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Matter of C.T.
2011 NY Slip Op 51065(U) [31 Misc 3d 1241(A)]
Decided on June 10, 2011
Supreme Court, Bronx County
Hunter Jr., J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 10, 2011
Supreme Court, Bronx County


In the Matter of the Appointment of a Guardian for C.T., A Person Alleged To Be Incapacitated.




916XX/11



Attorney for Petitioner: Tamara L. Stack, Esq.

Court Evaluator: David P. Lesch, Esq.

Alexander W. Hunter Jr., J.



A petition has been filed for the appointment of a guardian of the person and property of C.T., an alleged incapacitated person (hereinafter known as "the person"). The Court is 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. David P. Lesch, Esq., was appointed to serve as the court evaluator.

The hearing was held on June 9, 2011 at Fieldston Lodge Nursing Home. The person was present at the hearing but did not testify. Y.C., the person's sister, Peter G. Sack, M.D., M.C., the person's nephew, and the court evaluator testified at the hearing.

FINDINGS OF FACT


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 71 years of age. The person presently resides at Fieldston Lodge Nursing Home, 666 Kappock Street, Bronx, New York.

2. The person was admitted to New York Presbyterian Hospital on November 26, 2010 for extreme agitation, disorientation and confusion. He was thereafter admitted to Columbia Presbyterian Hospital and was then transferred to Fieldston Lodge Nursing Home on January 3, 2011. He was evaluated by Dr. Peter Sack, a board certified psychiatrist, on May 4, 2011 at the request of the petitioner. Dr. Sack reviewed the nursing home records, hospital records and evaluated the person himself. He found that the person was disoriented, he could not give his correct name to the doctor and he spoke in incoherent sentences. His opinion was that the person lacks capacity to manage his personal needs and his finances. As such, the person requires the appointment of a guardian of his person and property for an indefinite duration.

3. The person's income and assets consist of a Fidelity Investment account with a [*2]portfolio value of close to $500,000, a pension account at TIAA CREF with an approximate balance of $365,636.43 and Fidelity IRA accounts with a combined value of $438,723.81. The person also has bank accounts at Salisbury Bank and Trust Company, with an approximate balance of $405.32. The person also owns a co-op located in New York County with an approximate value of $90,000 and a house located in Sharon, Connecticut with an approximate value of $750,000. The person receives social security in the amount of 1,850.30 per month.

4. Y.C., the person's sister, stated that she is the only living sibling of the person. She brought the petition for the appointment of a guardian because she loves her brother and wants to take care of him. Y.C. resides in Massachusetts and since the person's entry into the nursing home, she has visited him at least ten (10) times. Y.C. stated that the person recognized her at first but now he no longer recognizes her. He is unable to conduct his activities of daily living such as dressing, bathing and feeding himself, without assistance and he wears diapers.

Y.C. further stated that the person owns real estate and his taxes and homeowner's insurance are in default. Her plan of care if appointed guardian is to move the person to a nursing home near her in Massachusetts since she and all of the person's family is there and they all want to have the opportunity to visit him. She would like her son, M.C., to serve as standby guardian in the event she is no longer able to serve as guardian. Y.C. also requested that she be permitted to conduct medicaid planning.

5. The court evaluator stated that when he met with the person, he spoke often about General Foods and the YMCA. He could not appropriately carry on a conversation. However, when asked if he consented to the appointment of a guardian, he stated that he did not. The court evaluator recommended that Y.C. be appointed to serve as the guardian and that her son, M.C., be appointed to serve as the standby guardian. Since M.C. was not called to testify by the petitioner, the court evaluator called him as a witness.

6. M.C. stated that he would be willing to serve as standby guardian in the event his mother is no longer able to serve as guardian. M.C. resides in Massachusetts. He is employed as a website administrator, he is married and has five children. He has never filed for bankruptcy and is willing to comply with the necessary requirements for serving as guardian.

7. The person did not testify but spoke out at random throughout the proceedings about the YMCA and what the point of the proceedings were.

8. Petitioner's attorney made a request that the court permit Dr. Sack to be paid his fee of $2,000 from the person's assets. Moreover, there was a request for the preservation of the person's assets.

CONCLUSIONS OF LAW

1. Upon the testimony adduced at the hearing, the documents submitted and the court evaluator's recommendation, Y.C., is hereby appointed to serve as the guardian of the person and property of her brother. M.C., the person's nephew, is hereby appointed standby guardian to serve only in the event that Y.C. is no longer able to serve as guardian.

2. The request by petitioner to conduct medicaid planning is hereby granted. However, the request by petitioner regarding the preservation of the person's assets was vague and any plan that the guardian may have with respect to the preservation of the person's assets, including gifting, must first be approved by the court. The assets which the person has amassed, shall be used for his care for the remainder of his life.

3. The guardian of the person is granted those powers listed under Mental Hygiene Law [*3]§81.22 which are necessary and sufficient to provide for the personal needs of the person. Those powers include as follows:

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 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.


4. 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 marshal 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 made 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;
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f) pay funeral expenses.

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

6. The guardian of the property shall, pursuant to Mental Hygiene Law §81.25; file a bond with sufficient sureties, conditioned that said guardian will, in all things, faithfully discharge the trust imposed herein, obey all the directions of the Court with respect to the trust, make and render a true and just account of all monies and other properties received pursuant to the authority granted herein and the application thereof, and of all acts performed in the administration of the trust imposed herein whenever required to do so by the Court, and will file the designation required by §81.25 of the Mental Hygiene Law.

The amount of the bond shall be the total value 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 fees for Dr. Sack will be determined in the order and judgment and upon submission of a detailed affidavit of his services.

9. 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.

10. Petitioner is directed to submit an order and judgment on notice, along 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 in a timely fashion due to the exigency of these proceedings.

Date:June 10, 2011

J.S.C.