On November 14, 2014, JoAnn Fratarcangelo, Commissioner of the Schuyler County Department of Social Services ("DSS"), filed a petition seeking the appointment of a guardian of the person and property of MB. The Court issued an Order to Show Cause dated November 25, 2014, appointing Mental Hygiene Legal Service (3rd Dept.) as counsel for MB and appointing JoAnn Fratarcangelo as temporary guardian, with certain enumerated powers. The Court convened the matter on December 16, 2014, at which time the parties and counsel agreed to continue the temporary guardianship, and the Court also appointed AIP's mother, Bonnie H., as an additional temporary property guardian of MB, by Order dated December 18, 2014.

Based on MB 's consent, the Court appointed Bonnie H. as property guardian (the Guardian) by Order Appointing Guardian dated January 26, 2015. The Order required the Guardian to establish a custodial account at Chemung Canal Trust Company ("CCTC"); redirect MB's annuity payments to the account; direct payment of $1,500 no more than twice monthly from the account into a separate account, for MB's household needs; and deposit $500 no more than twice monthly into another account for MB's discretionary personal use. The Order also prohibited the Guardian from incurring more than $10,000 in debt in a single transaction or $20,000 in total debt without Court authorization and allowed the Guardian to open a credit card for MB, with a limit of $5,000

On February 15, 2019, Schuyler County Court Examiner, Paul Corradini, Esq., filed a compliance motion alleging the Guardian never filed the initial and annual guardian's reports required by the appointment order, pursuant to Mental Hygiene Law §§81.30 and 81.31. The matter was returnable on April 10, 2019, at which time the Guardian and Mr. Corradini appeared. The Guardian expressed that MB no longer needed a guardian, and the Court, on its own initiative, converted the compliance motion into a motion for the Guardian's discharge and/or for modification of the Guardianship, pursuant to Mental Hygiene Law §81.36.

By Order dated April 15, 2019, the Court re-appointed counsel for MB, but MB privately retained John Stevens, Esq. as her counsel. John Stevens filed a Notice of Appearance on June 17, 2019 and has appeared on her behalf to-date.

On May 6, 2019, Schuyler County DSS filed a cross-motion to Mr. Corradini's compliance motion, with a supporting affidavit alleging mismanagement of MB 's funds since the inception of the Guardianship. The cross-motion requested, among other things, appointment of a temporary property guardian for MB and a forensic audit. By Order dated July 1, 2019, the Court directed Karen Webber of Webber CPA to complete a forensic audit and ordered the Guardian and MB's family members to disclose information and provide documentation as requested by Ms. Webber.

Vinton Stevens, Esq., assistant county attorney, as counsel for DSS, submitted a letter dated September 10, 2019, indicating the Guardian failed to provide requested documentation necessary to complete the forensic audit. Based on the Guardian's failure to prepare and file the delinquent annual reports and her inability or unwillingness to provide the requested documentation, the Court relieved the Guardian as property guardian by Order dated September 18, 2019, while still directing that the Guardian was under an ongoing obligation to file the delinquent annual reports. The same Order appointed DSS Commissioner as temporary property guardian, with certain powers enumerated therein.

On November 6, 2019, the temporary property guardian filed an affidavit alleging MB had coordinated the sale of her real property located on Hemlock Road in Dundee, New York, with the closing scheduled for November 8, 2019. The Court ultimately allowed the sale of the subject property and directed the sale's net proceeds be retained in the Guardianship account established by the temporary guardian on behalf of MB, by Order dated December 20, 2019.

On May 29, 2020, DSS filed an affidavit of Rebecca Weichenthal, Adult Protective Services ("APS") supervisor for Schuyler County DSS, with a proposed Order to Show Cause, [*2]seeking the appointment of a temporary person guardian for MB.^[FN1] At that point, the hearing on Petitioner's cross-motion was scheduled to commence on June 4, 2020, and the Court declined to sign the proposed Order to Show Cause, treating the application as notice that DSS would also be asking the Court to appoint a person guardian following the hearing.

The hearing was held via Skype for Business on June 4, 2020, June 5, 2020, and June 11, 2020. At the end of the hearing, the Court reserved its decision. On June 23, 2020, counsel for the parties submitted summations on their respective positions. The Court now renders this Decision, finding that MB is incapacitated but implementing an alternative disposition in lieu of the appointment of a guardian.

Rebecca Weichenthal, long-time caseworker in and supervisor for six years of the Schuyler County DSS APS unit, testified in support of DSS's petition. According to Ms. Weichenthal, her personal involvement with MB's case started in 2019, after the Court and DSS became aware that the Guardian had not filed any annual reports.

Ms. Weichenthal explained MB was a postal delivery worker when she was hit by a tractor trailer in 2004, resulting her becoming a paraplegic, requiring the use of a wheelchair. Following the accident, MB received a settlement, which is currently paid to her in monthly installments of more than $30,000. Ms. Weichenthal expressed concerns about MB's management of her monthly income, as reflected by her considerable debt, the amount of credit cards opened in her name, the number of vehicles registered in her name, and the monthly amounts she spends on car insurance.

Ms. Weichenthal's investigation included contacting banks, conducting a home visit with MB and the Guardian, and reviewing previous APS case notes. Ms. Weichenthal found MB's home sparsely furnished. She noted that while bank statements showed purchases for collectables, she observed none during the home visit. They discussed finances, the collectables, the appliances that were not working, and the fact that MB was sleeping on a board with cushioning on it rather than on a proper bed. According to Ms. Weichenthal, MB directed many derogatory comments toward her during the visit, including telling her to "stay out of my fucking business." Ms. Weichenthal observed a broken couch, bed springs broken in a pull-out couch, dirty dishes throughout the kitchen, garbage around the house, and various items all over the floor. Ms. Weichenthal has made a few home visits since the initial visit and observed similar conditions in the home on all her visits. Ms. Weichenthal discussed her concerns with Commissioner Fratarcangelo, prompting DSS to file its cross-motion in May 2019.

