Cuthbert Cox testified that he is the oldest son of the AIP and resides in Richmond, [*3]Virginia. He visits the AIP on a regular basis. Cuthbert testified that he is retired and receives two pensions in addition to social security. Cuthbert further stated that he is currently employed as a part-time school bus driver.

Cuthbert testified that after Claudette's death, cross-petitioner assumed control of the AIP's finances. Cuthbert stated that once Bernadette took over managing the AIP's finances he developed concerns. Cuthbert testified that unlike his sister, Claudette, who provided an annual printout, Bernadette did not provide full disclosure and her expenditures did not reconcile. On cross-examination, Cuthbert explained that Bernadette's annual printout contained discrepancies in monthly payments that she was unable to explain. Despite these concerns, Cuthbert conceded on cross-examination that Bernadette does an excellent job in coordinating the care of the AIP.

In support of the cross-petition, Bernadette testified and produced her brother, Donald Cox. Additionally, Dr. Tien Tsai Tsai, a treating physician of the AIP, testified, via telephone.

Bernadette testified that she resides in Long Island, New York and visits the AIP on a weekly basis. She also testified that she has been a registered nurse since January 1976. In addition, she has been employed as supervisor of the intake and case management departments for the Visiting Nurse Association of Long Island for the past four years.

In 2003, with the knowledge of her siblings, Bernadette testified that the AIP put her name on the deed to the house so that she could have access to the equity in the house to care for the AIP. She testified that the AIP added her name to the deed because she felt that Russell, Michael, and Donald were not in a position to manage her medical care and financial affairs. That same year, Bernadette testified that the AIP took out a $200,000 home equity line of credit against the house to perform renovations and maintenance. Cross-petitioner also testified that by 2009, there was a balance of approximately $40,000 remaining on the home line of equity. Bernadette testified that by 2010 the AIP's home equity line of credit had been fully cashed out. In 2010, her sister, Claudette also passed away. She testified that since her sister's death she has been solely responsible for managing the AIP's medical care and remaining assets. She indicated that by 2013 a $100,000 deficit had been created regarding the AIP's household finances. Bernadette testified that she paid the deficit with assistance from her brother-in-law and nephew and by borrowing money from her life insurance policy, retirement account, and credit cards. No [*4]monetary assistance was received from her siblings towards paying off the deficit. She further testified that the only time she was able to defray expenses was upon the sale of the AIP's timeshare in Aruba. When advised that the proceeds of sale would be expended on the AIP's care and not shared among the siblings, Bernadette stated that she was physically attacked by Russell.

Bernadette testified that the increased cost of care, coupled with the impending cessation of the hospice program and the inability to pay for the AIP's care, resulted in a family meeting wherein she and her siblings agreed that the AIP's residence would be sold. Bernadette testified that a broker was engaged, a potential purchaser had been identified, and a contract of sale was negotiated, however, that sale was not consummated because the issue of sharing the proceeds of sale among the siblings arose again.

On cross-examination, Bernadette testified that she is a joint account holder with the AIP on checking accounts at Capitol One Bank and Chase Bank, respectively. Bernadette testified that the AIP's monthly income consists of social security and pension benefits, which total $2,100 to $2,200 but the AIP's monthly expenses are around $4,000 to $5,000 leaving the AIP with a $2,800 monthly deficit. She explained that she supplements the AIP's income with her own funds to meet monthly obligations. Bernadette denied ever using the AIP's money for her own personal expenses but could not account for a number of expenditures. Bernadette stated that "I never nickeled and dimed this account. I just did what I had to do. I had receipts and stuff, but never sat down and kept a log for every penny that I spent on my mother or that I spent on myself." She also admitted that she sold half of the AIP's jewelry in her possession to pay the AIP's expenses and is holding onto the other half for when the AIP passes away.

