Upon the Order to Show Cause signed on August 21, 2024, wherein V.L. and A.D. requested that the Court remove the current guardian in this matter, NEW YORK FOUNDATION FOR SENIOR CITIZENS GUARDIAN SERVICES INC. ("NY FOUNDATION") and that they be named as Successor co-Guardians, and

Upon the opposition filed by NY FOUNDATION on October 14, 2024, and

Upon the oral arguments held on November 26, 2024, and March 5, 2025, it is hereby

ORDERED that the motion to remove NY FOUNDATION as Guardian of L.B. and to appoint V.L. and A.D. as Successor co-Guardians is DENIED.

As an initial matter, A.D. alleged that she and her father, V.L., had received no notice of the Guardianship matter. However, she also conceded having received a mailing telling them about the court date for the hearing (Tr. from March 5, 2025, at 3, ln 17-20). A.D. also acknowledged having had the opportunity to speak with the Court Evaluator who visited L.B.'s apartment as part of his investigation. Therefore, the Court finds that the movants had notice of the original proceeding in this matter. Neither movant chose to participate in the capacity hearing.

While the movants challenged the basis for the start of the guardianship proceeding, alleging that it sprung only from their personal dispute with one of L.B.'s aides, they did not challenge that a guardianship was necessary. They neither alleged that L.B. executed any advanced directives, nor that L.B. is not capacitated.

"Upon motion, the court appointing a guardian may remove such guardian when the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just" (Mental Hygiene Law § 81.35). The movants make no allegations about the fitness of the Guardian, NY FOUNDATION, and presented no evidence that NY FOUNDATION breached their fiduciary duty to L.B. or engaged in any other misconduct. The Court finds that movants did not establish any reason to remove the current guardian.

Furthermore, the Court does not find that the movants are fit to be co-Guardians in this matter. Both movants testified that, when L.B. lived at home, they were responsible for her care at night. However, both movants testified that L.B. was incontinent, but that neither of them would change her diapers at night even when a change was necessary, instead leaving her in them until the aide came in the morning to change her. V.L. testified that he never communicated with his grandmother's aides, including about what care had taken place during the day or overnight, and A.D. testified that she did not communicate with them either because of a language barrier. A.D. testified that while L.B. received Meals on Wheels, she and her father would eat some of the meals L.B. did not like because she is a picky eater. V.L. testified that Surrogate's Court granted him one-time access to a joint account shared by his grandfather and L.B. to withdraw $13,500.00 for his grandfather's funeral expenses (Tr. from November 26, 2024, at 21, ln 2-5). He testified that it was a one-time withdrawal (Id. at 38, ln 21-25), then later testified that he made several other withdrawals since then to "cover the bills" (Id. at 3-14). Similarly, A.D.'s testimony regarding whether her father had access to L.B.'S bank account changed from stating that he had no access to L.B.'s bank accounts (Tr. from March 5, 2025, at 10, ln 11-17) to acknowledging that he had access to one account (Id. at 16, ln 2-3).

The chief consideration of the Court in determining who should be appointed as guardian to an incapacitated person is the best interests of such person (Matter of Matter of Von Bulow, 63 NY2d 221, 224 [1984]). While it is preferable to appoint a family member, it is well within the discretion of the Court to appoint an independent guardian where the family members available are unsuitable (In re Joshua H., 62 AD3d 795 [2d Dept 2009]; In re Audrey D., 48 AD3d 806 [2d Dept 2008]; In re Ardelia R., 28 AD3d 485 [2d Dept 2006]).

In this matter, the Court finds that the available family members testified to their own neglect of L.B.'s care and were unable to give clear answers about whether or not they have access to her funds and withdraw money without any authorization to do so.

Accordingly, the Court finds that an independent guardian is most appropriate for the protection and benefit of L.B. and no evidence has come before the Court to suggest that NY FOUNDATION should not continue as the independent guardian. The motion is denied, and NY FOUNDATION shall remain as the Guardian of the Person and Property of L.B. pursuant to the Order and Judgment dated July 24, 2024.

This is the Decision and Order of the Court.