Ms. Weichenthal's ongoing investigation revealed bounced checks; four mortgages in MB's name, with two in delinquent status and interest-only payments on all four; NYSEG late payment notices on four properties in MB's name; delinquent taxes on the properties totaling more than $25,000; and MB lacking health insurance and appropriate physical or occupational therapy.

Ms. Weichenthal spoke to MB several times about necessary repairs and new appliances for MB's home. Ms. Weichenthal explained to MB that she should choose appliances and the [*3]temporary guardian would facilitate the purchases on MB's behalf. No appliances have been purchased to-date, and DSS has not received any invoice or request for funds.

Since the temporary guardianship appointment, Ms. Weichenthal contacted MB's creditors to direct her bills to DSS. MB consistently contacts the creditors to redirect delivery of the bills back to her home. DSS has expended a substantial amount of time and resources redirecting bills back to DSS after MB contacts the creditors. When MB gets the bills herself, she only sends DSS the stub at the bottom of the bill without sending the actual bill. She also crosses out the amount due and total balance and writes in the number she wants DSS to pay. Because DSS does not have the full bill, they cannot confirm if the appropriate amount was paid. This back-and-forth has resulted in DSS occasionally making late payments.

MB has multiple open credit card accounts, in contravention of the Court's original appointment order. Ms. Weichenthal took steps to have additional cards paid off and cancelled, but MB reopened some of the cards.

As temporary guardian, DSS opened and maintained a Sam's Club credit card for MB's monthly grocery shopping. The card has a $500 limit. Ms. Weichenthal testified that DSS recently received a Sam's Club bill stub from MB, showing a $51 credit balance. When MB sent the stub, she had filled in "$5,000" on the payment line, wanting DSS to add $5,000 to the existing credit balance.

Ms. Weichenthal expressed concern about MB's possible financial exploitation by her family members. DSS was contacted by the realtor of the Hemlock Road property close to the scheduled closing, prompting DSS to file its motion to enjoin the property's sale in November 2019. Ms. Weichenthal indicated MB's stated intention was to give the sale proceeds to Jasmin B. to purchase property in Tennessee. MB also purchased a Ford Mustang for Jasmin, which was shortly thereafter reported stolen and impounded in Yates County. The vehicle was repossessed and went to auction, with MB liable for a deficiency.

The Mustang is one of ten vehicles registered in MB's name. A Chevy Express van is adapted for her use with hand controls and a lift; MB recently purchased a Dodge Caravan to have adapted to her needs. The detailed invoice for the modifications was $60,000, which DSS paid from the Hemlock Road sale net proceeds. Ms. Weichenthal was unaware whether MB was even able to be driven in any of the other vehicles. MB purchased a 2017 Jeep Wrangler for Jasmin B., after the Mustang was repossessed and sold. The Jeep was damaged in Tennessee. DSS was asked to pay a $3,000 bill to fix that vehicle but declined to do so. A Dodge Ram in MB's name was also repossessed but not yet auctioned and carries a monthly payment of $1,000.

Ms. Weichenthal also expressed concern about MB's personal care. MB attends to her own personal hygiene yet had a sore that resulted in her hospitalization at Strong Memorial Hospital in November 2019. MB was discharged from Strong Memorial Hospital in late December 2019 to Steuben Center for Rehabilitation and Nursing and then discharged home in March 2019. DSS tried to communicate with both facilities to coordinate the purchase of equipment MB would need upon her return home. Since her hospitalization, MB has worn a colostomy bag, which she changes herself.

Joseph B. provided aide services to MB after her discharge to home from Steuben Center. Joseph told DSS that MB ran out of colostomy bags at one point and had issues getting the adhesive to stick to her skin. Ms. Weichenthal was concerned that MB, to her knowledge, did not have professional medical staff acting as her aides, which might cost $30-40 per hour in MB's area, resulting in a potential need of $5,000 to $7,000 per week to pay for such staff.

In his capacity as a care provider, Joseph is paid $15 per hour. MB's daughter, Jasmin B., and other individuals have also acted as personal aides. Ms. Weichenthal attempted to ask MB to confirm the aide work, but MB told her it was not her business. DSS subsequently required Jasmin, Joseph, and other aides to complete time sheets with explanations of work performed before DSS pays the aides from MB's funds.

For Ms. Weichenthal, MB's hospitalization highlighted the issue of MB's long-term care needs and the possibility that MB might not have enough money set aside to provide for those increased needs. After the payment of bills and necessary costs of living, MB has approximately $9,000 left for monthly discretionary spending. Ms. Weichenthal recommended that these excess resources be accumulated to provide for MB's future medical expenses and needs. The budget DSS uses to track and pay MB's expenses was entered into evidence as Petitioner's Exhibit 5 and includes information about regular monthly expenses as well as anticipated expenses for the needed household appliances, furniture, animal care and housing, and home and furniture modifications to suit MB's needs.

On cross-examination, Ms. Weichenthal described MB as stubborn and often complaining about DSS's role as temporary guardian. MB has repeatedly told Ms. Weichenthal her finances are not her business, and DSS has no right to control what she does with her money. Ms. Weichenthal's main concern is MB's lack of sound judgment and ability to think and understand concepts needed to appropriately manage her finances.

Ms. Weichenthal confirmed that while acting as guardian, the Guardian was a conduit for the monthly income to pass directly to MB. On cross-examination Ms. Weichental acknowledged that when DSS took over as temporary property guardian in September 2019 there were no outstanding utility bills or homeowners or car insurance payments for MB's properties or vehicles, though there were delinquent charge accounts. APS also did not have any financial concerns about MB from 2004, when she was injured in the accident, through their first referral in 2014.

