UPON the Order to Show Cause dated November 19, 2024, and the Order Appointing Temporary Guardian of the Property dated March 10, 2025; and

UPON the conference held on February 13, 2025, with appearances by ARI NEUBERGER, the attorney for Petitioner; SHOSHANA BRENENSON, Court-appointed counsel to J.C.; and HARVEY HERBERT, the Court Evaluator; and

UPON the in-person hearing held on April 2, 2025, with appearances by Y.L., Petitioner; M.K., the spouse of J.C.; M.L., the daughter of J.C.; SHOSHANA BRENENSON, Court-appointed counsel to J.C.; and HARVEY HERBERT, the Court Evaluator; and SHMUEL TAUB, the Temporary Guardian of the Property Management for J.C.; and

UPON the testimony of Y.L., Petitioner; M.K., the spouse of J.C.; M.L., the daughter of J.C.; and the testimony, report, and recommendations of HARVEY HERBERT, the Court Evaluator;

The Court finds by clear and convincing evidence that J.C. is incapacitated within the meaning of Article 81 of the Mental Hygiene Law. Petitioner was represented by counsel at the inception of this matter. However, because counsel previously represented J.C. in certain real estate transactions and therefore a possible conflict of interest arising, Petitioner was directed to retain new counsel. Petitioner appeared pro se at the April 2, 2025, in-person hearing.

J.C. is currently at the Palm Gardens Center for Nursing and Rehabilitation in Brooklyn, New York. He is unresponsive to conversation and is currently intubated. Upon consent of Court-appointed counsel, SHOSHANA BRENENSON, the Court waives his appearance. Petitioner is the son-in-law of J.C. and has assisted the family since J.C.'s hospitalization and discharge from the hospital in August 2024.

A Halachic Medical Directive executed on September 5, 2023, was presented to the Court. Upon inspection, the medical directive names C.C., son of J.C., as agent, and Y.L. as alternate agent, on behalf of J.C.

Mental Hygiene Law 81.29(d) provides that, where the court issues a finding of incapacity and appoints a guardian, the court may "amend, or revoke any previously executed appointment, power, or delegation made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed appointment was made while the person was [*2]incapacitated or if the court determines that there has been a breach of fiduciary duty by the previously appointed agent" (Mental Hygiene Law § 81.29(d)). A prior appointment of a health care agent or health care proxy is subject to the court's review under Mental Hygiene Law § 81.29(d). Importantly, Article 81 of the Mental Hygiene Law calls for the least restrictive form of intervention when determining whether the appointment of a guardian of the person and/or property is necessary for an alleged incapacitated person (Mental Hygiene Law § 81.01). Moreover, the statute requires a guardianship be "tailored to the individual needs of the person and account for the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person's life" (Id). Absent a finding of incapacity at the time of execution of an advanced directive, the Court should "account for the personal wishes, preferences and desires of the person" by adopting previous directives already in place (Id). The court may dismiss a petition if it is established that the AIP had a valid advanced directive that had not been revoked and the agents, he appointed thereunder possessed sufficient authority to meet his needs (see Matter of Isadora R., 5 AD3d 494 [2d Dept 2004]; Matter of Anthony Rose, 26 Misc 3d 1213[A], 2010 NY Slip Op. 50087(U) [Sup Ct Dutchess County 2010]).

The Halachic Medical Directive is evidence of J.C.'s intent to designate the agents to act, for medical purposes, on his behalf in the event of incapacity. The testimony and documentary evidence supports the determination that J.C. was not incapacitated when executing the September 5, 2023, directive. As such, the Court finds that this advanced directive provides for a less-restrictive means of caring for J.C. and takes into account his personal preferences and wishes. Therefore, the appointment of a personal needs guardian is not necessary. Accordingly, that portion of the petition is denied without prejudice.

With respect to property management, the Court appointed a Temporary Guardian, SHMUEL TAUB, on March 10, 2025. The parties have consented to the appointment of SHMUEL TAUB as permanent Guardian of the Property. The Guardian of the Property shall marshal all income and assets of J.C., including rental income for the investment property located at XXX, Brooklyn, New York. Additionally, the Guardian of the Property shall collect all documentation for the investment property located at XXX, Brooklyn, New York, and the residential property located at XXXX, Ramapo, New York. The Guardian of the Property shall collect all documentation related to the XXX LLC and XXXX, LLC, including all incorporation and tax documents, and operating agreements. The Guardian shall also conduct a title search on both properties and shall have the authority to access all County Clerk records for both properties in Kings and Rockland Counties.

The Guardian of the Property shall also investigate whether an action should be commenced with respect to alleged injuries sustained during J.C.'s hospitalization. In addition, the Guardian of the Property shall apply for government benefits.

Petitioner, Y.L., shall submit a full accounting of all rental income collected and all disbursements made from the collected income for the period from August 19, 2024, through the date of this Order, and turn over the remaining balance to the Guardian of the Property. Bond shall be waived, but may be reconsidered upon the filing of the initial and annual reports. Fees of the Court Evaluator and Court-appointed counsel shall be paid from the guardianship.