In this Article 81 proceeding, in which competing petitions for guardianship have been filed by the brother of Josephus Stewart a/k/a Josephus "Claud" Stewart, the alleged incapacitated person (AIP), and by the General Director and Chief Executive Officer of Strong Memorial Hospital, the issue is not whether the AIP is incapacitated—all agree he is in a persistent vegetative state and has been for over four years—but whether the best qualified person to serve as personal needs and property management guardian is the AIP's brother—who has said he will continue the AIP on life support—or the spouse, who won't, believing that her husband is irreversibly brain damaged.

The court held a hearing on December 3, 2024. The AIP was present virtually but was non-responsive to questions from the court.

What follows are the Court's Findings of Fact and Conclusions of Law.

In 2020 Josephus Stewart a/k/a Josephus "Claud" Stewart (referred to hereinafter as "Claud") suffered a stroke and has been hospitalized since, entirely non-verbal, non-responsive to directions, unable to provide for any of his personal needs or property management.

Claud is in a "persistent vegetative state." While his organs—lungs, kidney, liver and heart - function without assistance—he exhibits no response to stimuli, except possibly a reflex. An MRI done several years ago showed that his brain was less than half of a normal person's brain. He will not recover that loss of tissue and brain matter. He is on a tracheostomy and a feeding tube although he is not on a respirator.

Claud has been at Strong Memorial Hospital ("Strong") since his stroke.

Claud is married to Teresa Stewart. They married six months before Claud had his stroke, although they had known each other long before that.

Strong maintains an "Ethics Review Committee" ("ERC") to determine appropriate measures to take when one is in a persistent vegetative state and unlikely to recover any degree of brain function. The ERC met in May 2024 and reached out to the AIP's wife, who met with the committee.

There were two more meetings.

Before the second meeting in August, a Strong social worker called John Stewart, Claud's brother, to tell him that Teresa had changed Claud's status from "all extraordinary care" to "do not resuscitate."

John was unable to attend the second meeting, and ultimately the ERC felt that Claud's wife Teresa was the most appropriate person to decide whether to continue life support, consistent with the Family Health Care Decisions Act of the Public Health Law.

Strong's ERC convened a third meeting in September, this time attended by John. The purpose was to discuss a request by Teresa to terminate feeding and hydration. John protested the cessation of hydration and a feeding tube, arguing that the ERC's own policy did not meet the conditions for terminating Claud's life.

John filed a pro se petition ^[FN1] pursuant to Article 81 to be appointed guardian.

Aware of John's petition, Strong then filed a cross-petition pursuant to Article 81 for a guardianship for personal needs and property management for Claud and nominated the spouse Teresa to be guardian.

John and Teresa agree that Claud is incapacitated.

Teresa wishes to end "life-sustaining treatment," defined at Mental Hygiene Law § 81.03 (j) as "medical treatment which is sustaining life functions and without which, according to reasonable medical judgment, the patient will die within a relatively short time period." She agrees with the physicians at Strong as to the prognosis for Claud.

The brother John Stewart wants to continue Claud on "life-sustaining treatment." John is a pastor of the Baptist denomination. His brother Claud, the AIP, is an ordained Lutheran pastor and was active as a "Minister of the Gospel."

John claims to "know" his brother and knows him to be a man of deep spirituality. He (again) "knows" in his heart that Claud would want to stay alive. He cited the story of Jesus and Lazarus (New International Version, John 11:1-43), which relates the miracle in which Jesus brought Lazarus back from the dead. John in particular pointed to the passage in which it is related that Jesus, upon hearing that "the one you love"—meaning Lazarus—is sick, "stayed where he was two days more." John interpreted this to mean that God needn't bring his brother back to health on any timetable but could act at any time. Thus, Claud should be kept on "life-sustaining treatment" because God may, nay, John believes wholeheartedly, will restore his brain functions.

In his petition John quoted from another passage from Scripture, this from the Old Testament, Deuteronomy 30:11-20, that when the people of God—and Claud's born-again Christian family—"are given a choice between life and death, we choose life."^[FN2]

Claud did not give any indication to anyone as to what he would want to be done when determined to be in a vegetative state. John heard him say several times that he "wanted someone to fight for him," and considered making John's daughter the beneficiary of his life insurance, because she was a person who would not "pull the plug."

John asserted in his petition that Claud had listed him as the "primary" decision-maker, on the basis that the "hospital record" names him first as an emergency contact and Teresa second. The "hospital record" was not included with the petition and the assertion is deemed not credible or at least carries no weight.

No testimony was offered as to the criteria that Strong uses to recommend to a primary caregiver that life sustaining measures be suspended.