Michael Hart is a wealth management group trust officer for CCTC, providing wealth accumulation and financial planning services. MB's guardianship and related accounts are held at CCTC. Mr. Hart has known MB since he assumed management of the account in 2017. The original intent for the account was to accept MB's monthly annuity payments, pay her bills, and invest the remaining funds.

The annuity payments flow monthly to MB for her lifetime, with an annual increase in the amount. MB receives two annuities, from MetLife and Allstate, that currently total about $35,000 per month. CCTC receives the annuity payments in a guardianship checking account and transfers the funds into the wealth management account. Prior to DSS's appointment as temporary property guardian, the account reports would be provided to the Guardian. CCTC also maintained a personal checking account for MB, which received the twice monthly $1,500 payments for MB's personal use, as directed in the Court's original appointment order.

During the Guardian's time as guardian, CCTC paid regular bills and received additional requests for payment on bills from the Guardian and MB. CCTC would pay bills from the checking account if there was money in the account at the time the request was presented.

Mr. Hart was frustrated with the handling of the Guardianship account, leading him to reach out to MB's court-appointed attorney at the time, from Mental Hygiene Legal Services (3rd Dept.). Mr. Hart described dealing with poor treatment from MB and her family almost daily and indicated the Guardian was not administering the account as ordered by the Court. Mr. Hart [*4]described MB as actually directing payments from the account, with the Guardian's acquiescence.

The CCTC business records of MB's account were entered into evidence as Petitioner's Exhibit 15. The records contain what Mr. Hart described as a representative sample of monthly mailings from MB, which included invoice stubs detached from the rest of the bill, as well as confusing notations on the stubs. Petitioner's Exhibit 15 also contains end-of-month market values for the account, starting in June 2015 and ending when the account was closed in September 2017. The average monthly balance for the account was $15,017.44, with five instances of negative balances at the end of the month. Some payments automatically recurred, and others were based on requests made by the Guardian or MB mailing the bill stub.

Recurring overdrafts, negative balances in the account, and large, abnormal expenditures caused concern for Mr. Hart, again leading him to call MB's then-counsel. Mr. Hart also spoke with MB about the state of the account, and she only expressed concern that bills were not being paid on time. According to Mr. Hart, if a bill was not paid on time, it was because CCTC did not receive the bill from MB in a timely manner. He also said that sometimes requests were made for payment or a bill was due and there was not enough money in the checking account. In those instances, CCTC would prioritize payments based on MB's immediate needs, knowing the next monthly annuity payments would cover other payments due.

According to Mr. Hart, the administration of MB's account has been more streamlined since DSS took over as temporary property guardian, and the original plan for the account may now be implemented. Mr. Hart confirmed that CCTC would prefer not to continue its relationship with MB, due to the history of this relationship.

Karen Webber is employed at Webber CPA, PLLC, a firm she started in 2015 which performs forensic accounting services, with a concentration on cases involving the possible financial exploitation of older adults. The company regularly works with APS departments, law enforcement, and attorneys. Prior to 2015, Ms. Webber worked for five years in the litigation group of a public accounting firm.

The Court directed Webber CPA to perform a forensic audit of MB's finances in its July 1, 2019 Order. The final report was entered into evidence as Petitioner's Exhibit 17. Ms. Webber testified that she used the Court's original guardianship Order as the baseline for determining how MB's income was intended to be spent during the Guardianship. Upon receipt of the forensic audit Order, Ms. Webber obtained bank statements with supporting documentation and related financial records. In August 2019, Ms. Webber contacted the Guardian and Jasmin B. to follow up on certain missing items, such as detailed information about the dates of checks, the identity of check recipients, and signature details. She explained that additional detailed information is necessary during an audit so that she can more precisely determine the nature of transactions.

Ms. Webber determined that almost $1.9 million was paid from the annuities into the CCTC custodial account over the 4.5-year period of the Guardianship, and virtually the same amount was spent. As detailed on page 2 of the report, $177,000 was spent in ways directly attributable to MB; $358,000 was spent on MB's family members; and $1.3 million was designated as "unaccounted for." Ms. Webber described MB's finances as complex, with MB owning multiple vehicles and multiple homes that various family members lived in at different points. The unaccounted for $1.3 million reflected Ms. Webber's inability to figure out from the information provided whether spending benefitted MB or her family members. The [*5]unaccounted-for funds include transfers to unknown accounts, including payments made by MB on personal loans of the Guardian. Ms. Webber indicated that MB only had $8,000 in cash as of September 2019, so the express goal of preserving some income for her future needs was not achieved. During the Guardian's time as guardian, $12,283.27 in fees were charged to MB's accounts for overdrafts, insufficient funds fees, and returned item charges.

Ms. Webber described financial exploitation as the use of an adult's funds by another individual, and she indicated that the state of the financial records made it difficult for her to determine if MB's money was spent on MB's needs or those of her family members. Ms. Webber was unable to conduct interviews with MB, Jasmin B., or Joseph B. due to the limited retainer for the audit. Webber CPA staff requested the Guardian produce documentation on MB's credit card accounts, copies of cancelled checks, or copies of bank withdrawal slips but were not able to make follow-up requests due to cost limitations.

Dr. Norman Lesswing, Ph.D. is a consulting clinical and forensic psychologist who operates a full-time private practice in Syracuse, New York. He received his Ph.D. in 1977 and has since practiced regularly. Dr. Lesswing was retained by MB to conduct a forensic psychological evaluation. MB was evaluated by Dr. Lesswing at her home for two and a half hours on September 27, 2019; he issued a report dated November 3, 2019, which was accepted into evidence as Respondent's Exhibit A.

