On March 12, 2020, Sylvia Armanno, Commissioner of the Delaware County DSS ("DSS"), filed a petition pursuant to Article 81 of the Mental Hygiene Law, seeking the appointment of a guardian of the person and property of K. K., an Alleged Incapacitated Person [*2](AIP). The Court issued an Order to Show Cause dated March 13, 2020, appointing Mental Hygiene Legal Service (3rd Dept.) as counsel to represent AIP and scheduling a hearing on May 29, 2020. The Order to Show Cause also appointed Sylvia Armanno, Commissioner of the Delaware County DSS, as temporary guardian with certain powers enumerated therein.

Due to the closure of the courts following the Covid-19 pandemic, the Court held an attorney's conference via Skype for Business on May 29, 2020, at which time Stephen Baker, Esq. appeared on behalf of Sylvia Armanno, Commissioner of the Delaware County DSS, petitioner herein; Mental Hygiene Legal Service (3rd Dept.), Susan Lettis, Esq., of counsel, appeared as counsel for AIP; and Andrew Van Buren, Esq. appeared on behalf of D. P. and K. P., AIP's daughter and daughter-in-law, respectively, and interested persons on notice pursuant to Mental Hygiene Law §81.07. At the conference, the attorneys agreed to the continuation of the temporary guardianship appointment to potentially resolve outstanding issues for AIP, and the Court granted an open-ended adjournment of the hearing. The Court also sealed the record in this matter by Order dated May 29, 2020.

The matter was not resolved by the temporary guardianship authority, and the Petitioner requested the hearing be reconvened. The Court conducted the hearing via Skype for Business on August 21, 2020, at which time Stephen Baker, Esq. appeared on behalf of Petitioner; Mental Hygiene Legal Service (3rd Dept.), Susan Lettis, Esq., of counsel, appeared on behalf of AIP; Andrew Van Buren, Esq. appeared on behalf of K. P. and D. P., both of whom appeared by telephone; and C. K., AIP's sister, another interested person, appeared. The presence of AIP was dispensed with by the Court for good cause shown, pursuant to Mental Hygiene Law §81.11(c)(2).

At the conclusion of the hearing, the Court set dates for written summations. Mr. Van Buren submitted a written summation dated August 21, 2020, Mr. Baker submitted a written submission dated September 3, 2020, and Ms. Lettis submitted a written submission dated September 11, 2020.

In support of Petitioner's case, Mr. Baker called Hailey Mae Newell, Deborah Moran, and Sharon Radkte. Ms. Lettis and Mr. Van Buren did not call any witnesses. The Court afforded Mr. Van Buren the opportunity to cross-examination witnesses on behalf of K. P. and D. P., based on their status as interested persons and their appearance at the hearing with counsel. At the close of the hearing, Ms. Lettis made a motion to dismiss, which she renews in her closing statement.

Hailey Mae Newell is a social work at Cooperstown Center for Rehabilitation ("Cooperstown Center"), where AIP resides. She has worked there for a year and interacts frequently with AIP, whom she described as pleasant and social. She did not have any information about AIP's finances. AIP executed a Power of Attorney prior to Ms. Newell starting at Cooperstown Center. She has not assessed AIP's cognitive ability.

Deborah Moran is a unit manager who oversees the general care of residents at Cooperstown Center. AIP resides on the unit managed by Ms. Moran, and she sees AIP daily. She reported that AIP has aphasia and uses a communication board to express himself. He struggles with communication but can point to things to make his wishes known. AIP is non-ambulatory and uses a wheelchair. According to Ms. Moran, AIP's personal needs are met by staff members at Cooperstown Center. Ms. Moran denied having any information about how [*3]AIP handles his finances, and she doubted whether he would be able to write a check. She was not aware of any current discharge plan in place for AIP.

Sharon Radkte is a Delaware County DSS senior program specialist and reviews Medicaid applications submitted by Delaware County residents. She has served in this position since 2012 and expressed familiarity with Medicaid regulations. AIP's chronic Medicaid application was first submitted in December 2015 by AIP's wife.

When Ms. Radkte reviewed this original application, she completed a spousal budgeting worksheet to examine the individual and jointly owned assets of AIP and his wife. AIP had $30,000 in excess resources in his name, prompting Ms. Radkte to send a letter to AIP with suggestions to address the excess resources. The application was approved in 2016. Petitioner's Exhibit 1, in evidence, is the institutionalized spouse budget worksheet documenting the excess resources.

