a guardian. DSS offered no statutory authority, rule, regulation, or other legal authority to suggest otherwise.

DSS suggested OMH would be eligible because it has a social relationship with the AIP, because the AIP lives at the Rochester Psychiatric Center and has for a long period of time. However, a plain reading of the text of the statute can only mean that a "social relationship" is one between persons, not between a person (i.e., the AIP) and an agency (Mental Hygiene Law § 81.19 [d] [2]).

Counsel for the AIP noted that, rather than having a social relationship, the AIP is being held involuntarily at RPC which status renders any relationship between them adversarial (NYSCEF Doc No. 17).

DSS also suggested that OMH could serve as a "special guardian," pursuant to Mental Hygiene Law § 81.16 (b). As noted above, nothing in the powers granted to OMH allow it to serve as a special or plenary guardian.

Even if it did have the power to serve in a limited capacity, a special guardian with limited powers is not appropriate here. It is undisputed that the AIP is deteriorating medically and physically, and she needs a guardian for daily medical decision-making and ongoing management of her property, not simply to make a Medicaid application on her behalf.{**80 Misc 3d at 662}

In this case, the clear and convincing evidence demonstrates Jane Doe's ongoing need for a plenary personal needs and property management guardian (see Mental Hygiene Law § 81.16 [c]).

While Rochester Psychiatric Center provides an intermediate level of care, as established by the petition and the testimony of Elizabeth Marsh, the AIP needs a memory care setting in a skilled nursing facility, which would be the least restrictive setting. She testified that skilled nursing facilities are reluctant to admit individuals without a guardian or agent empowered to make medical decisions at the time of admission. Also, she stated that RPC staff is not authorized to sign paperwork necessary to make applications for long-term Medicaid.

Accordingly, the Office of Mental Health, Rochester Psychiatric Center is not eligible to act as an article 81 guardian under any circumstance.

Eligibility of the Monroe County Department of Human Services, Division of Social Services[*6]

It is undisputed that both the Commissioner and the Department of Social Services are statutorily eligible to act as a guardian under the Mental Hygiene Law (see Mental Hygiene Law §§ 81.03 [a]; 81.19 [a] [2]).

Petitioner asserts that DSS is the "guardian of last resort"^[FN4] (NYSCEF Doc No. 15 at 2-4), and for authority refers to Social Services Law § 473 (1) (c), which provides that "social services officials" must

"provide protective services in accordance with federal and state regulations to or for individuals without regard to income who, because of mental or physical impairments, are unable to manage their own resources, carry out the activities of daily living, or protect themselves from physical abuse, sexual abuse, emotional abuse, active, passive or self neglect, financial exploitation or other hazardous situations without assistance from others and have no one available who is willing and able to assist them responsibly."

Those services include "arranging, when necessary, for commitment, guardianship, or other protective placement of such{**80 Misc 3d at 663} individuals either directly or through referral to another appropriate agency" (Social Services Law § 473 [1] [c]).

Further cementing the State's obligation to accept appointment as an article 81 guardian when there is no other person or institution who is willing and able to serve is 18 NYCRR 457.1 (a) and (d) (9), which state that "[p]rotective services for adults [are] a State-mandated service . . . limited as appropriate to" services such as "functioning as a guardian . . . where it is determined [that] such services are needed and there is no one else available or capable of acting in this capacity."

Here, the services of a guardian are needed, and there is no "neutral, disinterested person" or corporation "available or willing to act as guardian, or to provide needed services" for Jane (see Matter of Patrick BB., 284 AD2d 636, 639 [3d Dept 2001]; Mental Hygiene Law § 81.19 [e]).

The court is mindful of the staffing issues at DSS, as well as the conflict of interest it has in pursuing Medicaid benefits and estate assets. However, a conflict of interest is just one factor of several the court can consider, as set forth at Mental Hygiene Law § 81.19 (d) (1)-(8), and is not a determining factor (see e.g. Matter of Bessie C. [Commissioner of Cayuga County Dept. of Social Servs.], 225 AD2d 1027 [4th Dept 1996]). If the AIP had heirs who would take from the AIP's estate after she dies, it would indeed be a shame if no one were available to work out a Medicaid application that would shelter the AIP's remaining assets (see e.g. Matter of Shah [Helen Hayes Hosp.], 257 AD2d 275, 279 [2d Dept 1999], affd 95 NY2d 148 [2000]). But there are no assets, and no heirs, so the perceived conflict of interest has no net effect. The complete lack of any relatives to act as guardian is exactly why the County must be appointed.

Further, Mental Hygiene Law § 81.19 (e) (1) excludes, but only conditionally, a creditor from appointment as guardian if its "only" interest in the person alleged to be incapacitated is that of creditor. Given the "protective" nature of DSS' statutory role, its interest in Jane reaches far beyond that of creditor. DSS "is a suitable guardian," and its appointment is in Jane's best interests (see generally Matter of Flight, 8 AD3d 977, 977 [4th Dept 2004]).

The court therefore appoints Monroe County Department of Human Services, Division of Social Services as Jane's guardian with property management and personal needs powers (Mental Hygiene Law § 81.16 [c]).[*7]{**80 Misc 3d at 664}

The appointment of a personal needs and property management guardian is of indefinite duration. The guardian shall provide copies of the initial and annual report to Jane.

Training of the guardian is waived. Posting of a bond is waived.

Petitioner shall submit a proposed judgment and order consistent with this decision on notice to counsel for respondent and DSS.