During Dr. Lesswing's interview with MB, they discussed the guardianship, her control of her funds, her thoughts and preferences, her history, her current life activities, and what she wants regarding obtaining control of her money. Dr. Lesswing also interviewed the Guardian and Jasmin B. over the phone. Dr. Lesswing did not review or ask for a copy of the original guardianship order, and he was not sure whether he would find that relevant to his overall assessment. He also testified MB did not explain the original guardianship was entered upon her consent. On re-direct, he clarified that when MB consented to the Guardianship in 2015, she was in distress in her life.

Dr. Lesswing performed the Montreal Cognitive Assessment, a common screening modality used to assess the subject's basic cognitive abilities regarding orientation, ability to pay attention, memory, language function, and organizational and spatial skills. MB scored a 23 out of 30 on the test's scale, which was suggestive of "some mild degree of compromise to her cognitive capabilities." In his report, Dr. Lesswing described the score as reflecting areas of concern, "including her ability to perform mental calculations . . . and with areas of her executive abilities, involving planning and organizing skills." The report indicated she "performed in an intact fashion on measures of verbal fluency, attention, immediate recall, and short-term memory."

Dr. Lesswing opined that it is possible that MB has the capacity to manage her own finances, based on her self-reported history of managing the family's finances from 2004 through 2014 without any significant issues. MB appreciates the consequences of failing to pay her bills when due.

To Dr. Lesswing, MB has likely always been an "independent, outspoken person" and, after suffering her traumatic brain injury in 2004, may have become more rigid and pronounced in her reactions and attitudes, with less self-control over how she expresses herself, a common result of such an injury. She tends to minimize or deny problem areas in her functioning. MB will not cooperate with any guardian and the continued appointment of a guardian would cause [*6]her further stress.

In his report, Dr. Lesswing recommended allowing MB a one-year trial period to manage her money independently, with her family helping her receive "necessary assistance to manage her affairs." He also recommended a professional audit at the end of such a trial period to evaluate the adequacy and appropriateness of MB controlling her own finances and suggested that "consideration be given to holding back a portion of her proceeds from the accident settlement as a reserve for her potential need for residential care services in the future."

On cross-examination, Dr. Lesswing was made aware that the Guardian was appointed to assist MB with her finances, and that the arrangement was not carried out as ordered by the Court. Dr. Lesswing was unable to say whether MB would now be more amenable to receiving help with her finances from her family. He conceded that it would be concerning for him if MB failed to pay her bills in a timely manner. When asked whether, at the end of his proposed trial period, MB should be permitted to continue controlling her own finances if more than a million dollars had been unaccounted for, Dr. Lesswing claimed it was beyond his expertise to provide such an opinion, indicating that such determination is to be "left to the financial professionals."

In his report, Dr. Lesswing also indicated the following:

MB is in clear and immediate need of obtaining in-home nursing care, assessment of her need for durable home equipment, and evaluation and recommendations regarding her nutritional status and hygiene. It is also apparent that she requires substantial repair, or replacement, of her van. These issues appear to be critical and need to be addressed as soon as possible. In particular, the report by Jasmine [sic] regarding her mother's bedsore raises concern about her potential to develop serious infection.

Dr. Lesswing addressed these concerns with MB, who responded she could handle these issues on her own. Dr. Lesswing described MB as evasive in acknowledging problems in the areas that are beyond her control.

In his report, Dr. Lesswing described MB's need for professional in-home nursing care as "urgent". He was concerned about the blueish appearance of MB's legs and a malodorous sore during their interview on September 27, 2019. He was further alarmed by the fact that Jasmin B., during their phone conversation on November 7, 2019, told Dr. Lesswing that the sore was still present and odiferous. He told Jasmin to get MB medical attention immediately and was unsure why MB had not been taken for appropriate medical care prior to his intervention. He felt professionally obligated to communicate to MB's family and attorney his concern about the lack of appropriate care for her worsening sore. For Dr. Lesswing, MB's health issues and potential inability to recognize the impact of those issues constitute a safety issue for MB.

MB testified on her own behalf. She lives in Dundee, New York, in the home she had built around 2006. She was rendered paraplegic when she was struck by a motor vehicle while on the job in October 2004. MB managed her family's finances and took care of her own physical needs between 2004 and 2015. During that time, her three children lived at home, and she was married to her husband. MB explained her personality changed around 2014, when her husband left her. They had an "ugly" divorce, and she describes herself as "going on strike," refusing to pay bills. She also had family members who died during that same time period, impacting her mental state and ability to care for herself properly.

MB described essentially managing her own finances since the Guardian's appointment as MB's property guardian in 2015. The Guardian would receive MB's money from CCTC and [*7]give it all to MB. The bank would pay her bills twice per month. MB kept receipts for her purchases in boxes in her basement.

MB does not understand the importance of math, though she double- and triple-checks her math when she pays bills and does her own accounting. She uses a check register to keep a balanced checking account, though she does not currently have a checkbook or use a register.

On cross-examination, MB was presented with the CCTC statement records (Petitioner's Exhibit 15). When asked about the overdrafts in her personal checking account, over which she had sole control, she acknowledged it was possible she lost track and overdrew the account, but argued, "I pick myself back up and go." MB could not explain charges made in Florida and South Carolina on the same day in April 2016, when she was on vacation in Florida with Jasmin. MB expressed she will ensure she does not overdraft her account and "prove it" to the Court. She would keep track of outstanding checks and the account balance by checking it off a list every time a check clears.

According to MB, she was not allowed to talk to a representative from CCTC since they have handled her finances. She also never felt the need to talk to the bank about coverage of any particular charge because she knew there always would be sufficient funds to cover any expense.

