Before the court is a cross-petition by Pam-Eve Nicholson (the cross-petitioner) seeking to be appointed guardian of the person of Andrew C. (Andrew). Andrew's mother and legal guardian, Mildred C.^[FN1] (Mildred), died on May 1, 2017. Before her death, Mildred renounced and consented to the appointment of the cross-petitioner, who is Andrew's cousin. A guardianship petition initially filed by NYSARC was withdrawn upon the filing of the cross-petition. Jurisdiction is complete and a guardian ad litem was appointed for Andrew. Letters of guardianship of Andrew and of his post-deceased twin brother, Douglas C., who was also intellectually disabled, had been issued to Mildred on September 5, 1980. Subsequently, by decree dated July 2, 1996, NYSARC was appointed stand-by guardian for Andrew.

A hearing was held on February 1, 2017, continued onto March 8, 2017, and September 27, 2017, during which testimony was adduced from various witnesses, including Andrew, Mildred, the cross-petitioner, and the individuals whom Andrew fondly refers to as "my staff:" Donatella Horavath, Andrew's medicaid service coordinator, and Rosetta Williams, the manager at the AHRC supported residence where Andrew lives. The Court had the opportunity to observe the demeanor of Andrew, finding Andrew to be an extremely personable individual who is able to express his preferences and desires, and who enjoys robust support from his family and the staff at the residential facility wherein he resides. However, even with support, it is also clear that Andrew demonstrates a want of understanding arising from his intellectual disability that results in the inability to manage his own affairs, including making medical and financial decisions. Upon the record, the Court is satisfied that Andrew continues to be a person in need of a guardian pursuant to Article 17-A of the Surrogate's Court Procedure Act, and that it is in his best interest that the cross-petitioner be appointed the guardian of his person. Decisions by the guardian for Andrew shall be made in meaningful consultation with Andrew, taking into consideration his wants and preferences.

During the course of this proceeding, the existence of a trust created for the benefit of Andrew, which NYSARC believed was administered by NYSARC or AHRC (the trust), was revealed. The court requested NYSARC to furnish information about the trust, including the amount in the trust and what disbursements had been made. Questioned further, it was revealed that Andrew's trust account was valued at almost $100,000.00,^[FN2] yet up until three months ago, not a single dollar had been spent on Andrew's behalf since its creation in 2009. Ms. Williams testified that she was unaware of trust monies that could benefit Andrew, that Andrew, whose source of income is social security benefits of which AHRC is the designated payee, lives on food stamps and has a clothing allowance of $250.00 for the year, with Mildred or the cross-petitioner providing some spending money in a nominal amount. Andrew, who is 51 years old, testified that he does not have money to go to the movies, that he is unable to attend sports games or to buy his favorite and coveted sports jerseys. He further testified that he mostly eats food that his elderly mother ^[FN3] shared with him out of her "Meals on Wheels" ration, stating "we divide the meals — with me and for her. And we have to divide each," explaining that they split the food containers among themselves.

It is deeply troubling that over the course of seven years since the establishment of the trust, no steps had been taken by the trustees whatsoever to ascertain or meet the needs of Andrew, despite the clear intention of the trust that it be used for Andrew's benefit. The duty of trustees to act in the best interest of the trust beneficiary carries with it the concomitant obligation that trustees make themselves knowledgeable about a beneficiary's condition and needs.

Trustees, institutional and individual alike, bear an affirmative obligation to ascertain the [*2]beneficiary's educational, medical, or quality of life needs in order to use trust money for the enhancement of the beneficiary's life, regardless of whether the trust is pooled ^[FN4] or otherwise.

Indeed, the plain language of Andrew's trust states that its purpose "is intended to provide, in the sole and absolute discretion of the Trustees, extra and supplemental items for the best interests of the Designated Beneficiary including, without limitation, the care, comfort, education and training of the Designated Beneficiaries ... "^[FN5] It is unacceptable for trustees to simply sit back and do nothing until a request is made. In serving as trustee over a beneficiary living with disabilities, a fiduciary's responsibility is "something stricter than the mere morals of the marketplace . . . but a punctilio of honor most sensitive," In re JP Morgan Chase, NA, 38 Misc 3d 363 (Sur Ct New York County2012) citing Meinhard v Salmon, 249 NY 458, 464 (1928) (Cardozo, C.J.). "Both case law and basic principles of trust administration and fiduciary obligation requires the trustees to take appropriate steps to keep abreast of [the beneficiary's] condition, needs, and quality of life, and to utilize trust assets for his actual benefit," In re JP Morgan Chase, supra at 868. See also Matter of Mark C.H., 28 Misc 3d 765 (Sur Ct, New York County 2010) The trustees bear an affirmative duty to inquire with diligence into the quality of Andrew's life and to apply trust income towards significantly improving it.

At the final hearing date in September 2017, the Court was pleased to learn that a list of items had finally been provided from Andrew's trust for Andrew's benefit, including a watch, an electric shaver, bedding, sneakers, and a desktop computer. Moving forward, it is expected that Andrew's trust assets will continue to be spent for its intended purpose, that is to enhance Andrew's quality of life in proactive consultation with Andrew and his guardian to determine his needs and preferences.

The cross-petition is hereby granted, the petition by NYSARC is withdrawn, and letters of guardianship of the person of Andrew C. shall issue to Pam-Eve Nicholson, upon duly qualifying according to law.