A petition has been filed for the appointment of a guardian of the person and property of E.H., an alleged incapacitated person (hereinafter known as "the person"). The Court, having been satisfied that the person was served with the order to show cause and petition by personal delivery at least fourteen days prior to the return date, and that all other necessary interested persons required to be served under Mental Hygiene Law section 81.07 were timely served with the order to show cause and petition, appointed a court evaluator from Mental Hygiene Legal Service (hereinafter "MHLS").

However, this court was informed by MHLS that it had represented the person in proceedings in connection with her hospitalization at St. Barnabas Hospital and it would be a conflict for MHLS to serve as court evaluator. Accordingly, this court issued an order dated October 4, 2006, vacating the appointment of MHLS as court evaluator and appointing MHLS as counsel for the person. Beverly Dorman, Esq. represented the person.

The hearing was held on October 26, 2006. The hearing was conducted in the absence of the person. She refused to come to court for the hearing even though arrangements were made by the hospital to bring her to court. She did not want to discuss the proceedings at the hospital and left the room even though her attorney was present. Accordingly, her appearance was waived. Michael Swanwick, Assistant Director of Social Work at St. Barnabas Hospital, Cathy Lloyd, the person's case manager from Adult Protective Services (hereinafter "APS") and Rosemary Davis, an employee of the New York City Housing Authority (hereinafter "NYCHA"), testified at the hearing.

At the commencement of the hearing, the person's attorney objected to the testimony of Michael Swanwick on the ground that he is a social work supervisor at St. Barnabas Hospital and there is a social worker/client privilege under C.P.L.R. §4508. She asserted that any information received by Mr. Swanwick as supervisor, was obtained from the person's treating social worker, and the information would "in effect" be privileged. However, as counsel for the petitioner articulated, Mr. Swanwick is not involved in a treating relationship with the person. Therefore, there is no social worker/client privilege that would attach to his testimony or his observations of the person.

Moreover, petitioner asserted that Mr. Swanwick would provide testimony as a member [*2]of the Discharge/Length of Stay Committee at St. Barnabas Hospital. Said committee discusses those particular patients whose length of stay in the hospital is elongated and formulates a safe and appropriate discharge for said patients. Petitioner's counsel cited to the Public Health Law's mandate to ensure that each patient has a discharge plan which meets the patient's "post-hospital care needs."^[FN1] The issue of why the person in the matter herein cannot be discharged safely is the purpose of this guardianship proceeding. The person has functional limitations which prevent her from having the ability to effectuate a plan of discharge that will preserve her health and well-being upon her discharge from the hospital.

The petitioner also argued that a hospital is one of the parties that can commence an Article 81 proceeding for the appointment of a guardian. If the argument by counsel for the person is taken to its logical extreme, hospitals would be prevented from commencing guardianship proceedings if they were precluded from offering this kind of non privileged evidence at a hearing. This was not the intention of the legislature in enacting Article 81. The petitioner contends that Article 81 seeks to achieve a balance between the alleged incapacitated person's rights and the state's interest in protecting the health and welfare of its citizens and, as such, the court has the discretion to decide when to sustain evidentiary objections and when not to.

In particular, petitioner's counsel points out that the hospital did not request the appearance of the treating physician or the treating social worker which would clearly violate the privilege. Instead, petitioner called as a witness the social work supervisor who is familiar with the person in his role supervising "problem cases" in the hospital. The supervising social workers' role in this matter is that of a discharge planning social worker which is different from a social worker in a community setting who has a treating relationship with a patient and assists the person in social and psycho-social issues.

This court recognizes that even though this is a guardianship proceeding wherein the person's medical and mental condition are at issue, the social worker/patient privilege has not been waived.^[FN2] However, this court permitted Mr. Swanwick to testify as to his observations of the person in his role as a member of the Discharge/Length of Stay committee as it relates to the person.

It is determined that the following findings of fact were established by clear and convincing proof upon the documentary evidence submitted and the testimony adduced:

1. The person is seventy-four (74) years of age and she presently resides at St. Barnabas Hospital located at Third Avenue and East 183rd Street in Bronx County.

