Petitioner, Family And Children's Association, was appointed as the Guardian of the person and property to the incapacitated person, hereinafter referred to as RH, by Order and Judgment dated January 20, 2002 and signed by a Supreme Court Justice, the Hon. William R. LaMarca. In addition to the delineation of the powers and duties of the Guardian, the order provided that the "...compensation of the Guardian shall be in the sum of $250.00 a month payable from the Social Security benefits of RH, the person in need of a guardian, and in connection therewith, the Nassau County Department Social Services shall reduce the net available monthly income of the Person in Need of a Guardian by the amount of the monthly compensation payable to the Guardian..." [Order to Show Cause, Exhibit C, Order and Judgment, p.6 para. 5].

The petitioner has moved by order to show cause to be relieved as Guardian for RH, and for the appointment of a Successor Guardian upon the grounds that the petitioner does not have the support services available to it, either in house or otherwise, to handle the multi-faceted problems posed by RH. The petitioner testified that the guardian agency has incurred expenses in excess of $45,000 while serving as the guardian of RH to date and has collected less than 25% of that expense, with absolutely no prospect of being paid the balance. As stated above, the guardian was receiving monthly payments of $250.00 which has turned out to be woefully inadequate as compared with the amount of time and attention this incapacitated person has required over the past five years. To make matters worse, Petitioner avers that as of July 26, 2006 the Nassau County Department of Social Services denied petitioner its guardianship fees of $250.00 per month as required by court Order and Judgment dated February 11, 2002 claiming that said fees are disallowed based upon 18 N.Y.C.R.R. §360-4.6.

The Nassau County Department of Social Services was served with the order to show [*2]cause in addition to the other parties. However, the Nassau County Department of Social Services did not appear for the hearing held on April 25, 2007. After giving the parties an opportunity to be heard, the court renders the following decision.

The testimony at the hearing establishes by clear and convincing evidence that the incapacitated person, RH, is in need a guardian of her person and property. According to petitioner, RH is 72 years old, and suffers from mental retardation, diabetes, hypertension, and obesity. RH lives in a home with a sibling who suffers from a diminished intellectual and emotional capacity, and another sibling who suffers from a psychiatric condition who is in need of intensive psychiatric care. Both siblings are illiterate, and neither sibling is suitable to serve as a guardian. In fact, petitioner states that both siblings also need a guardian, but that issue is not before this court. RH needs to be assisted on a daily basis, and accompanied to doctor appointments. She has an aid from the Nassau County Department of Social Services who comes to her house 5 days per week for 3.5 hours per day. Her personal needs are considerable, and at times RH can be belligerent. For example, until the guardian put a stop to it RH was spending her grocery money on fast food leading to problems with her diabetes and leaving no money for groceries in the house to live on. Given these circumstances, the court finds that petitioner's claim of being overwhelmed by the enormous expenditure of time, and the impossibility to segregate fulfilling RH's needs from that of the family unit, and the inability to provide the level of attention necessary for RH, is valid.

The finances present another issue. While the $250.00 per month is, as stated above, woefully inadequate under these circumstances, even that paltry amount is now unavailable for the court to attempt to find a replacement guardian. This is because the Nassau County Department of Social Services eliminated the payment as being an improper deduction from the net available monthly income of RH. A review of the relevant NY Code Regulation appears to corroborate this. However the court finds it troubling that the Nassau County Department of Social Services unilaterally terminated the $250.00 per month payment to Petitioner-Guardian, apparentlyin direct violation of a court order and judgment directing them to do so. To the court's knowledge said order was never appealed, nor did the Nassau County Department of Social Services ever move to set aside said order. As noted above, this payment had been made for over four years without interruption.

The above facts present what may be fairly described by this court as one of the most difficult situations that occurs in the guardianship arena: an incapacitated person who all parties agree and that the evidence clearly establishes is in desperate need of a guardian, who has no family members available, and totally without money or assets. In the instant situation, there is the additional burden that the incapacitated person's needs are so great, and the family unit so dysfunctional, that even the appointment of an individual as a Guardian on a pro bono basis would be insufficient in view of the fact that an organization such as the Family And Children's Association is unable to cope with the staggering issues presented by this "family" unit.

The legislature, in its wisdom, had the foresight to realize that there are those truly unfortunate members of our society who live without the "safety net" of friends, family or financial resources. They have given courts the authority under the Mental Hygiene Law §81.19 (a) (2) to appoint a public agency to be the guardian. As noted by Ms. Rose Mary Bailly in the Practice Commentaries to that statute, the appointment of the Department of Social Services as the guardian may be not only the appropriate solution, but the only solution in cases such as the [*3]one faced by this court. [Baily, Practice Commentaries, McKinney's Cons. Laws of NY, Book 34A, MHL §81.19, p.220]. Indeed, the court finds that the Nassau County Department of Social Services is the only one capable of being the Guardian of RH.

Accordingly, petitioner's application to be relieved is granted. However, petitioner shall remain as Guardian to RH until the Successor Guardian assumes its responsibility. The court names the Successor Guardian to be the Nassau County Department of Social Services, which is the appropriate agency to be appointed as RH's guardian.[MHL §81.03(a); §81.19(a)(2); In The Matter of David Sutkowy, 270 AD2d 943;].

Petitioner is directed to submit a proposed order and judgment to the court within fifteen (15) days from the date of this decision.

This constitutes the decision of this Court.

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HON. Arthur M. Diamond

J.S.C.