Early in each subsequent year, a recertification notice was generated and sent to Mrs. K., requesting updated information on resources. The case was recertified for each year through 2018. Mrs. K. died on January 7, 2019; the case was due to recertify on February 28, 2019. Petitioner's Exhibit 2, in evidence, is the letter sent by Ms. Radkte to D. P., dated January 14, 2019. The family had advised Ms. Radkte that Mrs. K. died, prompting her to send the letter to explain AIP's case would be recalculated for a single individual. The letter requested updated information to determine AIP's individual resource level.

Ms. Radkte expressed concern about AIP's bank statements showing a lot of activity. Ms. Radkte and her office have had various communications with D. P. Ms. Radkte's review of receipts for expenses and bank statements raised concern that AIP's funds were inappropriately not being used for his care, and the case was referred to the County Attorney's Office. Petitioner's Exhibit 3, in evidence, is a spreadsheet created by DSS, purporting to show the amount of AIP's funds used inappropriately by D. P. and/or K. P., as agents under AIP's Power of Attorney. Ms. Radtke highlighted the spreadsheet entry for February 6, 2019, which shows $4,425.85 "cashed out for death benefits."

Ms. Radkte attempted to resolve any issues by notifying AIP's family that his income was to be used toward the cost of his care only and communicated the specific monthly amount to be used toward his care. To date, Ms. Radkte has not received information she requested about the cash value of three life insurance policies previously transferred to Mrs. K.. Those policies must be dealt with through an estate proceeding in Surrogate's Court.

If AIP's Medicaid case were to close, he would become personally responsible for the cost of his care. To date, AIP continues to be recertified for chronic Medicaid coverage. Ms. Radkte has chosen to exercise professional discretion, allowable under currently applicable Medicaid regulations, to disregard the life insurance policies, explaining that she did not want AIP to lose his Medicaid coverage for his care.

Petitioner's Exhibit 4 is a one-page letter from Columbian Mutual Life Insurance Company. Based on Ms. Lettis's objection regarding the lack of proper foundation for the document's admission into evidence, the Court allowed the document to be admitted not for the truth of the matter asserted but to show what Ms. Radtke relied on in her decision-making process.

The Court sustained a similar objection to Petitioner's Exhibit 5, a 15-page collection of statements from the First National Bank of Groton. This exhibit was also conditionally admitted in evidence, not for the truth of the statements but only for the purpose of showing what Ms. [*4]Radkte relied on during her investigation.

On cross-examination by Ms. Lettis, Ms. Radkte reaffirmed that under the Medicaid regulations, she has discretion about how to treat Mrs. K.'s life insurance policies. Petitioner was unable to get information about the life insurance policies with its temporary guardianship authority. She confirmed that when considering a submitted Medicaid application, DSS may receive information from the applicant's family members, regardless of whether it is the applicant's spouse or agent under a power of attorney. Ms. Radkte is not aware of the nursing home trying to evict AIP, or that AIP had an unpaid balance there.

AIP does not have a prepaid funeral account, and if AIP is over-resourced for Medicaid, the purchase of such an account is a legitimate way to spend down excess resources. If AIP's application were now denied, he would have the right to a fair hearing.

On Mr. Van Buren's cross-examination, Ms. Radkte confirmed she has spoken frequently and emailed with D. P. and K. Perez. Ms. Radkte believes D. P. and K. P. are attempting to probate Mrs. K.'s estate, though AIP may have been the named executor in Mrs. K.'s will. D. P. and K. P. told Ms. Radtke that they contacted the life insurance company and were told they need letters of administration to deal with the policies.

When Mrs. K. died, D. P. and K. P. told Ms. Radkte they were cleaning up AIP's home to try to sell it. They said they had a buyer interested in purchasing. Ms. Radkte was not aware of whether the property has been appraised. Delaware County has a lien against AIP's property, so any proceeds from the property's sale would go to Delaware County.

Ms. Radkte confirmed to the Court her understanding that AIP is now the sole owner of the marital residence and would be the one who would have to effectuate its sale. She also acknowledged that the insurance company cannot provide information to Ms. Radkte, despite the temporary guardianship, if AIP is not the owner of the policies. She is also aware that AIP's pension goes directly to Cooperstown Center, which, after application of $50 to his personal account, satisfies his net available monthly income, or NAMI, obligation.