MB stated she would struggle to accept help from any guardian and insists she can manage her own finances. MB acknowledged the missing $1.3 million detailed in the forensic audit report, but she said that no one forced her to spend the money. MB bought three vehicles and the home on Hemlock Road for Jasmin. MB made all the car payments, but said Jasmin had to "do her part." MB described Justin as her "spoiled child," and that she bought him vehicles because he is always working. She acknowledged each of the cars she purchased for herself and her children. She said her children do not usually pressure her to buy things for them. If one of her children needs money or something purchased, MB will have them complete work in return. Joseph has mowed the lawn or cleaned up and fixed a water leak in her home's basement. Jasmin has received money to run MB's errands, pick up her medicine, and help MB use her computer. MB acknowledged she spends more money on her children than most parents, explaining that she always went without things, and she wants her children to have more and better than she had.

MB built a home for the Guardian, located on MB's property. MB owns four houses, all built between 2004 and 2015. A housekeeper cleans MB's home on weekdays.

MB expressed frustration with the guardianship process and repeatedly complained that DSS had been involved in her guardianship and interfered with her finances since the Guardian was appointed guardian in 2015. She only agreed to the Guardian acting as her guardian because she believed she did not have a choice. MB never asked the Court to discharge the Guardian as guardian because she "had other things to worry about other than myself." MB stated she would not be able to cooperate with any guardian because she feels she cannot rely on anyone but herself.

MB acknowledged letting her bedsores get bad enough that she ended up in the hospital in November 2019. She said sores typically recur with her confinement to a wheelchair, and she first noticed the sore on her bottom six months prior. MB saw her physician during that period, and tried to follow the doctor's recommendations, but did not have the assistance of in-home aides.

MB needs a Hoyer Lift to get in and out of her bed but has not purchased one to date. MB has needed this equipment since 2004 and has been "looking for one" for the last 16 years. She also testified to needing a hospital-style bed to raise and lower herself since at least 2014. [*8]She acknowledges that all the appliances in her home need replacement, including the washer and dryer, dishwasher, stove, and hot water heater. When asked why she has not already purchased these items, MB stated, "Why should I ask permission for what I want when I can go to the store myself?"

MB was unable to articulate why she was not able to accomplish many things for her own benefit since 2015, during a period in which she effectively managed her own finances. She was also unable to explain whether she understood why someone might be concerned that she has a substantial monthly income, but her house lacks many appliances and necessary finishes. She also could not respond to the concern about her lack of attention to her personal health resulting in an infection and her hospitalization. MB ultimately stated that she blames herself for her "financial mess" and that she is responsible for cleaning up that mess.

The Guardian testified that when she took on the responsibility of acting as her daughter's guardian, she was tasked with providing MB with $1,500 twice per month. Her understanding was that the bank was managing the rest of MB's money, and MB would just send bills to the bank for them to be paid. To this extent, the Guardian indicated an awareness of the authority she had agreed to undertake as property guardian.

The Guardian acknowledged not filing any reports when she was guardian, indicating she was unable to complete them because she was never really in control of how MB's money was being spent. The Guardian's husband was seriously ill at the time of her appointment as MB's guardian; he ultimately died. It is now evident that the Guardian did not fully appreciate the full extent of her responsibilities as guardian, because of the stresses in both her own life and MB's at the time of the original guardianship proceeding.

While acting as guardian, the Guardian sometimes expressed concern to MB about unnecessary spending. This caused tension between them and is one of the reasons the Guardian didn't assert her authority as property guardian and ultimately sought discharge. MB directed all payments from her accounts, including those made on her children's vehicles.

The Guardian believes MB should have full formal control over her own money, and the property guardianship should be terminated. The Guardian's perspective is that MB tracks the bills she sends to DSS during the current temporary property guardianship, sending the stub and keeping the rest of the bill in her office, continuing the use of her system of organization.

The Guardian testified that she believes MB's real property and vehicles were not her business or responsibility. MB managed her own finances from 2004 through 2014 and did not discuss her finances with the Guardian during that period. Around 2015, when MB's husband left her, and the Guardian's husband, MB's stepfather, also became ill, The Guardian observed MB fall apart. More recently, she has observed MB acting "more like herself," though MB is angry because she does not like people in her business.

When asked whether MB's children take advantage of her financially, the Guardian stated that the children do not take any more advantage than any other children, except the "dollar amount is different because MB's money is different." She described MB as being susceptible to her children's wishes even before her accident and as always putting herself and her own needs last.

Three long-term friends of MB and all testified that while MB lost her way when her husband left in 2014, she is now back to her old self and wants to reclaim control over her life.

Joseph B. is MB 's 28-year-old son. He lives in Mansfield, Pennsylvania, works in construction, and visits MB four or five times per week. Joseph testified that since April 2018 he [*9]has performed ongoing construction work on MB's house. MB inspects Joseph's work and tells him whether the work is acceptable or needs to be redone. MB authorizes Joseph's timesheet for submission to DSS. He was not sure how much he has billed MB to date.

A substantial amount of work still needs to be done on the house, including re-sanding the hardwood floors, staining the exterior, siding, and deck, refinishing the basement floor, building a storage room in the basement, and finishing the lower floor bathroom. Joseph confirmed the appliances in the house need to be replaced.

Joseph stated MB gave him a Ford Focus and has gifted vehicles to Justin and Jasmin as well. He did not know the monthly payment amount for his vehicle. He denied any other gift of substantial size from MB.

MB takes care of her own daily physical needs, including showering three or four times per week and changing her own colostomy bag. MB is a good cook who can prepare food for herself. Joseph described the house as not containing much furniture.

In November 2019, Joseph noticed MB was sleeping a lot and did not want to get out of bed. He recommended MB have a doctor look at the sore, but she did not act on his suggestion. He described MB ending up in the hospital as the result of MB "not being able to go out and get help without people being in her business." MB has a problem getting the help she needs because of her personality. While MB stubbornly resists help, she can handle her own medical needs.

