This petition for the appointment of a personal care guardian and property management guardian for J.V. (hereinafter "J.V."), the alleged incapacitated person ("AIP"), is determined as follows.

A hearing pursuant to Mental Hygiene Law ("MHL") §81.11 occurred on November 7, 2013. The AIP was present with his assigned counsel who fully participated and opposed the petition on his behalf. The witnesses who testified were petitioner E.J.F., sister of the AIP, her nineteen year old son, C.F., and the Court Evaluator.

The certainty of words always depends upon the integrity of the speaker. "For the ear tests words, as the mouth tastes food." JOB 34:3. I had the unique opportunity to observe the testimony of the witnesses. In so doing, I considered the following factors in weighing their testimony: the interest or lack of interest of the witness in the outcome of the proceeding, potential bias or prejudice on the part of the witness, the appearance, sincerity, demeanor, the manner in which the witness gave testimony, the opportunity the witness had to observe the facts about which he or she testified and the probability or improbability of the witness' testimony when considered in the light of all of the other evidence. (See PJI, Vol. 1A, 1:8.) Each witness was credible. (PJI, Vol. 1A, 1:41; Goldstein v. Guida, 74 AD3d 1143, 1144 [2d Dept. 2010]; Ivani v. Ivani, 303 AD2d 639, 640 [2d Dept. 2003].)

The court has taken judicial notice of undisputed court records and files. (Kingsbrook Jewish Medical Center v. Allstate Insurance Company, 61 AD3d 13, 20 [2d Dept. 2009]; Khatibi v. Weill, 8 AD3d 485 [2d Dept. 2004].)

The following is the court's decision, stating the facts it deems essential. (Gouvis v. Gouvis, 44 AD3d 618 [2d Dept. 2007], lv appl den'd 10 NY3d 701 [2008]; Conklin v. State, 22 AD2d 481, 483 [3d Dept. 1965]; CPLR §4213[b].)

1. The petitioner and AIP are half-siblings. They grew up together. At some point, the AIP moved to Florida, and they lost touch. Petitioner was able to resume their relationship approximately six (6) years ago when she learned he had relocated to California.

2. In early 2012, petitioner received a telephone call that the AIP was in a hospital in San Francisco. She left for San Francisco with her son C.F. on February 11, 2012.

3. The AIP was living alone in an apartment at that time. No other family members resided near him.

4. The AIP had previously worked for eighteen (18) years as a security guard for the St. Anthony's Foundation, described as a soup kitchen, at the time of his hospitalization.

5. Petitioner found the AIP in a coma and was advised that he was not expected to live. He did nevertheless. The AIP remained hospitalized the entire time petitioner and C.F. stayed in San Francisco.

6. While the AIP did improve, he experienced seizures on a daily basis. His brain functioning was uncertain. The AIP lost his job because of the dubitancy of his mental and physical health. The evidence indicates that the AIP's short term memory limitations are permanent.

7. The AIP does have a retirement plan through the St. Anthony's Foundation. The balance as of March 31, 2012 was $54,465.71 (Court Ev. Report, Ct. Ex. 1, Ex. "G"). He is also the registered owner of a motor vehicle, the year, make and model of which was not identified at the hearing. He possesses a California driver's license. The AIP previously had a checking [*2]account with Provident Credit Union which carried a zero balance (Id., at p. 3, ¶13).

8. The AIP traveled to New York with petitioner and C.F. in April 2012 to reside with them. He continues living with them in Hopewell Junction, New York. He has his own room and is capable of engaging in the basic activities of daily living such as bathing, shaving, preparing coffee and snacks, helping feed the pets and greet people at the door. Petitioner prepares his meals, does his laundry, takes him shopping, for haircuts, and drives him to and attends his medical appointments.9. Petitioner has been able to obtain Social Security Disability benefits and coverage through Medicaid for the AIP.

10. The AIP owes approximately seventy thousand dollars ($70,000.00) in outstanding medical bills.

11. The uncontradicted credible testimony offered by petitioner and corroborated by C.F. is that the AIP suffers from acute short term memory loss. They provided vivid examples of the AIP's complete inability to recall conversations, experiences, activities of daily living and doctor appointments within minutes after they occurred. In addition, C.F. recounted multiple instances where the AIP would repeat an activity of daily living, such as making coffee, because he would forget he had already performed that task.

12. The AIP is required to take between thirteen (13) to fourteen (14) medications three times per day for various ailments, including HIV, diabetes, seizures, coronary artery disease and severe vascular disease. Petitioner has developed a protocol for the AIP by placing the medications in clear plastic bags with written instructions. This enables C.F. and other household family members to insure the AIP receives them in a timely fashion.

13. The evidence further indicates that the AIP is not in a position to operate a motor vehicle nor manage his modest finances due to his compromised mental functional abilities.

14. There is an outstanding claim for disability benefits for the AIP pending in California. Its status is on hold pending a determination that J.V. was disabled during the time under consideration (Petitioner's Ex. 1).

15. St. Anthony's Foundation has declined to release retirement benefits to J.V. based upon its determination that he is incapacitated, and therefore, not able to execute documents to facilitate the issuance of such benefits.

16. The Court Evaluator recommends a guardian for limited personal care and property management needs for the AIP. She testified that he has severe memory issues and requires vigilant assistance with his medications, transportation needs and medical appointments. Moreover, the Court Evaluator expressed serious reservations that he has the ability to live independently. She supports the appointment of petitioner as the AIP's guardian.