The Court may appoint a guardian for a person if the Court determines that the "appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person." MHL §81.02(a)(1). The appointment must also be based on either the consent of the person or a finding, by clear and convincing evidence, that the person is incapacitated. Id. at MHL §81.02(a)(2). The determination of incapacity hinges on whether the person is likely to suffer harm because the "person is unable to provide for personal needs and/or property management and the person cannot adequately understand and appreciate the nature and consequences of such inability." MHL §81.02(b).

In determining incapacity, the court must give primary consideration to the person's "functional level and functional limitations," including an assessment of the person's ability to manage the activities of daily living related to property management, such as money management and banking; his understanding and appreciation of the nature and consequences of any inability to manage these activities; his preferences, wishes, and values regarding management of these affairs; and the nature and extent of the person's property and finances, in the context of his ability to manage them. See Matter of Maher, 207 AD2d 133 (2d Dept 1994); MHL §§ 81.02(c); 81.03(h).

Even if incapacity is established, a guardian is to be appointed only as a last resort and in a manner constituting the least restrictive form of intervention. MHL§ 81.02(a)(2); see also, Matter of Daniel TT., 39 AD3d 94, 97 (3d Dept 2007); Matter of Joseph V., 307 AD2d 469, 470 (2003).

The Court makes the following findings of fact based on the evidence proffered at the hearing. AIP is a long-term resident of Cooperstown Center for Rehabilitation and Nursing, where he will continue to reside indefinitely, with no discharge planning currently in place or being discussed. AIP is non-ambulatory, uses a wheelchair, is pleasant and, while non-verbal, communicates by writing on a board and pointing at things. The staff at Cooperstown Center provide for all AIP's personal needs.

AIP receives chronic Medicaid coverage, which pays for the cost of his care at Cooperstown Center. AIP's Medicaid application was originally submitted in December 2015 by his wife, who died in January 2019. Sharon Radkte, a Delaware County DSS senior program specialist, has continued to recertify AIP's Medicaid despite lacking some information about life insurance policies owned by Mrs. K.. These policies must be dealt with via a proceeding in Surrogate's Court, which may have been initiated and is, in any event, outside the scope of this proceeding. Ms. Radkte, in her role reviewing and determining Medicaid applications, has discretion to ignore the life insurance policies and continue to recertify AIP's Medicaid case. To date, the case has been re-certified, and AIP's Medicaid coverage has not been interrupted. If it were, he would have the right to challenge the Medicaid coverage denial through a fair hearing.

Based on the facts found as a result of the hearing, the Court makes the following conclusions of law. AIP has not consented to the appointment of a guardian of his person or property, and thus any guardianship appointment may only be based on a finding of AIP's incapacity. MHL §81.02(b).

There has been no showing that AIP's personal needs, such as food, clothing, shelter, health care, or safety, are not being met, and so no guardian of the person will be appointed. Id.

AIP has limitations that render him unable to provide for his property management and financial needs. AIP is unable to provide information about the life insurance policies or deal with the potential impact of those policies on his Medicaid case. AIP owns a house, which is subject to a DSS lien. DSS has continued to recertify his case despite some questions about whether he is over-resourced following the death of his wife in January 2019.

The clear and convincing evidence establishes AIP is unable to provide for his financial needs on his own. However, there has been no showing he is likely to suffer harm due to this inability. MHL §81.02(b). The only property management or financial issues testified to at the hearing pertained to the recertification of AIP's Medicaid case, how it may potentially be impacted by his wife's three life insurance policies, and AIP's home.

The cost of AIP's care at Cooperstown Center is covered by Medicaid, which DSS has recertified twice, even with the open question of Mrs. K.'s life insurance policies. The Court cannot find there is risk of harm to AIP based on a hypothetical circumstance that Ms. Radkte may change her mind in the future and deny AIP's recertification. Even if DSS were to reverse [*5]its determination about Medicaid coverage, AIP would be entitled to a fair hearing on the issue.^[FN1] Whether he would then be at risk of harm by being able to represent himself due to his limitations is a different factual circumstance than the one currently before the Court, based on the evidence in the record.