Jasmin B. is MB 's 21-year-old daughter who lives in Sparta, Tennessee, where she moved at the end of April 2020. For the four months prior to that, she lived with MB in her home. She also lived with MB from 2004 to 2014 and during that period observed MB handling the family's finances.

Jasmin testified that when was most recently living with MB, MB took care of groceries and cooking, making meals three or four times per week. MB took care of her personal hygiene, transferring herself into the shower and dressing her wounds. MB reviewed her bills and sent them out for payment to the bank. Sometimes bills did not get paid, resulting in electricity and cable being shut off or propane running out.

In September 2019, Jasmin noticed MB's bed sore was odiferous, and she acknowledged Dr. Lesswing telling her about the odor of the sore. MB did not seek medical attention before Dr. Lesswing spoke to Jasmin about his observation. Ultimately Jasmin took MB to the hospital.

Jasmin reported MB's purchase of a 2017 Jeep Wrangler and a 2016 Ford Mustang for her. The Mustang was repossessed when the payments stopped being made; Jasmin still has the Jeep.

Justin B. is MB 's 24-year-old son. He lives in MB's house in Dundee and works for a natural gas pipeline company. MB cooks almost every night when he is home. MB bought Justin a vehicle that was repossessed in 2018 after payments stopped, and he subsequently purchased his own vehicle. He supports himself, other than housing.

Pursuant to Mental Hygiene Law §81.36(a), the Court shall discharge a guardian if it appears to the satisfaction of the Court that "the incapacitated person has become able to exercise some or all of the powers necessary to provide for personal needs or property management which the Guardian is authorized to exercise" or if "the appointment of the Guardian is no longer necessary for the incapacitated person, or the powers of the Guardian should be modified based upon changes in the circumstances of the incapacitated person." When a party seeks to terminate a guardianship, the burden of proof shall be on the person objecting to [*10]such relief to establish by clear and convincing evidence that the Guardianship should not be terminated. MHL §81.36(d); see, e.g., Matter of Banks (Richard A.), 64 Misc 3d 191, 193-194 (Sup Ct, New York County 2019.

MB originally consented to the appointment of the Guardian as her property guardian in 2015. The Guardian asked for her discharge as property guardian, and MB no longer consents to the Guardianship. DSS has petitioned the Court for the continued appointment of a guardian of both property and person. To continue and expand the Guardianship without MB's consent, the Court must determine she is incapacitated within the meaning of the statute. Id. at 197; MHL § 81.02(a)(2).

Court appointment of a guardian based on the AIP's incapacity must be based on clear and convincing evidence and requires a two-part finding. The court must find the AIP is likely to suffer harm because she is unable to provide for her personal needs and/or property management, and that the AIP does not "adequately understand and appreciate the nature and consequences of such inability." MHL § 81.02(b). In reaching its determination, 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; her understanding and appreciation of the nature and consequences of any inability to manage these activities; her 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 her ability to manage them. MHL §§ 81.02(c); 81.03(h); see, e.g., Matter of Maher, 207 AD2d 133 (2d Dept 1994). The court must also assess, in pertinent part, "the extent of the demands placed on the person . . . by the nature and extent of that person's property and financial affairs;" any mental disability and the prognosis of the disability; "any medications with which the person is being treated and their effect on the person's behavior, cognition and judgment;" and "other relevant facts and circumstances." MHL §§ 81.02 (c)(4); (d).

Article 81 mandates that the Court must consider MB's personal wishes, preferences and desires, allowing her to make the decisions affecting his life, to the extent she is able. MHL § 81.01; Matter of Jillian B, (Benny D.), 68 Misc 3d 1219(A) (Sup Ct, Chemung County 2020); In re Matter of Cheryl B.K., 45 Misc. 1227 (A) (Sup Ct, Broome County 2012). The Court must be careful not to unduly substitute its judgment, or that of others, for MB's judgment. Id.; Matter of Williams, 194 Misc 2d, 793 (Sup Ct, Suffolk County 2003). Article 81 cases are replete with references to respecting the AIP's wishes to the extent possible. Jillian B, supra; Williams, supra; Cheryl B.K., supra; In re Pfluger, 181 Misc 2d, 294 (Sur Ct, New York County 1999). The court should "approve any acts as long as it falls within the range of reasonable actions for a given situation." Pfluger, supra, at 299. Whether to appoint a guardian is a matter of discretion requiring the court to determine if the AIP actually needs one. Matter of Daniel TT, 39 AD3d 94 (3rd Dept. 2007).

If the AIP is found to be incapacitated and the court determines that the appointment of a guardian is necessary, the order of the court shall be designed to accomplish the least restrictive form of intervention by appointing a guardian with powers limited to those which the court has found necessary to assist the incapacitated person in providing for personal needs and/or property management.MHL § 81.16(c).

Article 81 provides the Court with certain dispositional alternatives between full dismissal of the petition and a plenary guardianship appointment. Upon a finding of incapacity, [*11]the court can authorize a single transaction or protective arrangement to "achieve any security, service, or care arrangement meeting the foreseeable needs of the incapacitated person;" authorize the creation of a contract, trust, or other transaction relating to the incapacitated person's property and financial affairs if the court determines the transaction is necessary as a means of providing for the incapacitated person's personal needs or property management. MHL § 81.16(b). The court can appoint a special guardian to assist in the accomplishment of any protective arrangement, with authority conferred by the order of appointment. Id.

Based on the clear and convincing evidence produced at the hearing, the Court makes the following findings of fact regarding MB's personal care needs. MB is generally capable of taking care of her daily personal needs like bathing, cooking, dressing, getting out of bed, using the bathroom, and even changing her own colostomy bag. MB enlists the help of family members and friends to help accomplish daily errands, like grocery shopping and picking up medication.

