A petition pursuant to Mental Hygiene Law Article 81 was filed by CO on November 19, 2018, seeking the appointment of a guardian of the person and property of GP. Following a hearing on March 8, 2019, the Court found that GP is incapacitated within the meaning of Mental Hygiene Law §81.02 and that the appointment of a guardian of the person and property was necessary to provide for GP's needs. The Court appointed Michael F. Getman, Esq. as property guardian and SH, GP's sister, as her person guardian.

On February 3, 2020, Mr. Getman filed a motion to be relieved as guardian of the property, pursuant to Mental Hygiene Law §81.36. On February 18, 2020, SP, one of GP's children, filed a petition seeking the immediate removal of Mr. Getman as property guardian and appointment of SP as interim property guardian. The Court issued an Order to Show Cause dated February 20, 2020, removing Mr. Getman as property guardian and appointing SP as interim [*2]property guardian, with specific powers enumerated therein.^[FN1]

SP's petition essentially requested the Court consider SP's appointment as the permanent property guardian of GP, and the Order to Show Cause accordingly set the petition down for a hearing on the permanent appointment of a property guardian for GP. The Order to Show Cause also reappointed William Thomas, Esq. as counsel to represent GP in this matter. The original hearing date was adjourned due to the Covid-19 pandemic-related court closure and ultimately rescheduled for August 19, 2020.

On August 6, 2020, B. P., another of GP's children, filed an affidavit with 18 exhibits in opposition to the relief requested by SP. On August 11, 2020, GP's daughter EG filed an affidavit and five exhibits in opposition to SP's petition. Both affidavits asked the Court to appoint a successor property guardian from the list of attorneys qualified under Part 36 of the Rules of the Chief Judge, as Mr. Getman was.

The hearing held via Skype for Business on August 19, 2020. Appearing were GP and William Thomas, Esq., her counsel; SP and his counsel, Deborah Wolf Miller, Esq.; SH, the personal guardian; and GP's children EG, CO, and BP. Following the hearing, Ms. Miller, submitted a written summation on behalf of SP with an abbreviated proposed monthly budget for GP.

SP testified that he is employed as a fire lieutenant with the City of Binghamton, and he has trained as a paramedic, worked as a home health aide, and been certified as a nurse's aide. He has no criminal record and a full military security clearance. GP has lived with him since late in 2018. Since his appointment as interim property guardian in February 2020, he has made good progress toward getting GP's finances in order. He paid $41,956.79 in back taxes owed on GP's various properties in Chenango County, which ended the immediate threat of foreclosure. The funds to pay the taxes came from $30,000 turned over to SP from Mr. Getman as well as reimbursements to GP from her health savings account, which SP was able to obtain after Mr. Getman paid GP's health-related expenses from her general funds.

SP had rented out one of GP's Oxford properties by the time of the hearing and described another of her properties as nearly available for rent, once he completes bathroom renovations.^[FN2] That property contains an in-law suite which will be retained for GP's exclusive use when she wishes to visit, a goal she has expressed throughout this proceeding. SP created a stable budget for GP's monthly income and expenses. Petitioner's Exhibit 2, entered in evidence, was a spreadsheet of the interim guardian's accounting. The spreadsheet shows GP's income and expenses paid on a monthly basis.

SP was previously appointed as representative payee by the Veterans Administration, to oversee a veteran's benefit payable to GP. The Veterans Administration reviewed and approved the same budget submitted to the Court by SP, as part of their process to appoint him as her rep [*3]payee.

SP acknowledged GP still owes legal fees in the amount of $25,460 to various attorneys in connection with this matter. In the current budget, he has allotted $300 per month to pay the fees, though he anticipates paying more toward the outstanding legal fees with additional rental income. GP's other major financial obligations include this year's property and school taxes, in the amount of approximately $12,000. SP also testified he intends to charge GP for room and board, clothing, and gasoline, which he has not collected to date.

On cross-examination, CO asked SP about other income sources for GP in addition to the veteran's benefit and the rental income. SP indicated GP also receives a monthly Social Security benefit and $2,500 annually to her health savings account. When asked whether repairs were needed in the rented properties, SP indicated they were in habitable condition to be rented "as-is." GP carries a $300,000 liability insurance policy on the properties. SP also confirmed GP is current on payments owed to her personal companions, which had been an ongoing outstanding expense.

SP's wife testified that CO is the only child of GP who has requested visitation with GP since GP moved to SP's home in late 2018.

