[*1]
Matter of L.J.L.
2013 NY Slip Op 50726(U) [39 Misc 3d 1224(A)]
Decided on May 6, 2013
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013
Supreme Court, Bronx County


In the Matter of the Application for the Appointment of a Guardian for L.J.L., A Person Alleged To Be Incapacitated.




91677/13



Counsel for petitioner - Jeffrey G. Abrandt, Esq., Goldfarb Abrandt Salzman & Kutzin LLP

Counsel for L.J.L., the alleged incapacitated person - Naomi Weinstein, Esq., Mental Hygiene Legal Service

Alexander W. Hunter Jr., J.



A petition has been filed for the appointment of a guardian of the person and property of L.J.L., an alleged incapacitated person (hereinafter known as "the person"). This 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. Muriel S. Kessler, Esq., was appointed to serve as the court evaluator. Dominick Calderoni, Esq., was appointed to serve as the Temporary Guardian. Mental Hygiene Legal Service ("MHLS") was appointed to serve as the person's counsel.

The hearing was held on April 23, 2013. Prior to the start of the hearing, the parties discussed a possible settlement, whereby the person would consent to the appointment of J.B., Esq., as special guardian for a period of one year. However, due to the person's long history of alcoholism, the court evaluator expressed concerns as to whether the person had the requisite capacity to consent to the guardianship. V.L., the person's social worker, the person, and J.B., Esq., 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 67 years of age. The person presently resides at XXXXX Bronx, New York. Prior to her admission to the nursing home, she used to live in the community in a cooperative apartment located at 133 XXXX Street, New York, New York.

2. The person was admitted to the nursing home from Roosevelt Hospital on December 31, 2012. On December 19, 2012, she was admitted to Roosevelt Hospital for observation and alcohol detoxification after L.N., the person's Adult Protective Services case worker, found her on the floor of her apartment surrounded by empty liquor bottles.

The person has had a long history of alcohol abuse. She has also been diagnosed with bipolar disorder, depression, and rhabdomyolysis, a serious condition that damages muscle tissue and causes the release of the contents thereof into the bloodstream. [*2]

3. The person is unmarried and has no children. She has one sister, M.R.L. a/k/a M.T. who resides in Monaco. Their mother, R.A.L., passed away on XX/XX/12.

4. The person receives social security income in the amount of $817.00 per month. She has two checking accounts at Chase Bank with approximate balances totaling $6,800.00, an account at Merrill Lynch with an approximate balance of $15,000.00, life insurance proceeds from her mother's policies in the approximate amount of $37,000.00, and an inheritance from her mother in the amount of $100,000.00-200,000.00. She also owns a cooperative apartment with an estimated value of $400,000.00.

5. V.L. has been the person's social worker since January 2013 and speaks with her on a daily basis. The social worker stated that the person does not require 24 hour care and believes that the person should go home. She also stated that the person does not need to complete a rehabilitation and/or detoxification program. Ms. L. believes that the person has the capacity to consent to a guardianship.

6. The person consents to a limited guardianship with J.B., Esq., serving as her guardian for a period of one year. She understood that the guardian will effectuate a safe discharge for her. L.J.L. wants to leave the nursing home as soon as possible and return to her apartment. The person plans on staying in her apartment until such time that the apartment is sold. However, if returning to her apartment is not an option, then she indicated that she is willing to live elsewhere.

With respect to treatment, the person indicated a willingness to see a therapist and attend Alcoholics Anonymous meetings. She did not wish to enter into a residential rehabilitation facility or to participate in group therapy.

7. J.B., Esq., is an attorney licensed in the State of New York. He has some familiarity with Elder law issues and Medicaid. He first spoke with the person a few days before her most recent hospitalization, approximately five months ago, after she was referred to him by a neighbor. The person had questions regarding Landlord-tenant law and eviction proceedings. He is aware of her various medical conditions.

Mr. B. wishes to serve as L.J.L.'s special guardian for a period of one year. He has already taken the guardianship course and he does not foresee any difficulties in obtaining a bond. Mr. B. plans to discharge the person from the nursing home and transition her into an assisted living facility before moving her into an apartment. He is also prepared to secure home care, establish a joint pooled trust, and seek the appointment of a geriatric care manager. As to the person's alcoholism, Mr. B. stated that it would be sufficient for the person to undergo psychotherapy and attend Alcoholics Anonymous meetings.

8. The person's counsel requests that this court, based upon the person's consent, appoint J.B., Esq., as the special guardian for a period of one year with the following powers: 1) to effectuate a safe discharge; 2) set up a trust; and 3) to determine the person's housing and place of abode with input from the person.

CONCLUSIONS OF LAW


1. The legislative purpose of Article 81 of the Mental Hygiene Law is "to promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person's life." Mental [*3]Hygiene Law §81.01.

Mental Hygiene Law §81.02(a) provides that the court may appoint a guardian for the person and/or property if the person agrees to the appointment or is incapacitated. As expressed by the court in Matter of Loccisano, 1996 NY Misc. LEXIS 597; 216 N.Y.L.J. 42, there is a dearth of case law concerning the appointment of a guardian on consent of the alleged incapacitated person pursuant to Mental Hygiene Law §81.02(a)(2). Article 81 of the Mental Hygiene Law does not provide a statutory standard for which to determine whether an alleged incapacitated person has the requisite capacity to consent to the appointment of a guardian. "In the absence of statutory discretion, a court, in determining a person's capacity to agree to a guardianship, will generally consider: the individual's ability to meaningfully interact and converse with the court; his or her understanding of the nature of the proceeding; and his or her comprehension of the personal and property management powers being relinquished." Matter of Buffalino, 960 N.Y.S.2d 627,629 (Sup Ct, Suffolk County 2013, Leis, J.).

All of the parties involved, with the exception of the court evaluator, unequivocally stated that the person has the capacity to consent to the guardianship. Although this court understands and appreciates the court evaluator's concerns as to the person's health, well-being, and her purported need for inpatient rehabilitation and detoxification, upon consideration of the testimony adduced at the hearing, the documents submitted, this court finds that the person has the capacity to consent to the guardianship. The person was able to clearly voice her opinion and articulate the reasons why she consented to the guardianship. Accordingly, the application for the appointment of a guardian is granted on consent. J.B., Esq., is hereby appointed the special guardian of the person and property of L.J.L. for a period of one year.

2. The special guardian of the person shall be authorized to:

a) work with the nursing home and effectuate a safe discharge for the person;

b) choose the place of abode, with the person's input;

c) access or release confidential records; and

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

3. The special guardian of the property shall be authorized to:

a) set up a joint pooled trust;

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

d) 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.

4. In accordance with Mental Hygiene Law §81.16(c)(1), these powers constitute the least restrictive form of intervention and are designed to assist the person in providing for her needs.

5. The special 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. [*4]

The amount of the bond shall be the total value of the person's assets.

6. The guardian shall receive as compensation for performing his duties that compensation as is provided under Mental Hygiene Law §81.28.

7. 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.

8. Petitioner is directed to settle an order and judgment on notice, with a copy of this decision, in accordance with Mental Hygiene Law §81.16(c) and the guardian is directed to file the 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.

Date:May 6, 2013

J.S.C.