Bernadette described the AIP as bed bound, contracted, nonverbal and unresponsive, and unable to do anything. She indicated that the AIP has two, stage 4, decubitus ulcers that require regular packing and dressing. While at home the AIP's ulcers became infected and in November 2010 necessitated her hospitalization for about ten days. Thereafter, she was discharged to a skilled nursing facility for wound care, where the AIP remained for a period of three months. During this period, Bernadette testified that Viola was paid to go to the nursing home everyday except weekends to provide care for the AIP. Viola continued to provide care upon the AIP's discharge home. Additionally, Bernadette indicated that she arranged for Metropolitan Jewish Hospice Program to provide weekend hospice care for the AIP to defray her out of pocket costs. She acknowledged that Russell assists with the changing of the outer dressing of the wounds, but due to the specialized nature of the care required he cannot change the entire wound. Bernadette explained that hospice had advised her that its services will be discontinued because the AIP had been stabilized. Bernadette further explained that the ulcers are at a stage that requires twenty-four hours skilled care, and that she cannot continue to afford to pay for this level of care.

Bernadette argues that Russell is unfit to serve as guardian because he is irresponsible and incapable of providing for the AIP's complex needs. She specifically states that Russell does not financially contribute to the AIP's expenses, has an outstanding warrant, is in violation of one or more child support orders, has never taken the AIP to doctor appointments, and does not concern himself in the AIP's welfare.

Dr. Tsai Tsai, the AIP's treating physician at Metropolitan Hospice Care, testified that he visited the AIP at her home in Brooklyn to perform a hospice evaluation. He testified that the AIP is in the end-stage of dementia, not getting better, and like a "baby" requiring hospice level care. Dr. Tsai Tsai explained that the AIP's health is declining due to senile dementia and she is totally dependent and bed bound. According to Dr. Tsai Tsai, the AIP is a good candidate for a skilled nursing home environment and would benefit from receiving 24 hours of skilled medical care.

The Court Evaluator, Stephen Donaldson, Esq., had a family meeting with petitioner, cross-petitioner, and their three brothers at the home of the AIP. During his visit to the home, he also observed the AIP in her bedroom. He also reviewed the following documents: Dr. Barrie Raik's Medical Evaluation dated November 1, 2011; list of the AIP's assets, which included the AIP's house, known bank accounts, and income; durable power of attorney dated January 4, 2001; and last will and testament executed by the AIP in 2003.

Based on his investigation, the Court Evaluator indicated that the AIP is bedridden, non-verbal, and uncommunicative. She also requires oxygen when her breathing becomes labored. He found that the AIP suffers from dementia that continues to progress.

The Court Evaluator testified that the AIP's assets consist of her monthly income of roughly $2,100 and her home, which she co-owns with Bernadette. The AIP executed a durable power of attorney in 2001, wherein she appointed cross-petitioner and Claudette as her agents. The AIP further executed a will in 2003, in which she devises her property in equal shares to her living children.

The Court Evaluator states that the parties have competing positions. Bernadette and Donald take the position that the house should be sold to continue to afford care for their mother. Russell, Michael, and Cuthbert contend that because their mother has done better living at home, compared to being in a hospital, the house should not be sold. The Court Evaluator concluded that none of the AIP's children are financially dependent on her, but her sons, Russell and Michael, rely on the family home for a place to reside.

The Court Evaluator recommended that the AIP's durable power of attorney be replaced with a court-appointed guardian, which would provide greater accountability for the AIP's assets, and that cross-petitioner, Bernadette Cox, be appointed guardian of the personal needs and property management for the AIP.

The medical condition of Willian Monica Cox is undisputed. The record establishes that she has advanced dementia, is bedridden with two, stage 4, decubitus ulcers, and is non-verbal and unable to communicate. Both petitioner and cross-petitioner concur that as a result of the AIP's medical condition, the AIP requires 24 hour care and supervision. The Court Evaluator's report confirms the AIP's condition and the level of care necessitated by the AIP.

Based on the record and the testimony adduced at the hearing, the Court finds by clear and convincing evidence that Willian Monica Cox is an Incapacitated Person, who is unable to provide for her personal needs and property management, and cannot adequately understand and appreciate the nature and extent of such inability. In reaching this determination, the court considered the functional level and functional limitations of the AIP. Mental Hygiene Law § 81.02 (a).

