A petition has been filed for the appointment of a guardian of the person and property of V.W., 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, Barbara V. Gurley, C.S.W.

The petition in this matter was filed by the person's purported husband, K.G.. A cross-petition for the same relief was filed by the person's mother and siblings.

At the commencement of the hearing, this court dismissed the petition of K.G. as a matter of law. All of the parties agree that the person requires the appointment of a guardian of her person and property. However, the person's mother and siblings were opposed to the appointment of K.G. as guardian. Mr. G. was convicted of first degree manslaughter and was sentenced to six (6) to eighteen (18) years in prison. He served twelve (12) years in prison and was released in 2003. He is currently on parole. His attorney informed the court that he obtained a certificate of relief from disabilities and is currently working as an EMS technician. Counsel for the cross-petitioners pointed out that Mr. G. is on parole and therefore, his certificate of relief from disabilities is temporary and could be revoked if he violates his parole in any manner.

Part 36 of the Rules of the Chief Judge, specifically 22 NYCRR 36.2( c) (7), which applies to Mr. G., specifies those persons who are disqualified from being appointed as guardian. Subsection 7 states, "No person convicted of a felony...shall be appointed unless that person receives a certificate of relief from disabilities." Pursuant to Corrections Law §703(4), "Any certificate of relief from disabilities issued by the board of parole to an eligible offender who at the time of the issuance of the certificate is under the board's supervision, shall be deemed to be a temporary certificate until such time as the eligible offender is discharged from the board's supervision, and, while temporary, such certificate may be revoked by the board for violation of the conditions of parole or release." Therefore, since Mr. G. is currently on parole, his certificate of relief from disabilities is only temporary.

There is no case law or other authority that speaks to the issue of whether or not a convicted felon can be appointed as a guardian if he obtains a temporary certificate of relief from [*2]disabilities Therefore, this court has determined as a matter of law that the certificate of relief from disabilities obtained by Mr. G., which is contingent upon his complying with his parole requirements is temporary and he is ineligible to serve as guardian under the Part 36 rules.

Moreover, even if this court were to accept Mr. G.'s temporary certificate of relief from disabilities, he would still be ineligible to serve as guardian. In his petition, Mr. G. expressed an intent to file a medical malpractice action against XXXX Hospital in Bronx County, where the person gave birth to their newborn child in December of 2006. If the medical malpractice action is successful, Mr. G. would be required to file a bond with this court in the amount of the assets obtained on behalf of the person. His status as a convicted felon would prevent him from obtaining a bond. Accordingly, this court dismissed the petition of Mr. G. and proceeded with the cross-petition filed by the person's mother and siblings.

This court further denied the request by Mr. G.'s attorney to amend his petition to reflect that former Surrogate Eve Preminger, with whom the person has no relationship, agreed to serve as guardian for the person. There are several concerned family members who are willing and able to serve as guardian for the person herein. Mental Hygiene Law §81.19(d), which relates to a guardian's eligibility, states, "In making any appointment under this article the court shall consider: 2. the social relationship between the incapacitated person 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."

Moreover, it is well established that courts give preference to family members to serve as guardians. In In Re Chase, 264 AD2d 330 (1st Dept. 1999), the court stated, "It has long been the law in this State, under both article 81 of the Mental Hygiene Law and its precursors, that strangers will not be appointed [guardian] of the person or property of the incompetent, unless it is impossible to find within the family circle, or their nominees, one who is qualified to serve" (citations omitted). Id. at 331. The exceptions are if, "...it is determined that the proposed family member has failed to properly care for the incapacitated person, or that a conflict of interest exists between the family member and the incapacitated person." Id; see also, In re Robinson, 272 AD2d 176 (1st Dept. 2000); In re Bertha W., 1 AD3d 603 (2nd Dept. 2003).

Since there are numerous family members willing to serve as guardian of the person herein and there is no evidence that any of them have failed to properly care for the person or that a conflict exists between the person and any of her family members, there is no reason for this court to consider Mr. G.'s request to have former Surrogate Eve Preminger appointed as guardian.