AIP's home may ultimately need to be sold, though the Petitioner did not strongly advocate for the need to sell the home. Ironically, K. P. and D. P. seem to have taken steps to prepare the home for sale, though neither they nor AIP seem positioned to collect any proceeds from such a sale; DSS, as a lien holder, would receive the proceeds, to the extent of their lien. In any event, there has been no showing that the home must be sold today in order to continue AIP's Medicaid coverage or to meet another of his needs. Ms. Radkte did not testify that AIP's ownership of the house impacts his ongoing Medicaid coverage, perhaps because DSS has a lien on the property that potentially renders it worthless from AIP's perspective.

In conference and in closing, Petitioner alleges that AIP is the victim of financial abuse through uncompensated transfers to his daughter and daughter-in-law. Petitioner argues that these transfers may also disqualify AIP from receiving Medicaid. Evidence establishing uncompensated transfers was not submitted. Again, AIP's Medicaid case remains open.

Absent clear and convincing evidence that AIP is likely to suffer harm due to his limitation of being able to properly address his property management needs, the Court cannot appoint a property guardian. The petition is denied without prejudice, which leaves open the possibility that a change in factual circumstances, supported by a risk of harm to AIP, may at some point warrant the filing of a new application to revisit the issue of a property guardian for AIP, with powers tailored to the issues then established.

The Court also finds that the Power of Attorney executed by AIP on January 8, 2019 is facially invalid and must be revoked. The Power of Attorney was attached as an exhibit to the Petition. Petitioner did not enter the Power of Attorney into evidence, and counsel all chose not to address, attack, or establish the validity of the Power of Attorney. The Court nonetheless has the document before it as part of this case and is aware the document is invalid on its face. See, e.g., Matter of Marriott, 86 AD3d 943, 944-945 (4th Dept 2011), lv denied, Matter of Marriott, 2011 NY LEXIS 3257 (2011).

The Power of Attorney purports to designate K. P. and D. P. as AIP's agents. On page 3 of the Power of Attorney, in the section regarding the authority granted to the agents, an "x" appears next to "(P) EACH of the matters identified by the following letters: A — P." AIP's initials do not appear next to (P). The General Obligations Law and the directions on the Power of Attorney form itself explicitly required AIP to place his initials in designated spaces on the form to indicate his choice with respect to the specific powers granted to his agents. Id. If the designated spaces next to each power are not initialed, no authority is granted. Id.; Matter of Hoerter, 15 Misc 3d 1101(A), 1101A (Sur Ct, Nassau County 2007).

Although an "X" or another such mark may be sufficient where a principal routinely signs his or her name with such a mark, such as where the principal lacks the capacity for a standard signature, AIP purported to sign what appears to be "__________" on the signature line [*6]on page 4. "__________," not _________, is in fact the name acknowledged by the notary on the same page. In addition to rendering the acknowledgment ineffective and the execution invalid, this rebuts any suggestion that he was unable to affix his initials to the form or that it was his practice to execute documents with an "X." General Obligations Law § 5-1501B(1); Marriott, supra at 945.

Based on any and all of these deficiencies, the Court is invalidating the Power of Attorney executed on January 8, 2019, in accordance with the Marriott case, in which the Appellate Division reversed the denial of summary judgment in a estate proceeding concerning the conveyance of the decedent's real property by way of a similarly deficient power of attorney. Marriott, supra at 945. The Appellate Division determined the invalidity of the power of attorney at issue in Marriott without the lower court having heard any testimony about the document at issue. This Court comes to a similar conclusion without the need for any testimony regarding the Power of Attorney executed by AIP on January 8, 2019.

At this point, the Court makes no findings regarding any transfers made by the agents using the Power of Attorney. Such transfers could be the subject of a future proceeding filed in this matter or pursuant to a General Obligations Law proceeding in which the agents are tasked with accounting for the transfers made using the invalid Power of Attorney.

The Court will issue a separate order revoking the Power of Attorney. The file will remain sealed in this matter, though the Order Revoking Power of Attorney will not be part of the sealed file and will be available for sharing as needed.

This Decision constitutes the Order of the Court. In furtherance of this Decision, it is hereby

ORDERED, that the Petition in this matter is dismissed without prejudice; and it is further

ORDERED, that the temporary guardianship authority granted to Sylvia Armanno, Commissioner of the Delaware County DSS, is hereby terminated.