PAPERS CONSIDERED:

This is a highly contested, vitriolic guardianship proceeding pursuant to Article 81 of the Mental Hygiene Law wherein the petitioner-daughter seeks an order and judgment appointing her the guardian for the personal and property management needs of her father Fausto, an alleged incapacitated person.

An extensive hearing was intermittingly conducted by this Court over several weeks. One of the reasons the trial took so long, besides the fact that the adult siblings cannot get along with each other, is that, much to the chagrin of this Court, as explained in its recent decision of Matter of Adler (Garyfalia K), 83 Misc 3d 911, 912-914 [Sup Ct Nassau County, Knobel, J.], neither the Mental Hygiene Law or the Civil Practice Law and Rules ("CPLR") have formally distinguished and clarified between parties who file a petition ( or "cross-petition", even though the CPLR does not recognize such a pleading) to be a guardian, and individuals who are sent notices about the guardianship proceeding and want to participate in the proceeding and be considered to be appointed a guardian without filing a petition. That is what occurred here, with the sons of Fausto (Andy and Boris) retaining an attorney to represent them, advocate that they should be appointed the guardians, and contest the possibility of their sister being appointed the guardian, even though they did not file a petition to be their father's guardian. Nevertheless, this Court, in the interests of justice, permitted the sons to testify on their own behalf to be appointed guardians, and permitted their counsel to cross-examine the petitioner's witnesses, in view of the court evaluator's responsibility to interview and vet the sons and make recommendations to the Court about the sons, who are extensively involved in the management of Fausto's property.

" 'For a court to exercise its discretion to appoint a personal needs and/or a property management guardian, it must make a two-pronged determination'" (Matter of Maria Z. [Bonifacio Z.], 204 AD3d 930, 931, 164 N.Y.S.3d 881; see Mental Hygiene Law § 81.02[a]). "With respect to the first prong, when seeking to appoint a personal needs guardian, the court must first determine that 'the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety'" (Matter of Maria Z. [Bonifacio Z.], 204 AD3d at 931, quoting Mental Hygiene Law § 81.02[a][1]). "Similarly, in appointing a property management guardian, with respect to the first prong, the court must first determine that 'the appointment is necessary . . . to manage the property and financial affairs of that person'" (Matter of Maria Z. [Bonifacio Z.], 204 AD3d at 931, quoting Mental Hygiene Law § 81.02[a][1]). "The second prong [*2]concerning either the appointment of a personal needs or a property management guardian requires that the court determine 'that the person agrees to the appointment, or that the person is incapacitated'" (Matter of Maria Z. [Bonifacio Z.], 204 AD3d at 931, quoting Mental Hygiene Law § 81.02[a][2]). The petitioner has the burden of establishing the alleged incapacitated person's incapacity and need for a guardian by clear and convincing evidence (see Mental Hygiene Law §§ 81.02[b]; 81.12[a]). "

The undisputed evidence adduced at trial established that 79 year-old Fausto, who currently is residing with the petitioner, suffers from dementia and Alzheimer's disease and consequently requires assistance for all of his activities of daily living, including financial management. Accordingly, the Court finds that the petitioner has established by clear and convincing evidence that Fausto is an incapacitated person as defined by Mental Hygiene Law § 81.02. , and "that the appointment of a guardian was the least restrictive form of intervention necessary to provide for Fausto's personal needs and to manage his property and financial affairs (see id. § 81.02 [a], [b]; Matter of Maria Z. [Bonifacio Z.], 204 AD3d at 931)." (Matter of Joan A.C. (Debra A.C.—Irene R.), 217 AD3d 941, 942).

Thus, the only question which remains is who should be the guardian, or guardians, for the personal and property management needs of Fausto?