2. The person is a long-term resident of the hospital. She came to the attention of Mr. Swanwick when the person's social worker had concerns about the person's discharge from the hospital. The person is deaf and she has behavioral problems which cause her to become non-compliant with her medication. She has mental and medical conditions, such as high blood pressure, which require that she take daily medication. Although she has been compliant with [*3]taking her medication at the hospital, the hospital was required to request court intervention at least twice in the past in order to get the person to comply. She has stated that she has no intention of taking her medication upon her discharge from the hospital.

The person can perform most of her activities of daily living but she needs prompting in order to do so, such as bathing daily. She often refuses to eat and her meals are brought to her room as opposed to the dining hall at the hospital. The person is belligerent and angry and has been assaultive with the staff at the hospital. The person wants to return to her apartment in the community. However, the person refuses any assistance including devices to aide her with her hearing impairment. The hospital has made efforts to provide care for her if she returns to her apartment in the community, such as Assisted Outpatient Treatment, intensive care management, and APS, but all have declined to work with the person because she is not compliant with her medications and because there is a lack of support in the community. She was placed on financial management through APS after she faced eviction for failure to pay her rent. As a result, the person is in need of someone to provide for her personal needs and financial management. The guardianship is required for an indefinite duration.

3. The person's income and assets consist of social security benefits in the amount of approximately $600 per month.

4. Mr. Swanwick stated that he believes a nursing home would be the best environment for the person because it is a more restrictive environment where the person can be supervised regularly and medical staff is present to address her needs and make sure she takes her medication. The person has stated that she does not require assistance but if she returns to her home without assistance, she will be a danger to herself and to others. The person was initially brought to St. Barnabas Hospital by emergency medical technicians after her apartment flooded and she refused to allow emergency personnel to enter the apartment.

5. The person's APS caseworker stated that the person was referred to APS in late 2004 or early 2005 because she was facing eviction from her apartment for failing to pay her rent. She was placed on financial management so that her rent could be timely paid. The caseworker was only able to meet with the person one time and was only able to speak to her in the doorway because the person refused to let the caseworker enter her apartment. The caseworker stated that there was a psychiatric evaluation in the APS file wherein the psychiatrist who evaluated the person indicated that the person had scissors and a knife in her pocket and she leapt at the psychiatrist when she went to the apartment to perform her evaluation.

6. Ms. Davis, the NYCHA employee assigned to work in the building where the person resided, a senior citizen building, was the only person able to keep track of the person. She stated that the person told her she would hear a lady screaming at night and that there was a man "hitting the children." However, upon hearing this, Ms. Davis stated that she grew concerned because the person is hearing impaired. Ms. Davis further stated that as a result of the person's hearing impairment, NYCHA installed a doorbell in the person's apartment wherein a bulb would light up if someone was ringing her doorbell. However, the person disconnected the doorbell.

Ms. Davis would see the person leave her apartment approximately once a month to go shopping for groceries but she stopped seeing her approximately three years ago. She went to the person's door and heard nothing. She became concerned and entered her apartment with social [*4]services personnel. Ms. Davis found the person crouched in a corner with a head of lettuce in her hand that she had peeled down to the core. She was severely dehydrated and disheveled.

When the flood occurred in the person's apartment, it caused flooding to several apartments below that of the person's. The police were called, as were firefighters and other emergency personnel. The person refused to permit anyone to enter the apartment. Police officers cut the chain on the person's door and forced their way into the apartment. Upon entering, Ms. Davis heard the person screaming that she did not want help and she ran toward the window/terrace area.

Ms. Davis stated that she is concerned for the person and agrees that the person requires a guardian because she isolated herself while she was in her apartment and when emergency personnel were in the person's apartment, she observed that there was no food whatsoever in the refrigerator. The person had no electricity in her apartment and it is unknown how long she was living in that condition.

7. Through cross-examination of the witnesses, the person's counsel established the person's position that she did not want to have a guardian appointed and she wanted to return to her apartment in the community.

1. After examination of the documents submitted and the testimony adduced at the hearing, the petition for the appointment of a guardian for the person and property is hereby granted. Integral Guardianship Services, a not-for-profit social services agency located at 36 West 44th Street, New York, New York 10036, is hereby appointed guardian of the person and property.