Nonetheless, several witnesses, including MB herself, testified regarding her infected sore, which resulted in her emergency hospitalization in November 2019. The infection was serious enough that MB required a month of treatment at the hospital and then more than three months at a rehabilitation center before discharge to her home in March 2020. It is extremely concerning that MB's health and safety were put at serious risk of harm due to the lack of proper medical attention for infection from the sore, which MB admitted began sometime around June 2019. It appears that several of MB's family members were aware of this sore, yet effective response was long delayed. MB tried to follow the doctor's recommendations, but she could not do so independently. The lack of in-home medical professionals contributed to MB not receiving proper ongoing care and treatment for the infected sore.

MB's then-lack of a properly retrofitted vehicle to transport her played a part in the delay. MB was unable to address this serious personal need through her own actions, and the family caretakers who made first-hand observations about MB's condition were not able to effectively get MB treatment in a timely manner.

The Court finds the testimony and report of Dr. Lesswing very convincing in terms of MB's inability to properly attend to her personal needs. In his report and testimony, Dr. Lesswing confirmed MB's need for in-home nursing care, durable in-home equipment, and an evaluation regarding her nutritional status and hygiene. He classified these as needs as "urgent," and the Court agrees with this designation of MB's personal needs that are not currently being met, placing her at risk of harm.

The Court also finds clear and convincing evidence regarding MB's property management needs. MB had indirect control over her finances throughout the period of the original guardianship yet was unable to save any of her substantial funds to ensure her future, long-term needs will be met. MB has also been unable to coordinate the purchase of many essential items for her care and her home, despite her indirect control over her finances and/or through the coordination of CCTC or DSS.

Regarding MB's inability to effectively manage her substantial income, Ms. Weichenthal credibly testified that DSS's investigation after its appointment as temporary guardian revealed MB had bounced checks; was paying four mortgages with two being in delinquent status and interest-only payments made on some or all; NYSEG delinquent notices on four properties in MB's name; delinquent taxes on the properties in the amount of $25,000 to $30,000; and MB lacking health insurance or physical or occupational therapy. These are serious property [*12]management issues that demonstrate MB is at risk of harm regarding managing her property.

The forensic audit report completed by Karen Webber supports this finding. Ms. Webber investigated the 4.5-year period of the Guardianship. The testimony of the Guardian, Mr. Hart of CCTC and of MB herself all support the finding that MB was controlling her finances during this period, despite the consensual guardianship Order. Ms. Weichenthal and Mr. Hart both testified that MB's has consistently frustrated the effective, timely payment of her bills by her rerouting the bills back to her home and then sending only the stub back to DSS or CCTC, with information crossed out or not included.

In this period, $1.6 million was deposited into the CCTC custodial account, and as of September 2019, MB only had $8,000 in cash. This is a tremendous amount of money to be spent without any savings simultaneously accruing for MB's future needs. The Court notes that during the period when MB was de facto in control of her finances, $12,283.27 in fees were charged to MB's accounts for overdrafts, insufficient funds fees, and returned item charges. This is reflective of MB's mismanagement of her finances.

Dr. Lesswing's professional opinion is that MB has "some mild degree of compromise to her cognitive capabilities" and she has a compromised "ability to perform mental calculations . . . and with areas of her executive abilities, involving planning and organizing skills." These skills directly bear on MB's ability to manage finances, balance a checkbook, and pay bills.

The uncontroverted evidence also establishes MB needs home repairs and appliance replacements and she has not obtained the appropriate medical equipment for her home, for years. MB has more than enough monthly income to provide for these needs, but is unable to coordinate their selection and purchase, despite DSS as temporary guardian encouraging MB and offering to assist.

DSS submitted substantial evidence supportive of a finding that MB has been financially exploited by her children. MB has purchased houses and many vehicles for her children, including replacement vehicles after repossessions and impounding. The forensic audit report establishes that from 2015 through 2019, $1.3 million of MB's money was not effectively accounted for. It is not clear what amounts were spent for MB and what amounts were spent by and for her children. MB insists that she has always given her children everything they want, and that she is able to give more than other parents due to her settlement income. The Guardian echoed this sentiment in her testimony, and it is clear MB is a very generous and caring mother. While it was not conclusively established that MB was financially abused by her children, the Court finds the evidence clearly establishes MB remains vulnerable to financial exploitation.

The Court also finds the clear and convincing evidence produced at trial establishes MB does not adequately understand and appreciate the nature and consequences of her inability to fully and effectively provide for her personal care and property management needs, despite her acknowledged intention and efforts to do so independently. Dr. Lesswing addressed his urgent concerns about MB's safety and personal needs directly to her during a face-to-face conversation, describing her as evasive in acknowledging problems in areas she sees as beyond her control.

This is consistent with the Court's own assessment of MB's presentation during her testimony as unwilling or unable to comprehend questions about her failing to provide for many of her own essential needs throughout the pendency of the Guardianship, while she had de facto control over her finances. When asked why she had not yet purchased the many needed items for herself and her home, MB failed to acknowledge the reality that she was always able to go to the [*13]store and pick out any items she needs, with reimbursement by CCTC, or more recently DSS as temporary guardian. Following MB's testimony, the Court is convinced MB lacks insight into understanding and appreciating the consequences of her inability to properly provide for certain personal care and property management needs.

MB consistently blamed DSS as exerting control and frustrating her objectives throughout the pendency of the Guardianship, even though DSS had no involvement with MB's case between the Guardian's guardianship appointment in September 2015 and DSS's temporary guardianship appointment in September 2019. This shows a basic lack of understanding about the Guardianship process in which she participated and to which she expressed consent.

The amount of time it took MB to seek appropriate medical care for her infected sore in 2019 also supports the finding that she does not understand and appreciate the nature and consequences of her inability to provide for her personal care needs.