The hearing was held on April 19, 2007. The hearing was conducted in the absence of the person. It was determined that no meaningful participation would result from her presence at the hearing even if it were conducted at her bedside because she is unable to speak and has suffered brain damage. Therefore, she would be unable to offer any meaningful information to the proceeding. Accordingly, her presence was waived. S.F., the person's mother, C.N., the person's sister, C.W., the person's brother, A.S., the person's son, E.W., the person's sister, S.W., the person's sister, B.E., a close family friend and C.E., a close family friend and godmother to the person's nine year-old adopted son, testified at the hearing.

It is determined that the following findings of fact were established by clear and [*3]convincing proof upon the documentary evidence submitted and the testimony adduced:

1. The person is 39 years of age. The person is presently a patient at XXXX Hospital in Bronx County.

2. The person underwent a caesarean section in December of 2006 to deliver her daughter. There were several complications and it is alleged in the cross-petition that she went through extended periods of oxygen deprivation. She was in a coma. She is bed ridden and is unable to conduct any of her activities of daily living. Her family members stated that she has shown some signs of improvement. However, she cannot provide for her personal needs or her financial management. As a result, she is in need of a guardian to assist her with her personal needs and property management. The guardianship of the person and property is required for an indefinite duration.

3. The person does not have a known income or any assets. Her family members stated that she receives monthly checks for serving as a foster parent. The amount of said checks is unknown.

4. Various family members and friends from New York State and Georgia, testified at the hearing. They stated that they are a close knit family. They were all in agreement that C.N., the person's sister, should be appointed the guardian of the person and property. Ms. N. resides in Far Rockaway, New York. She owns day care facilities in New York and in Georgia. Ms. N. stated that she wished to be appointed the guardian of the person and property of her sister. She visits the person four to five times per week and takes care of her grooming needs. The person has an adopted son named J.W. who is nine years of age. Moreover, she has a foster child who lives with her and the infant child she gave birth to in December 2006 who is still at XXXX Hospital. Ms. N. expressed a desire to have the person's adopted son reside with her.

The family members have researched several assisted living facilities in New York for the person to be placed upon her discharge from the hospital. In addition, Ms. N. stated that she intended to file a lawsuit on her sister's behalf, against XXXX Hospital.

Several of the person's friends and relatives, including her nineteen year old son, A.S., stated that it was questionable whether or not the person and Mr. G. were legally married. It is alleged that they were married while he was in prison. However, no certified marriage certificate was produced at the hearing nor was one attached to Mr. G.'s petition. There was also testimony that the person was intending to leave Mr. G. after the birth of their daughter.

There is an action pending in Family Court with respect to the custody of the person's adopted child. That proceeding has been stayed pending the outcome of this guardianship proceeding.

1. Upon the testimony adduced at the hearing and the documents submitted to this court, the cross-petition is granted and C.N., the person's sister, is hereby appointed the guardian of the person and property.

2. The guardian of the person 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. Those powers include the following:

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; [*4]

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 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. Those powers include as follows:

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 guardian is hereby directed to secure custody of the person's nine year-old adopted son, J.W., with a police escort, pending the outcome of the Family Court proceeding. The guardian is further directed to institute proceedings in Family Court with respect to custody of the foster child that was in the person's care as well as the person's newborn child.

6. The bond that is normally required pursuant to Mental Hygiene Law §81.25, is hereby [*5]waived as the person has no known assets. However, if the medical malpractice action that is filed on her behalf is successful, the guardian is ordered to file a bond in the total amount of the person's assets.

7. The guardian shall receive as compensation for performing her duties that compensation as is provided under §81.28 of the Mental Hygiene Law and as approved by the Court.

8. The guardian shall file an interim report and annual report, in accordance with Mental 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.

9. Cross-petitioner is directed to submit 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 her designation in accordance with Mental Hygiene Law §81.26. Said order and judgment shall be submitted no later than thirty (30) days from the date of the entry of this order due to the exigency of these proceedings.

This constitutes the decision and order of this court.

Date:April 23, 2007

J.S.C.