When selecting a guardian for an incapacitated person, the primary concern is what is in the best interests of the incapacitated person (Matter of Marilyn A.I. [Kevin D], 106 AD3d 821, 822, 964 N.Y.S.2d 640 [2013]). This determination involves the judgement of the facts and discretion of the court (Matter of Von Bulow, 62 NY2d 221, 224, 470 N.E.2d 866, 481 N.Y.S.2d 67 [1984]). However, even when the court finds that a guardian is necessary, it is not required to appoint the person proposed by the petitioner (Matter of Loftman [Mae R.], 123 AD3d 1034, 1035, 999 N.Y.S.2d 166 [2014]). Although the appointment of a family member is usually preferable (see, Matter of Audrey D., 48 AD3d 806, 807, 853 NYS2d 143 [2008]), when there is dissension between family members a court is justified in appointing a neutral third-party guardian (Matter of Wynn, 11 AD3d 1014, 1015-1016, 783 N.Y.S.2d 179 [2004]; cf. Matter of Weisman, 112 AD2d 871, 8720873, 493 N.Y.S.2d 833 [1985]; Matter of Lyon, 52 AD2d 847, 382 N.Y.S.2d 833 [1976], affd 41 NY2d 1056, 364 N.E.2d 847, 396 N.Y.S.2d 183 [1977]). Even when multiple members of a family desire the appointment as the sole guardian, and are qualified to do so, it may be in the best interest of the incapacitated person to appoint one of the siblings and have an independent co-guardians additionally appointed to avoid conflicts and advise the court (see, In re Margaret S., 2006 NY Misc. LEXIS 2833, 236 N.Y.L.J 9 [Sup Ct., Richmond 2003]).

Here, unfortunately, Fausto's property assets, which are all in the Dominican Republic, are directly or tangentially involved in litigation and requires significant property management and decisions which need to be made as to whether some or all of the assets need to be sold soon. The petitioner as well as the sons merit an appointment as a guardian in some capacity; however, they cannot work together as a team since the testimony adduced at trial revealed significant dissension between them, which was also substantiated by the court evaluator in her testimony and report. The Court Evaluator initially recommended appointing both the petitioner and Andy Colon as co-guardians, however, her opinion had changed by the time of her [*3]testimony. The only reason the Court Evaluator recommended family members be appointed rather than a Part 36 independent guardian is due to the limited funds available, unless assets are sold, but it is clear that the family is unable to work together. Unfortunately, it is not in Fausto's best interest to have the children appointed as co-guardians, nor, given the vast amount of financial investigation and potential conflicts of interests pertaining to the assets which exist, to have the family appointed as the property management guardians.

Consequently, the Court is constrained to appoint an independent property management guardian, and the petitioner shall be appointed as the personal needs guardian, especially given the current living situation of Fausto. The petitioner shall immediately take the personal needs fiduciary training program which is taken online at no cost pursuant to the Office of Court Administration website. However, the petitioner is directed to not interfere with her brothers' communication and visitation with their father. If any issue arises regarding visitation the petitioner or the sons shall contact the court. The guardians shall have all of the personal needs and property management powers that are requested in the petition as well as the powers enumerated in Mental Hygiene Law Article 81. The property guardian to be appointed by this Court shall immediately investigate and assess which assets, if any, need to be sold immediately. In view of the apparent lack of liquid assets in contrast to the real property [house and farm], the Court will not fix the amount of the bond at this time. The Court directs the property guardian to visit with Fausto at least 12 times per year.

With respect to compensation to the court appointees, the court directs court appointed counsel and the court evaluator to submit, at the time of the submission of the order and judgment, an affidavit or affirmation of the services they provided in this proceeding, and the Court will award reasonable compensation from the guardianship estate. The geriatric care manager, Virginia Belling, shall continue in that capacity and submit her affidavit of the services she provided at the time of the submission of the order and judgment. Counsel for petitioner may also submit her affirmation for the professional service she provided to petitioner and the court will award reasonable compensation from the guardianship estate.

The oral application by petitioner's counsel for an order appointing the petitioner as temporary guardian is granted only to the extent that this Court will appoint a temporary property guardian off of the Part 36 fiduciary list. Counsel for the petitioner shall immediately submit in word format a proposed order, upon notice to all counsel and the court evaluator, authorizing the guardian to immediately engage in all necessary activity to preserve and/or sell and/or engage in litigation pertaining to any interest or rights Fausto may have in any property or any asset in the Dominican Republic.

Based on all of the foregoing, the petition is granted in accordance with the findings as indicated above, and the order and judgment shall be prepared and settled by petitioner's counsel on appropriate notice to counsel for the petitioner, counsel for Andy and Boris, court-appointed counsel, and the court evaluator. Copies of the transcripts of the entire proceeding shall accompany the proposed judgment.

The foregoing constitutes the decision and order of this Court.