Richard Grace, Esq. testified that SP has never been his client, though he previously represented an individual who sold SP real property. Mr. Grace drafted a Power of Attorney from GP to SP in 2018 and indicated that GP alone was his client at that time. GP signed the Power of Attorney under Mr. Grace's supervision.^[FN3] He described her as desiring to grant agent authority to SP and having capacity to signing the document, which did not include a supplemental major gift rider, at the time of its execution.

Testimony was heard from GP's hairdresser at Ms. Judy's Hair Plus in Binghamton. In November 2018, SP brought GP to the salon for a hair appointment, during which people she believed to be SP's siblings entered the salon, yelling and accusing SP of keeping GP at the salon against her will. SP asked his siblings to leave. The hairdresser testified that GP indicated she was not being kept there against her will. The hairdresser described the male sibling who had entered as being the one instigating verbal confrontation. SP did not do anything to escalate the situation and kept walking away. GP wanted to leave but her hairdresser calmed her down.

On cross-examination, CO established she was present during this incident and that she paid for the haircut after the incident ended.

GP's sister and person guardian, testified she is pleased with the progress SP has made since his appointment as interim property guardian, and she supports his request for appointment as permanent property guardian. When GP initially moved into SP's house, SP was a "little difficult," but person guardian cautioned him to let go of the past and work cooperatively for GP's benefit, which she perceives SP has been able to do. According to the person guardian, the historic tensions within the family have settled down significantly.

CO asked the person guardian why SP prevented CO from taking GP to lunch by herself in October 2019. The person guardian indicated SP was concerned CO would take GP and not return her to SP's home, but the person guardian also indicated that she believes SP has become more amenable to GP going on visits alone. The person guardian also indicated she saw no [*4]reason why CO would not be able to see and speak with GP alone during a Skype session.

BP testified in opposition to the relief requested by SP. BP expressly stated that he would honor GP's express choice of nominated guardian unless that person is "unfit," which he conceded is a subjective determination. BP and SP clearly have long-term animosity, but BP conceded SP "will be fine" regarding management of their mother's property.

The Court may appoint any individual over eighteen years of age found to be suitable to exercise the powers necessary to assist the incapacitated person, including but not limited to a spouse, adult child, parent, or sibling. HL §81.19(a). The Court must appoint an individual nominated by the alleged incapacitated person to act as guardian unless the Court "determines the nominee is unfit" or the alleged incapacitated person no longer wishes the nominee to be appointed. MHL §81.19(b). In the absence of a formal nomination in writing, the Court "shall appoint a person nominated by the person alleged to be incapacitated orally or by conduct during the hearing or trial unless the court determines for good cause that such appointment is not appropriate." HL §81.19(c) (emphasis added).

In appointing a guardian for an incapacitated person, the primary concern is the best interests of the incapacitated person. See Matter of Von Bulow, 63 NY2d 221, 224 (1984); Matter of Rudick, 278 AD2d 328, 329 (2000). The appointment of a family member is preferable. See, e.g., Matter of Ardelia R., 28 AD3d 485, 487 (2006); Matter of Joseph V., 307 AD2d 469, 471 (2003). "[S]trangers will not be appointed [guardian] of the person or property of the incompetent, unless it is impossible to find within the family circle, or their nominees, one who is qualified to serve." Ardelia, supra; Matter of Chase, 264 AD2d 330, 331 (1st Dept 1999), quoting Matter of Dietz, 247 A.D. 366, 367 (1st Dept 2006); Matter of Camoia (Giaimo), 2015 NY Misc. LEXIS 2934, *41-42 (Sup Ct, Kings County 2015).

The Court makes the following findings of fact. GP currently lives with her son, SP, in his home in Binghamton, where she has resided since the original filing of this guardianship petition in late 2018. SP has had employment and training as a paramedic, home health aide, and nurse's aide. SP provides and has paid for all GP's daily personal needs.

Since SP's appointment as interim property guardian on February 20, 2020, he has made progress toward getting GP's finances in order in a relatively short amount of time, especially considering the difficulties caused by the ongoing Covid-19 pandemic. He has created a stable budget for GP's monthly income and expenses, albeit one that does not yet, in the Court's view, adequately address her outstanding court-ordered legal fees. SP prioritized paying the back taxes on GP's real properties located in Oxford, NY, making a $41,956.79 payment for back taxes from funds turned over by the prior property guardian and reimbursements from GP's health savings account.

Using the interim guardianship authority, SP rented two of GP's Oxford properties for a total of $1,600 per month, which ensures more income flowing into the guardianship. SP entered these agreements while preserving GP's ability to use the in-law suite at 235 Manwarren Road.