2. The guardian is granted those powers listed under Mental Hygiene Law §81.22, which are necessary and sufficient to provide for the personal needs of the person. These include the power:

a) to determine who should provide personal care or assistance;

b) to make decisions regarding the social environment and other social aspects of the life of the person;

c) to choose the place of abode for the person, including, but not limited to nursing home or community residence;

d) to apply for government and private benefits on behalf of the person;

e) to authorize access to or release of confidential records;

f) to consent to or refuse generally accepted routine or major medical or dental treatment subject to the provisions of subdivision (e) of section 81.29 of this article dealing with life sustaining treatment; the guardian shall make treatment decisions consistent with the findings herein pursuant to Mental Hygiene Law §81.15 and in accordance with the person's wishes, including the person's religious and moral beliefs, or if the person's wishes are not known, and cannot be ascertained with reasonable diligence, in accordance with the person's best interests, including a consideration of the dignity and uniqueness of every person, the possibility and extent of preserving the person's life, the preservation, improvement or restoration of the person's health or functioning, the relief of the person's suffering, the adverse side effects associated with the treatment, any less intrusive alternative treatments, and such other concerns and values as a [*5]reasonable person in the person's circumstances would wish to consider;

g) determine whether the person should travel;

h) defend or maintain any civil judicial proceeding.

3. The guardian of the property is granted those powers listed under Mental Hygiene Law §81.21 which are necessary and sufficient to provide for the management of the person's assets. These powers include the following:

a) the guardian shall be allowed to make reasonable expenditures from the person's assets, for the purpose of providing support of the person in the event the annual income is insufficient to meet the person's needs;

b) to marshall and invest the person's assets in investments eligible by law for investment of trust funds and to dispose of investments so made and reinvest the proceeds as so authorized;

c) to pay any existing debts or claims which have been proven to the satisfaction of the guardian as being properly due and owing;

d) to preserve, protect and account for such property faithfully; to retain or employ attorneys, accountants or other professionals to assist in the performance of the duties of the guardian. However, payment of fees to such persons shall only be paid with prior approval of the Court;

e) the guardian of the property may not alienate, mortgage, lease or otherwise dispose of real property without the specific direction of the Court obtained upon proceedings taken for that purpose as prescribed in Article 17 of the Real Property Actions and Proceedings Law, provided however, that without instituting such proceedings, the guardian of the property may, without the authorization of the Court, lease any real property for a term not exceeding five years;

f) pay funeral expenses.

4. These powers constitute the least restrictive form of intervention consistent with the person's functional limitations.

5. The bond that is normally required pursuant to Mental Hygiene Law §81.25 is hereby waived. Moreover, the educational requirements pursuant to Mental Hygiene Law §81.39 are also waived.

6. Integral Guardianship Services, as guardian, shall be compensated in the amount of $450.00 per month, which sum shall be deducted from the person's income and shall be deemed excluded from available income for the purpose of the Medicaid calculation of net available monthly income, because such expenditure for the administrative costs of this proceeding is necessary to insure the medical and physical well-being of the person.

7. Integral Guardianship Services shall have the power to retain an attorney solely necessary for legal work, or an accountant to assist in the preparation of the initial report, annual accountings, and final report or to assist in the preparation of federal and state income tax returns, subject to court approval of fees.

8. Integral Guardianship Services, as guardian of the property shall pay to its attorney(s) from the assets and/or income of the person, the sum of $300.00 as and for legal fees pertaining to the creation of the guardianship, including the preparation and filing the oath and designation, preparing and obtaining the guardianship commission, reviewing the file and rendering initial advice.

9. The guardian shall file an interim report and annual report, in accordance with Mental [*6]Hygiene Law §§81.30 and 81.31, with the Guardianship Department of Bronx County, 851 Grand Concourse, Bronx, New York. Failure to file said reports may result in the removal of the guardian.

10. Petitioner is directed to settle an order and judgment, with a copy of this decision, in accordance with Mental Hygiene Law §81.16( c) and the guardian is directed to file its designation in accordance with Mental Hygiene Law §81.26. Said order and judgment should be filed in a timely fashion due to the exigency of these proceedings.

This constitutes the decision and order of this court.

Date:November 6, 2006

J.S.C.