Upon the Order to Show Cause dated November 29, 2023; and Upon the Order of this Court dated February 6, 2024; and Upon the Affirmation in Opposition dated March 5, 2024; and Upon the hearing held on January 17, 2024; and

Upon the Court's site-visit on February 8, 2024, to the premises located at —, Brooklyn, NY, indexed under Block — Lot — in the County of Kings, and the appearances of R.C., the Incapacitated Person; Monica Kipiniak, Esq., Property Guardian; Alan Kestenbaum, Esq., attorney for R.C.A.; Dominic Famulari, Esq., attorney for V.C.; R.C.A., Personal Needs Guardian and daughter of R.C.; and V.C., son of R.C., at the subject premises; and

Upon the continued hearing held on March 6, 2024, and the appearances of Monica Kipiniak, Esq., Property Guardian; Alan Kestenbaum, Esq., attorney for R.C.A.; Dominic Famulari, Esq., attorney for V.C.; R.C.A., Personal Needs Guardian and daughter of R.C.; and V.C., son of R.C.;

The Property Guardian's application to revoke The R.C. Revocable Trust dated July 28, 2016 (the "Trust"), and mortgage the real property in trust located at —, Brooklyn, NY, indexed under Block — Lot — in the County of Kings ("Trust Estate"), is GRANTED to the extent that the Property Guardian shall have the authority to revoke the R.C. Revocable Trust.

On July 28, 2016, R.C. created the Trust for the purpose of placing the property located at —, Brooklyn, New York into the Trust for the sole benefit of the Grantor, R.C. By the terms of the Trust, R.C. appointed herself as Trustee. Under Article III of the Trust, the Grantor, R.C., has the authority to revoke the Trust at any time. Pursuant to Article IV of the Trust, R.C. is to receive the net income and principal of the Trust Estate to provide for her care and support during her lifetime. The Trust was subsequently amended on December 28, 2021, naming V.C. the sole beneficiary and Successor Trustee upon the death of R.C.

By Order of this Court dated August 7, 2023, R.C. was determined to be incapacitated within the meaning of Article 81 of the Mental Hygiene Law. The Order and Judgment dated September 11, 2023, appointed R.C.A. as Guardian of the Person of R.C., and appointed Monica Kipiniak as Guardian of the Property.

R.C. currently resides in her rental apartment located at —, Brooklyn, New York 11228. She requires full time assistance and currently receives home health care services through Neighborhood Angels, which costs approximately $1,700 a week. The Property Guardian moved to revoke the Trust and mortgage the Trust Estate because R.C.'s current monthly income fails to cover the costs of her care and support. To date, R.C. owes approximately $17,500 in Court Ordered fees, and approximately $11,000 in rental arrears.

"Mental Hygiene Law 81.21 contains a comprehensive but expressly nonexhaustive list of powers that may be granted a guardian depending on the needs and circumstances of the incapacitated person" (Matter of Elsie B., 265 AD2d 146, 148 [3d Dept 2000], see also MHL 81.21[a]). A property guardian has the power to, inter alia, "exercise or release powers held by the incapacitated person as trustee, personal representative, or donee of a power of appointment" (MHL 81.21[a][4]). Furthermore, a court may grant a petition pursuant to MHL § 81.21 "if it is satisfied by clear and convincing evidence inter alia that 'a competent, reasonable individual in the position of the incapacitated person would be likely to perform the act or acts under the same circumstances'... " (see Matter of Modesta v. (Maya V.) 107 AD3d 1008, 1009 [2d Dept 2013]; MHL § 81.21[e][2])).

According to the terms of the Trust, R.C., as Grantor and Trustee, retained the power to revoke the Trust at any time. Furthermore, R.C. retained the power to sell the Trust Estate for cash or on credit. Clearly, the power to revoke the trust falls within the ambit of powers retained by R.C. as Grantor and Trustee of the Trust. Since R.C. retained the right to revoke the trust and sell the Trust Estate, her Property Guardian, by extension, has the power to exercise that right on R.C.'s behalf (Matter of Elsie B., 265 AD2d at 149; see also In re Burns, 287 AD2d 862, 863-864 [3d Dept 2001]). As such, the Property Guardian has the authority to exercise such powers to provide for the support and care of R.C. and the motion to revoke the trust is granted.

The branch of the motion for permission to obtain a mortgage is denied. The proposed mortgage terms proffered to the Court are hard money loans with high interest rates. The Court determines at this juncture that the terms are not in the best interest of R.C. Therefore, the Court hereby directs that the property located at —, Brooklyn, New York shall be sold; accordingly, it is

ORDERED that Monica Kipiniak, as Property Guardian, shall revoke The R.C. Revocable Trust; and it is further

ORDERED, that DARWIN BERRY, of Channel Realty Co. of N.A. Corp., 1713 Nostrand Ave 1st, Brooklyn, New York 11226, a licensed appraiser, is hereby appointed to appraise the property located at —, Brooklyn, NY, indexed under Block — Lot — in the County of Kings; and it is

ORDERED, that on or before March 29, 2024, DARWIN BERRY shall submit a report of their appraisal to this Court and to the Property Guardian, Monica Kipiniak, Esq., of 26 Court Street, Ste 1016, Brooklyn, NY 11242, phone (718) 624-2058, email [email protected], and it is further

ORDERED, that JACOB GOLD, of Jacob Gold Realty, Inc., 2753 Coney Island Avenue, Brooklyn, NY 11235, phone (718) 753-1713, email address [email protected], a licensed [*2]real estate broker, is hereby appointed Real Estate Broker for the purpose of marketing and selling the subject premises located at —, Brooklyn, NY, indexed under Block — Lot — in the County of Kings; and it is

ORDERED, that the retained broker shall list the property at no less than the appraised value on the Multiple Listing Service or a comparable listing service for no less than 4 weeks.

This is the Decision and Order of the Court.