SP does not get along and has had conflict with at least three of his siblings, to varying degrees. CO is the only other child who has visited with GP since she has lived with SP. There was no evidence presented of any arguments or incidents requiring police assistance since GP has resided in SP's home.

The Court makes the following conclusions of law. The Court previously found GP [*5]requires the assistance of a property guardian, and the sole issue before the Court is the identity of the individual who will act as her permanent property guardian. Throughout this proceeding, GP has expressed that she does not wish to have any guardian appointed, but she has also consistently indicated she would prefer SP to act as her guardian if one must be appointed. This amounts to an informal nomination of SP to act as her property guardian, and the Court must thus appoint him unless there is a showing that such appointment would be inappropriate. MHL §81.19(c). Based on the clear and convincing evidence presented at the hearing, and for the following reasons, the Court will appoint SP as property guardian of GP.

SP has training and work experience that make him an appropriate choice to act as GP's fiduciary. SP has consistently expressed interest in acting as his mother's property guardian, and, so far, has proven to the Court that he can appropriately discharge his duties as the fiduciary of her property. SP followed through to obtain reimbursements from GP's health savings account, challenged wrongful charges made to the USAA account, and worked to get tenants in GP's properties to generate additional income, all of which are elements of getting GP's debts completely paid off. SP has managed to get a working budget for GP while ensuring her properties will not go into foreclosure, satisfying her express desire to retain ownership of the properties, if possible. SP maintained GP's right to use the in-law suite in one of her properties, so she may continue to visit and enjoy it. Managing to strike a balance between utilizing GP's property to generate income and ensuring she can still make use of the property demonstrates that SP is already appropriately fulfilling his responsibilities as fiduciary to GP and her property.

The Court originally appointed Mr. Getman as property guardian based on a finding that the tensions among GP's children, and between GP and some of her children, would impede the ability of any of the children to effectively act as property guardian. At this hearing, the Court was persuaded, through the testimony of SP and particularly the guardian of the person, that the turbulent dynamic within the family has diminished, and GP resides safely and happily at SP's home, where all her daily needs are met by SP, his wife, and her personal aides.

BP and CO opposed SP's request to be made permanent property guardian. BP conceded that SP has taken care of GP's needs and that his objection stems from his subjective assessment of SP's character. From the Court's perspective, character is in some ways indirectly relevant to whether an individual will be appointed as guardian. The real inquiry is whether the proposed guardian can appropriately fulfill his fiduciary duties and responsibilities for the incapacitated person. Since his appointment as interim property guardian, SP has shown he is capable of appropriately fulfilling these responsibilities. There was no evidence presented that he is currently unfit to continue as permanent property guardian, or that his service as guardian would be inappropriate for GP.

SP and his siblings have no legal or fiduciary responsibility to each other. With SP serving in the formal role of property guardian for GP, he is a fiduciary not only with respect to GP and her finances, primarily, but also with respect to her other children, his siblings, who stand to ultimately become her heirs. With SP in this fiduciary role, he can be better held to account for actions taken on GP's behalf than if he were not.

The Court hereby appoints SP as the property guardian of GP, to be confirmed in a separate Order and Findings. The Order will direct SP to file the guardian's typical initial and annual reports required by Mental Hygiene Law Sections 81.30 and 81.31 and will also require SP to submit a less formal accounting to his siblings twice annually. The Order will also confirm that CO, BP, EG have the right to visit with GP.

During the hearing and in his summation, SP indicated he will be seeking a room and board charge from GP, to be applied retroactively. SP is prohibited from assessing or paying any such charge without filing a petition seeking Court authorization, which will be scheduled on notice to all interested parties.

The new appointment order will also confirm that Michael F. Getman, Esq. is removed as trustee of the GP Living Trust, that SP is appointed as the successor trustee and that the assets of the Trust are to be included in the guardian's reports.

SP has confirmed the rental of an additional portion of GP's property for $1,000 per month, since the conclusion of the hearing on this matter. In recognition of this fact and the Court's concern about the pace of payment of legal fees for which GP is responsible, sure to be increased by the current proceeding, the new appointment Order will direct an increase in the monthly payment on the fee balance to $1,000, and reaffirm the priority of payment of those fees, including the fee awarded the prior property guardian.

In light of the modest cash balance in this guardianship and the nomination by GP of the guardian, the Court will waive the requirement of the posting of a bond.

Counsel for GP and for petitioner are invited to submit affirmations of services rendered to date. The Court will set those fees and the portion, if any, to be paid from the resources of GP, by separate Order.

This Decision constitutes the Order of the Court.