Catholic Family Center, the court appointed Guardian of Ms. Foster, an incompetent Catholic, has requested to be removed as Guardian of her person due to a potential conflict in the possibility of being required to remove food and water in violation of both its and Ms. Foster's religious and moral values. The court grants the request pursuant to Article 81 Mental Hygiene Law Sections 81.36 and 81.37. A hearing is disposed with as no party has objected thereto, and the Court cannot force the guardian not to resign or voluntarily withdraw.

In addition, for the protection of Ms. Foster, the Court will remove the suspension of Ms. Foster's Health Care Proxy dated April 13, 2000 given to her daughter, Lisa Ryan attached as Exhibit A. That proxy was never questioned by Ms. Foster in the intervening 13 years, was undisputedly never revoked, and was reaffirmed by her to the evaluator as noted in the evaluator's prior report dated August 23, 2013 attached hereto as Exhibit B. The evaluator had further recommended that the daughter make the Health Care decisions as attached in Exhibit B.

The Court did not revoke the proxy, but only suspended it, subject to possible future restoration. The rationale by the Court to only suspend and not revoke the proxy was due to all parties acceding to the early recommendation of Catholic Family Center by Mr. Zatkowsky as the purportedly retained attorney by Ms. Foster. The Court felt that two health care determiners increased the potential for unnecessary conflict, in a case already highly contested by Mr. Zatkowsky and the children. The parties disagreed with the property aspects as well as the personal needs. The daughter was looking for assisted living for the mother based on her observations of conduct at the time, while Mr. Zatkowsky was insisting on her remaining home with 24 hour supervision.

The Court notes that the explicit Health Care Proxy directive of comfort care of food and water, even during coma, dementia, and imminent death is consistent with her Catholic religion, a copy of which Magesterium directive applicable to Catholics is attached hereto as Exhibit C. To the extent that the several exceptions in the Magestrium, or her directives may apply in the future depending on the medical conditions, that evaluation and determination has been placed by the mother in her daughter.

Since the conflict as Guardian of the personal needs does not apply to property management, the Court will continue the order appointing Catholic Family Center as the property guardian. If the guardian also wishes to voluntarily withdraw therefrom, a further written request should be submitted to the Court. However, the Court believes that the retention of Mr. Zatkowsky to represent it would create a conflict of interest, or the appearance of such conflict.

Since the request for expansion of the powers of the Court appointed personal needs guardian is now moot, the Court will not address it. However, it believes the extensive powers as granted and the limitations can be supported by the discretionary authority, which the statute explicitly places in the Court in Article 81 proceedings for the protection of the incompetent person. The necessity of court overview to assure compliance with the required complicated criteria including the common law applicable to living wills if the Health Care Proxy was not reinstated, the various medical conditions which are required before food and water can be withdrawn, the consequences to the incompetent person if not correct, the vague subjective language, and most importantly, Sec 2994(d)5ii(b) & (c), that when it comes to withdrawing food and water states specifically as one of the alternatives for resolution a "court of competent jurisdiction".

Accordingly, it is hereby:

ORDERED, that the Court does hereby accept the voluntary withdrawal resignation and removes Catholic Family Center as guardian from personal needs of Ms. Foster subject to payment of outstanding fees, and it is further

ORDERED, that the Court also does hereby reinstate in full the Health Care Proxy dated April 13, 2000 attached hereto as Exhibit A, which allows the daughter to engage in all health care decisions in accordance with her mother's directions therein.

This shall constitute the decision and order of the Court. The Court dispenses with any additional filing.

SO ORDERED.

Dated this 7th day of November, 2014 at Rochester, New York.