Viewing the record in its entirety and this hearing having been conducted pursuant to Article 81 of the MHL and this court, having heard the proof and reviewed the petition and supporting papers together with the report and testimony of K.M., the Executive Director of Facility, B.E. the program supervisor at Facility, and M.B., Esq, the court evaluator, the court finds that the petitioner failed to prove by clear and convincing evidence that J.D. is an Incapacitated person as defined under section 81.02 of the MHL. Although the record showed that J.D. was diagnosed with schizophrenia, mental illness by itself is not a sufficient basis to determine incapacity under MHL 81.02. see generally, Rivers v. Katz, 67 NYS2d 485, 504 NYS2d 74, 495 NE 2d (1986); Matter of Grinker, 77 NYS2nd 703, 570 NYS2nd 448, 573 NE2d 536 (1991).

An appointment of a Guardian significantly compromises an individual's rights to manage and control their property. Consequently, the law imposes a high and heavy burden of clear and convincing proof on the petitioner. Id In reaching its determination, the court shall give primary [*2]consideration to the functional level and functional limitations of the person. Such consideration shall include an assessment of that person's management of activities of daily living, as defined in subdivision (h) of MHL §81.03. See MHL §81.02

The Court Evaluator, M.B., Esq. asserts that J.D. is capable of maintaining his person and an appointment of a personal needs guardian would be inappropriate. J.D. is a beneficiary of a trust, set up in 2017, managed by the Center for Disabilities whereby J.D. receives $95 every two weeks. This trust was set up by Facility for the benefit of J.D. J.D.'s social security is paid into the Trust to pay for his care and stay at Facility. M.B. contends that J.D. is capable of maintaining his financial affairs in unison with this trust and as such, a property guardian for J.D. is also inappropriate.

M.B. avers: that the least restrictive form of intervention consistent with the AIP's functional level would be to find that the AIP is not incapacitated; that given his residential placement (and assistance of the staff) and the established financial trust (which manages his money), the AIP is capable of handling his own affairs; and the petition for guardianship should be dismissed.

During the cross examination of the Executive Director of Facility, K.M., by the Temporary Guardian, M.Z., Esq, K.M. acknowledged that Facility was aware of J.D.'s diagnosis of schizophrenia when Facility accepted J.D. into their care. B.E. testified that she always watches J.D. ingest his medicine. The courts have held that mental illness by itself is not a sufficient basis for creating a guardianship. Matter of Grinker, Supra. If the petitioner anticipated a guardian appointment for J.D. with the expectation of perhaps changing J.D.'s medication, said expectation is impractical in view of the fact that a guardian appointment pursuant to MHL Article 81 does not give the Guardian the authority to administer psychotropic medication to their ward over their objection. In the Matter of Rhodanna, 823 NYS2nd 497, (2nd Dept 2006), Rivers v. Katz, 67 NY2nd 485(1986).

Accordingly, the court finds that the petitioner failed to prove by clear and convincing evidence that J.D. is an Incapacitated Person as defined under section 81.02 of the MHL. Pursuant to MHL §81.09(f), the petitioner shall pay her own attorney fees. Additionally, Petitioner shall pay the compensation to the court evaluator, the Temporary Guardian, and the appointed counsel to the AIP, all whom shall be required to serve and file an affidavit of services prior to the entry of the Order and Judgment, as to any and all services performed in this Article 81 proceeding.

Based on all of the foregoing, the petition is denied in accordance with this court's findings as spread on the record. The Order and Judgment shall be settled by petitioner within ten (10) days on appropriate notice to the court evaluator, the temporary guardian, and the court appointed counsel, along with a copy of this decision to accompany the proposed Order and Judgment.