Upon the Order to Show Cause signed November 29, 2024, in which Petitioner sought to prevent Respondent L.B.W. ("Respondent") from moving Petitioner's wife, also Respondent's mother, C.B.C., from her current nursing facility in Brooklyn to Respondent's home in Georgia, [*2]and

Upon the Order dated December 2, 2024, transferring this matter to this Court because the same parties were involved in a Guardianship matter before this Court under index number 525614/2024, and

Upon oral arguments made on the motion with appearances by ALEX SUSI, Counsel for Petitioner; JAMES ENGLISH, Counsel for Respondent; MARC MENDLOWITZ, Court-appointed counsel to C.B.C. in the related Guardianship matter; Petitioner; Respondent; and C.B.C.; and

Upon the Court's taking judicial notice of the Court Evaluator's report submitted in the related Guardianship matter, index number 525614/2024, such report dated February 20, 2025, with exhibits including a Power of Attorney and Health Care Proxy both dated January 6, 2021, and both naming L.B.W. as agent; it is hereby

ORDERED that Petitioner's Order to Show Cause to prevent Respondent moving C.B.C. to Georgia is DENIED.

Petitioner seeks to prevent the discharge of his wife, C.B.C., from her current skilled nursing facility and to prevent Respondent from moving C.B.C. to Georgia. Petitioner, however, does not have any care plan in place upon C.B.C.'s discharge from the facility, nor does he contribute in any manner to paying for the cost of C.B.C.'s stay in the facility. His current home — and home with his wife, before her placement in the facility — is the subject of a partition action and scheduled to be sold. Petitioner does not yet have plans for a new residence.

The Power of Attorney and Health Care Proxy, both signed years after Petitioner and C.B.C. were wed, each name Respondent — C.B.C.'s only child — as Agent. Petitioner does not contest these directives. Respondent has sought to act under the powers accorded by these directives to discharge her mother, C.B.C., from the current nursing facility to her home in Georgia since December 2024. Respondent testified that she has conducted interviews and research to ensure that she will have adequate care resources and equipment to care for her mother, once she is in Georgia. Respondent also stated unequivocally that Petitioner also always was and is welcome to come live in Respondent's home with his wife. Many times in the past, Respondent testified, Petitioner and C.B.C. have visited Georgia together and stayed at Respondent's home for long periods of time.

Counsel for C.B.C. stated that she wants to move to Georgia but wants to remain in New York long enough to convince her husband, Petitioner, to move with her. Counsel argued that the Health Care Proxy is only effective once C.B.C. is unable or chooses not to make or communicated health care decisions. While that is the condition required for the Health Care Proxy to become effective, the Court previously found in the related Guardianship matter that C.B.C. is incapacitated within the meaning of Article 81 of the Mental Hygiene Law, but the Power of Attorney and Health Care Proxy were a less-restrictive means for care than a full guardianship. Therefore, both directives are in effect and the Agent named in them is authorized to make all decisions authorized in the directives, including, "to discharge [C.B.C.] from any hospital, skilled nursing facility, hospice, or other health care facility or service" (Health Care Proxy of C.B.C., dated January 6, 2021, at 3).

While Petitioner demonstrated that he loves his wife and would not like to be parted from her, he presented no reasonable plan for her medical or financial care. C.B.C., when she had capacity, chose whom she wanted to make decisions regarding her care and her finances: her daughter, Respondent L.B.W. The purpose of such advanced directives is to make decision-[*3]making authority clear in situations such as these. C.B.C.'s advanced directives were clear: Respondent should make the decisions, not Petitioner. Furthermore, Respondent demonstrated that she is prepared to provide all necessary care for her mother in Georgia.

Finally, as Respondent's counsel noted, only a limited guardianship was ordered, with authority to handle the open partition action and to engage in Medicaid planning. Therefore, the Court has only exercised its jurisdiction in the Guardianship to this extent, and a transfer between states made pursuant to the Power of Attorney and Health Care Proxy may be done without further Order of this Court.

This is the Decision and Order of the Court.