In determining the necessity for the appointment of a guardian, however, the Court must consider the report of the court evaluator (Mental Hygiene Law § 81.02[a] ) and the "sufficiency and reliability of available resources" (Mental Hygiene Law § 81.02[a][2]) which may be available to satisfy the AIP's personal needs and property management without the need for a guardian. Mental Hygiene Law § 81.03 (e) defines "available resources" as powers of attorney, health care proxies "

While the incapacity of Willian Monica Cox is undisputed, Bernadette contends that the appointment of a guardian is unnecessary due to the durable power of attorney and health care proxy executed by the AIP, both of which designate, Bernadette, as agent. She contends that these [*5]advance directives are sufficient to provide for the personal needs and property management of the AIP.

In the case at bar, the report of the Court Evaluator found that Willian Monica Cox's condition will not improve and is likely to become more severe in the future. The Court Evaluator confirmed that the AIP's monthly expenses, consisting largely of medical related bills, exceed her monthly income. Significantly, the Court Evaluator found that the durable power of attorney did not adequately provide for the AIP because of the inherent conflict of interest existing between petitioner, cross-petitioner and their siblings regarding the disposition of the AIP's house. Russell disagreed with Bernadette's plan to sell the house since he distrusted her, as agent for the AIP, managing the proceeds of any sale. On the other hand, the Court Evaluator, found that Bernadette was skeptical of Russell's motivations in commencing the guardianship which has prevented the sale of the house and permitted him to maintain his right to occupy the house during the lifetime of the AIP, and at the same time, preserve any potential future interest he may have in the property.

In addition to the Court Evaluator's report, the court's independent assessment of the AIP's affairs under the durable power of attorney establishes that it was insufficient to protect the AIP's best interests. Admittedly, Bernadette acknowledges that she comingled her personal funds with the AIP's assets by depositing her personal funds into the joint bank account she held with the AIP. As a result of comingling her personal funds with the AIP's assets, Bernadette was unable to distinguish what funds belong to the AIP and what funds belong to her. Additionally, the documentary evidence produced by petitioner shows that Bernadette made cash withdrawals and various expenditures from the AIP's accounts for personal items such as pharmaceuticals, clothing, groceries and fast food. While these transactions may not have amounted to misappropriation, as petitioner asserts, the court is concerned that Bernadette could not properly account for the assets that she managed on behalf of the AIP.

It is well settled that a power of attorney creates a fiduciary relationship between principal and agent. See, e.g., Matter of Salvation Army (Ferrara), 7 NY3d 244, 819 N.Y.S.2d 215 (2006); Semmler v. Naples, 166 AD2d 751, 752 (3d Dept. 1990), appeal dismissed 77 NY2d 936; Moglia v. Moglia, 144 AD2d 347 (2d Dept. 1988); Matter of Roth, 283 AD2d 504, 724 N.Y.S.2d 476 [2nd Dept.2001]; Mantella v. Mantella, 268 AD2d 852, 701 N.Y.S.2d 715 [3rd Dept.2000]; Guardianship of Kent, 188 Misc 2d 509, 729 N.Y.S.2d 352 [Sup. Court, Dutchess County, 2001]). [A fiduciary's] duty, as far as it relates to [a] [guardianship] proceeding, includes keeping the IP's property separate and accounting for it when called upon to do so (Guardianship of Kent, supra.; In re Garson, 17 AD3d 243 (1st Dept. 2005); Matter of Guardianship of Kent, 188 Misc 2d 509 (Sup. Ct. Dutchess Co. 2001); see also Restatement (Third) of Agency § 8.12.

Fifth, the court should consider the educational, professional and business experience relevant to the nature of the services sought to be provided. Russell studied nursing for three years at Boston College, but did not complete the degree program. Bernadette, on the other hand, is a licensed Registered Nurse who has 38 years cumulative experience in the profession. She presently works as a Perinatal/Pediatric Nursing Supervisor. She has also worked as a Nurse Manager in home health care and a Nursing Supervisor at the Visiting Nurse Association of Long Island, Inc.

Settle Order and Judgment within 15 days after the date hereof.

This constitutes the Decision and Order of the Court.

_______________________________HON. KATHY J. KINGJ.S.C.