Based on the foregoing findings of fact, the Court concludes that MB is likely to suffer harm because she is unable to provide for her personal care and property management needs. MHL § 81.02(b). The Court finds MB is incapacitated within the meaning of Article 81 of the Mental Hygiene Law, and in so finding, the Court has given primary consideration to MB's functional level and limitations; her understanding and appreciation of the nature and consequences of any inability to manage these activities; her 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 her ability to manage them. MHL §§ 81.02(c); 81.03(h). The Court makes this conclusion based on the foregoing findings of fact, including MB's functional level as demonstrated through her own testimony, the testimony of the various witnesses, including family members who have worked with MB, and Dr. Lesswing's testimony and report.

The nature and extent of MB's property and finances, in relation to her ability to manage them, is a factor that is particularly impactful for the Court. MB is the recipient of an extremely large income every month. After fifteen years of controlling the income herself, including five years of de facto control despite the institution of a consensual guardianship, she had less than $10,000 in reserve to fall back on in the event of need or an emergency. On its face, this evinces that MB's finances are of a nature and extent that far exceed what she can capably manage on her own, without any direction or guidance. See, e.g., Matter of Perl v Evans, 77 AD3d 525, 525-26 (1st Dept 2010 ("The testimony established that, while [the AIP] is able to handle her considerable monthly allowance, she is vulnerable to exploitation and is not prepared to manage the entirety of her wealth.").

Having found that MB is in need of assistance with management of both her personal and property needs, the Court must also acknowledge the reality that MB has not shown an ability to work effectively within the property guardianship structure put in place with her consent five years ago. Dr. Lesswing's assessment, the consistent testimony of all witnesses in this proceeding and MB's own testimony all confirm that a typical guardianship has not and may not be effective for MB The Court must try to balance MB's oppositional personality, her legitimate desire for independence and control, and her perhaps too-generous maternal nature, with her currently unaddressed and long-term personal needs, requiring financial resources and management and the need for some savings mechanism.

MB has requested the opportunity to "prove" to the Court that she can effectively manage her needs, on her own and with the assistance of others of her choosing. Dr. Lesswing also [*14]recommends such opportunity be provided, for a one-year trial period. It is difficult for the Court not to reject this approach as having been disproved already by the last five years of the consensual guardianship. In this case, the Court feels the least restrictive alternative standard justifies an attempt at an alternative disposition. In fairness to both the petitioner and MB, the Court will provide a framework by which MB's success can be objectively measured, in furtherance of the ultimate standard of reasonable safety. See, Jilllian B., supra at *8; Cheryl B.K., supra, at *4.

With respect to property management the Court directs the following:

1. It is not disputed that some of MB's substantial income needs to be secured for future needs. The funds accumulated by DSS during its period as temporary guardian will be dedicated to that purpose and placed in a conservatively managed account at a financial institution of MB's choosing. CCTC would be approved for this account but will not be mandated by the Court. Once MB selects the financial institution for this account, she must file an application for the Court to approve the account, and the Court will subsequently issue an order that requires further Court authorization for withdrawals from it.

2. MB's monthly income is currently some $35,000. The sum of $7,000 monthly, about 20% of the current income, will also be redirected to the above account.

3. MB testified she needs bookkeeping assistance, even naming the individual she would want to serve in that role. MB is to engage the services of a bookkeeper of her choosing to assist her with bill paying, budgeting, payroll and cash management on a monthly and ongoing basis. The bookkeeper will need to be able to generate reports of MB's spending, both with respect to bills the bookkeeper pays and those paid by MB directly. In other words, the bookkeeper will have access to all of MB's financial information, to effectively counsel her and report to her and others, as required.

With respect to personal management the Court directs the following:

1. MB will engage the services of an independent care manager to assess her situation and make recommendations with respect to necessary and appropriate services and equipment. The care manager will meet regularly, not less than monthly, with MB to assess and review her care plan.

2. MB will make best efforts, with bookkeeping assistance as required, to implement the care plan developed with the care manager.

3. MB will execute a Health Care Proxy.

4. MB will obtain and maintain adequate health insurance coverage.

The Court will set this matter down for a review in six months. At that time, the Court anticipates seeing that all the above directives have been fulfilled. The Court will also expect to see reports from MB's bookkeeper and care manger regarding her financial and personal status. The Court will view MB's ability to move substantially toward implement of the plan she has requested as a success for her. The Court has no desire to remain any more involved in MB's life than her reasonable safety requires.

In furtherance of this decision it is

ORDERED, that the petition of Schuyler County Department of Social Services is granted, to the extent of the implementation of the plan set forth in this Decision; and it is further

ORDERED, that the Schuyler County Department of Social Services may request legal fees and disbursements to be paid in connection with this matter, based on the submission of an [*15]affidavit for fees and disbursements incurred by counsel for the petitioner; and it is further

ORDERED, that John A. Stevens, Esq. may request legal fees and disbursements to be paid in connection with this matter, based on the submission of an affidavit for fees and disbursements incurred as counsel for MB ; and it is further

ORDERED, that pursuant to Section 81.16(e) of the Mental Hygiene Law a copy of this Decision and Order shall be personally provided and explained to MB in a manner that she can reasonably be expected to understand by her counsel, John A. Stevens, Esq., and it is further

ORDERED, that MB is directed to implement the components of the plan set forth in this Decision within twenty (20) days of the date of this Decision; and it is further

ORDERED, that the Court will issue any additional Orders necessary to implement the plan as may be reasonably requested by the parties; and it is further

ORDERED, that an attorney conference is set for November 13, 2020 at 1:00 pm to discuss the implementation of the plan, to discuss the procedure for discharge of Schuyler DSS as temporary guardian and to set the schedule for the six-month review of this matter.

This Decision constitutes the order of the Court.