Based on evidence the court finds clear and convincing, Claud, the AIP is likely to suffer harm because: "1. the person is unable to provide for personal needs and/or property management; and 2. the person cannot adequately understand and appreciate the nature and consequences of such inability" (Mental Hygiene Law § 81.02 [b] [1 and 2]). Further, the appointment of a guardian for the AIP for both personal needs and property management is necessary to "provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person" (Mental Hygiene Law § 81.02), based upon the court's consideration of the factors set forth at Mental Hygiene Law § 81.15(b) and (c).

John and Teresa are both eligible to serve as guardians, pursuant to MHL 81.19 (a) (1):

Since the AIP is unable to express his wishes regarding whom to appoint as guardian, the court shall make its own appointment among eligible persons and subject to the considerations of MHL 81.19 (d) (1-8), which reads as follows:

Here, the AIP has not made an appointment or delegation and continues to be unable to do so, so this section is inapplicable.

John, the AIP's brother, in uncontradicted testimony, presents as having an extraordinarily close relationship with Claud. Before Claud's stroke they shared a deep relationship grounded not just as brothers but in a love of God and their shared faith.

Teresa is the AIP's spouse, and although emphasis was placed by John on the short duration of the marriage before Claud had his stroke, she testified credibly that they had known each other for years.

Care is being provided by Strong, however, both Teresa and John have been present by the side of Claud continually since the stroke.

The singular and extraordinary power the guardian will exercise is whether to continue life-sustaining treatment. On that the nominated guardians differ diametrically.

Both John and Teresa are articulate and well-spoken. Teresa's educational background was not elicited; however, she did not lack ability to comprehend the issues and to express her love for Claud.

John has a law degree and at one time practiced law in the Maryland area before being disbarred for misuse of client funds. He expresses himself well in both written submissions and his testimony.

There is no issue regarding finances. Claud is completely dependent on public support.

The unique requirement of the AIP is that though he is in a vegetative state, he does not need a respirator to live. He breathes on his own but needs a feeding tube and a tracheostomy, The proposal by the hospital is to remove the feeding tube and hydration, which will slowly starve him to death.

As the wishes of the AIP are not known, the court finds that there is no conflict of interest between the proposed guardians and the AIP.

It would not be unreasonable to conclude that the attributes of both the nominated guardians balance out. John is the AIP's brother. The depth of their relationship has not been disputed. It is all the more profound in being rooted as well in their shared and visibly lived faith, and in the knowledge that John claims to have concerning Claud's desire to continue to live.

Having said that, the court gives no weight to John's assertion that he knows that Claud, presently maintains some degree of consciousness, of spiritual connection with God, that evinces a desire to continue to live. In four years, no person can point to any sign that Claud has any level of consciousness beyond that of a reflex.

Teresa is his spouse. That alone might in some minds make her the right choice as guardian. After all, in the Christian religion, which John and Claud profess, the words of matrimonial vows are taken from Scripture. In Genesis 2:24 it is written: "Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh." In the [*2]New Testament Jesus (for the Christian the second person of the Trinity that is God, the one who was in the words of St Paul, the one who was "fully man and fully God" (Colossians 2:[9]) in answering a question about divorce, directs that " . . . "For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh." And in the words (believed by Catholics) to be that of Jesus himself, speaking of a husband and wife, "So they are no longer two, but one flesh. Therefore, what God has joined together, let man not separate" (Matthew 19:5-6).

Public Health Law section 2994-D enshrines the primacy of a spouse as a decision-maker.

That section reads as follows:

The court needs to go no further than to appoint the spouse, based upon the clear legislative directive that she has priority, regardless of the length of the marriage.

Whether she chooses to terminate life support, it would be her decision, not the court's, as long as she made that decision consistent with Public Health Law § 2994-d (4), which states that the decision-maker:

It would be premature to say that the spouse, upon her appointment, will definitely end life support, although that is what she indicated (and it is what Strong advises or recommends). But assuming arguendo that there is no uncertainty about what she will do, that she will end life support for Claud, and the issue comes before the court, perhaps on an Order To Show Cause or [*3]an appeal by the brother, the court offers this advice, as dicta, that whoever is appointed guardian shall take into account the factors and considerations cited above.

Nothing in the testimony suggests the spouse Teresa has not considered the above factors. Yes, Claud is religious, but the extent of his religious beliefs is one factor only, and here, the testimony regarding the depth of that belief does not delve deeply other than to express feelings.

CONCLUSION

It is in its discretion and in view of all the testimony, and in consideration of the governing statutes, that the application of Teresa Stewart to be the guardian of the personal needs and property management of Josephus Stewart a/k/a Josephus "Claud" Stewart is GRANTED. The application of John Stewart is DENIED.

Cross-Petitioner shall submit a proposed Order and Judgment.