Matter of Greenfield (D.C.) (2022 NY Slip Op 22094)

Moskowitz Legal Group, LLP, Hewlett (Judah Schwartz of counsel), for petitioner.

Mental Hygiene Legal Service, Central Islip (David J. Alamia of counsel), for D.C.

This matter was commenced by petitioner Elimelech Greenfield, administrator of Hilaire Rehabilitation and Nursing (Hilaire or petitioner), by order to show cause, dated November 24, 2021, seeking an order pursuant to article 81 of the Mental Hygiene Law for the appointment of a guardian for both the person and property of the alleged incapacitated person D.C. (D.C. or AIP). Upon signing the order to show cause, the court appointed Mental Hygiene Legal Service as counsel for the AIP.

Evidentiary Hearing

A hearing on the merits was conducted on February 28, 2022. The AIP is 63 years old and has been residing at Hilaire since in or about July 2020. He suffers from schizophrenia, dementia and an altered mental status, and requires assistance with daily life activities. The testimony further demonstrated that the AIP suffers from additional cognitive deficiencies, including memory loss, and is unable to either make medical decisions on his own behalf or manage his finances. It was uncontroverted that at Hilaire the AIP's day-to-day care and personal needs are being adequately met by Hilaire in concert with Do.C., the{**75 Misc 3d at 246} daughter of the AIP, who is making personal decisions on behalf of the AIP pursuant to the Family Health Care Decisions Act (FHCDA).

During the hearing, Do.C. introduced a durable general power of attorney (POA), executed by the AIP on June 11, 2020 (exhibit 2). The POA appoints Do.C. to act as her father's attorney-in-fact.

At the conclusion of the testimony, the court granted petitioner's request to keep the hearing open to the extent that counsel may explore any collateral issues pertaining to the POA. Counsel was further permitted an opportunity to submit additional information for the court's consideration on or before March 11, 2022. To date, neither counsel for the petitioner nor the AIP has submitted additional documentation or requested leave to elicit additional testimony regarding the POA or any other matter related to the petition. By email dated March 24, 2022, counsel for the AIP requested that the hearing be closed.

Legal Standard

In order to prevail on its application for the appointment of a personal needs guardian or a property management guardian, the petitioner must satisfy a two-pronged standard (see Mental Hygiene Law § 81.02 [a]; Matter of Aurelia S. [Banks], 186 AD3d 715, 716-717 [2d Dept 2020]; Matter of Linda H.A. [Belluci], 174 AD3d 704 [2d Dept 2019]; Matter of Agam S.B.-L. [Janna W.], 169 AD3d 1028, 1030 [2d Dept 2019]). Initially, the court must make a determination whether "the appointment is necessary to provide for the personal needs of [the AIP], including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of [the AIP]" (Mental Hygiene Law § 81.02 [a] [1]). If the appointment of a guardian is deemed necessary, then the court must decide whether the AIP "agrees to the appointment, or that the person is [*2]incapacitated" (id. § 81.02 [a] [2]). A finding of incapacity requires "a determination that a person is likely to suffer harm because . . . the person is unable to provide for [his or her] personal needs and/or property management; and . . . the person cannot adequately understand and appreciate the nature and consequences of such inability" (id. § 81.02 [b] [1], [2]; see Matter of Carolyn S. [Gaylor], 192 AD3d 1114 [2d Dept 2021]; Matter of Carole L., 136 AD3d 917, 918-919 [2d Dept 2016]).

In reaching its determination, the court notes that the burden of proof remains with the petitioner by clear and{**75 Misc 3d at 247} convincing evidence. "[P]rimary consideration [shall be given] to the functional level and functional limitations of the person" (see Mental Hygiene Law § 81.02 [c]). If the petitioner satisfies its burden, any guardian appointed may only be granted "those powers which are necessary to provide for personal needs and/or property management of the incapacitated person in such a manner as appropriate to the individual and which shall constitute the least restrictive form of intervention" (id. § 81.02 [a] [2]).

Here, the petitioner established by clear and convincing evidence that the AIP is incapacitated as defined in article 81 of the Mental Hygiene Law (see Mental Hygiene Law § 81.02 [b]). However, the court may only appoint a guardian where one or more of the incapacitated person's personal or management needs are not adequately being cared for due to the functional limitations and the incapacitated person's lack of understanding or appreciation for his limitations.

The court concludes that the appointment of a guardian to protect the personal needs and/or property management of the AIP is not necessary in the instant matter, and, as a result, the application is denied. The evidence failed to demonstrate that the AIP is likely to suffer harm due to his functional limitations, his inability to provide for his own personal needs or his lack of capacity to manage his affairs. To the contrary, the AIP's needs are presently being adequately managed by Do.C., the AIP's daughter, pursuant to both the duly executed POA and the FHCDA (see Public Health Law art 29-CC).

Accordingly, the petitioner is unable to satisfy its burden since the AIP is not likely to suffer harm due to his functional limitations. The Appellate Division, Second Department has held that "[e]ven if all of the elements of incapacity are present, a guardian should be appointed only as a last resort, and should not be imposed if available resources or other alternatives will adequately protect the person" (Matter of Maher, 207 AD2d 133, 140 [2d Dept 1994]). Moreover, where prior to becoming incapacitated, the AIP executes advanced directives, the court will not appoint a guardian because the AIP "effectuated a plan for the management of his affairs which obviate[s] the need for a guardian" (id. at 142; Matter of Crump [Parthe], 230 AD2d 850 [2d Dept 1996]; Matter of O'Hear [Rodriquez], 219 AD2d 720 [2d Dept 1995] [guardian not necessary for an{**75 Misc 3d at 248} incapacitated person who had appointed adult son power of attorney and executed living will and health care proxy]).

Based on the foregoing, the court finds that the appointment of a guardian is not necessary to care for the personal needs or property management of the AIP. The evidence adduces that the [*3]AIP previously executed a POA that is valid and enforceable, and the AIP's daughter is further making medical decisions on behalf of the AIP which the petitioner has indicated it will continue to honor. The court finds persuasive and adopts the reasoning in Matter of Stephanie Z. where the Chemung County Supreme Court denied the application and dismissed the article 81 petition because, similar to the instant matter, the AIP had "sufficient resources in place to address [his] limitations, through [his] placement at the Facility, the existing power of attorney and the Family Health Care Decisions Act" (see 72 Misc 3d 1213[A], 2021 NY Slip Op 50736[U], *5 [Sup Ct, Chemung County 2021]).

In rendering the herein decision, the court affords tremendous weight to the testimony of the court evaluator who deviated from his written recommendations after the POA was introduced for the first time at the hearing and is of the opinion that the appointment of a guardian is unnecessary. Accordingly, it is hereby ordered that the application for the appointment of a guardian for the AIP is denied; and it is hereby further ordered that the petition is dismissed.