MHL §81.02(b) requires that a determination of incapacity

must be based on clear and convincing evidence that the person who is the subject of the proceeding is unable to provide for his or her personal and/or property management needs and cannot adequately understand and appreciate the nature and consequences of that inability. Petitioner bears the burden of proof. (Matter of Kustka, 163 Misc 2d 694, 698 [Sup Ct Queens Cty, 1994].)

Petitioner has met that burden based upon the evidence presented at the hearing. J.V. is an incapacitated person as defined by the statute and discussed by various appellate decisional [*3]authorities. J.V. is likely to suffer harm because he is unable to provide for his personal needs such as his medications, driving and medical appointments and management of his property, and does not adequately understand and appreciate the nature and consequences of such inability. (Matter of Barbara N., 104 AD3d 948 [2d Dept. 2013], lv appl den'd 21 NY3d 1061 [2013].) The evidence indicates that there is no other available resources or other alternatives to protect J.V. other than a guardianship. (Matter of Kustka, supra at 699.) The appointment of J.V.'s sister, E.J.F., as his guardian for his personal care and property management needs is appropriate. (Matter of Barbara S., 99 AD3d 1008 [2d Dept. 2012].) The guardianship shall be for an indefinite duration.

The guardian shall have the following personal care powers:

1. Determine who shall provide personal care or assistance;

2. Make decisions regarding social environment and other social aspects of J.V.'s life;

3. Determine whether J.V. should travel;

4. Determine whether J.V. should operate a motor vehicle;

5. Authorize access to or release of J.V.'s confidential records;

6. Apply for government and private benefits on behalf of J.V.;

7. Insure that J.V.'s medications are administered according to the protocol established by J.V.'s medical providers;

8. Choose the place of abode, however, placement of J.V. in a nursing home or residential care facility as those terms are defined in Public Health Law 2801, or other similar facility shall not be authorized without the consent of J.V. or leave of the Court;

9. Consent to or refuse generally accepted routine or major medical or dental treatment, and to authorize, refuse, withhold, or withdraw life support and devices towards such ends, provided that treatment decisions are made consistent with the procedure set forth in Mental Hygiene Law section 81.22(a)(8); and,

10. Arrange for health care and personal aides to assist J.V. to remain in Hopewell Junction, New York.

The guardian shall have the following property management powers:

1. Access J.V.'s bank account(s) wherever situated in

order to pay his bills, insurances, and taxes;

2. Marshall all of J.V.'s assets and establish a guardianship account;

3. Identify all of J.V.'s just debts;

4. Dispose of J.V.'s motor vehicle for the highest sales price and deposit the net proceeds into the guardianship account for J.V.'s benefit;

5. Obtain and open J.V.'s mail, deposit any checks into the guardianship account in order to pay his bills and secure and deposit his pension check and social security check;

6. Serve as representative payee for J.V.'s social security benefits; and,

7. Receive J.V.'s pension checks from St. Anthony's Foundation administered by American United Life Insurance Company;

8. Pursue, negotiate and resolve J.V.'s long term disability claim (#57744) pending with The Guardian Life Insurance Company of America; and, [*4]

9. Surrender J.V.'s California driver's license.

The powers granted to the guardian are the least restrictive form of intervention necessary to provide for J.V.'s personal needs and property management in light of his understanding and appreciation of the nature and consequences of his functional limitations. (Matter of Barbara P., 72 AD3d 827 [2d Dept. 2010], lv appl dism'd 15 NY3d 828 [2010].)

Attorney Christopher M. Canfield, 963 Route 6, Mahopac, New York 10541, (845) 628-4000 is appointed from the Part 36 Fiduciary List to serve as Court Examiner. (MHL 81.32.)

The guardian shall be required to complete a training program as required by MHL 81.39 and provide proof of completion no later than ninety (90) days from the date of this decision. The filing of a bond, pursuant to MHL 81.25, is waived. The guardian is directed to promptly comply with MHL 81.26 (Designation of clerk to receive process), 81.27 (Commission to guardian), and 81.30 (Initial Report). The guardian is directed to file the first annual report (MHL 81.31) in the month of May, 2014. J.V. shall receive copies of the initial and annual reports. (MHL 81.15[b][7], [c][9].)

The guardian shall be compensated pursuant to SCPA §2307. The reasonable compensation to be awarded to the court evaluator shall be based upon an affirmation/affidavit of legal services. (MHL 81.09[f].) Similarly, the reasonable compensation to be awarded counsel for J.V. shall be based upon the same type of submission. (MHL 81.10[f].)

Any extant Power of Attorney or Health Care Proxy executed by the incapacitated person are null and void, effective immediately.

Notice of any future applications with respect to this guardianship shall be served upon the incapacitated person, guardian for his personal care and property management needs, the Court Evaluator, Court Examiner and Attorney Peter McGinnis.

The petitioner's attorney is directed to prepare a Judgment consistent with the foregoing and serve a copy of it with notice of settlement upon counsel for the incapacitated person, and the Court Evaluator within ten (10) days of the date of this decision.

Counsel for the parties are directed to forthwith retrieve the physical evidence introduced at the hearing within ten (10) days of the date of this decision and preserve the same through

any appellate process.

The foregoing constitutes the findings of fact and decision of the Court.

Dated:Poughkeepsie, New York

November 18, 2013

ENTER

HON. James D. Pagones, A.J.S.C. [*5]