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Mental Hygiene Law Article 81

I. Mental Hygiene Law Article 81 a. Replaced Mental Hygiene Law Articles 77 and 78

In the Matter of Lois F., an Incapacitated Person. Ruth F., Appellant; Carol W. Wallace, as County Commissioner of Social Services of the County of Greene, Respondent.

209 A.D.2d 856 Supreme Court, Appellate Division, Third Department, New York

(November 17, 1994)

CITE TITLE AS: Matter of Lois F. Mercure, J. P. Appeals (1) from an order and judgment of the County Court of Greene County (Lalor, J.), entered August 25, 1993, which, in a proceeding pursuant to Mental Hygiene Law article 78, appointed respondent as the guardian of Lois F., and (2) from an amended order and judgment of said court, entered May 24, 1994, which, inter alia, denied petitioner's motion for increased visitation and access to the medical reports of Lois F. In July 1991, petitioner, age 77, lived with her then 46-year-old mentally retarded daughter, Lois F. in the Town of Cairo, Greene County. At that time, respondent filed a petition pursuant*857 to Mental Hygiene Law article 78 alleging that Lois was incompetent to manage herself or her property and that a committee should be appointed. In October 1991, respondent, petitioner, Lois and Elizabeth Wright, on behalf of Mental Hygiene Legal Service, entered into a stipulation wherein they agreed that Lois was mentally retarded and unable to handle her own affairs and that a committee should be appointed. It was also stipulated that respondent would act as committee for Lois, that petitioner “is not to interfere with the present status or situation of [Lois]”, and that petitioner may apply to become Lois' committee at any time provided that petitioner submits proof of her “medical and mental health” to the court. In March 1993, petitioner sought to vacate the stipulation and to be appointed Lois' committee upon the ground of allegedly changed circumstances in that petitioner had been denied visitation with Lois and that severe medical problems had arisen during the course of Lois' placement with respondent. At petitioner's request, a hearing on the application was conducted on April 26, 1993 pursuant to the newly enacted Mental Hygiene Law article 81(see,L 1992, ch 698). At the commencement of the hearing, County Court ruled that Lois may be removed from the courtroom pursuant to respondent's motion. Petitioner did not object to the request; in fact, her counsel stated, “My client most definitely would like her daughter removed from the Courtroom.” Following the hearing, County Court determined that respondent should be Lois' guardian and granted petitioner visitation at respondent's discretion. In March 1994, petitioner sought increased visitation and disclosure of medical information regarding Lois. The order to show cause did not request oral argument, and petitioner's counsel did not appear before County Court on the return date of the motion. After hearing oral argument opposing the petition from respondent's counsel and Wright, County Court denied the petition and an amended order and

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judgment was entered, reflecting that respondent has the power to consent to visitation as proposed by the Office of Mental Retardation and Developmental Disabilities, in accord with respondent's request. Petitioner appeals. We reject petitioner's primary argument that County Court erred in relying upon the October 1991 stipulation that Lois was incapacitated. First, petitioner's assertions that the stipulation was improper under the new provisions of the Mental Hygiene Law and that a new showing of Lois' incapacity should have been made during the April 1993 hearing are *858 raised for the first time on appeal. As such, they are not properly before this Court and are, therefore, unavailing (see, 1 Newman, NY Appellate Practice § 4.18 [2]). Second, the law in effect during October 1991 did not prohibit stipulations with respect to incapacity, and the facts stipulated to by the parties and the evidence presented gave County Court an ample basis upon which to make a finding of incapacity pursuant to Mental Hygiene Law article 78 in any event. Third, in seeking an order vacating the stipulation, petitioner did not allege in the petition or present facts at the hearing that the stipulation was entered into under duress or that it was the product of fraud, overreaching, collusion or mistake such that it should be vacated (see, Hallock v State of New

York, 64 NY2d 224). Fourth, County Court's adjudication of incapacity and appointment of a committee having been properly made, it survived the repeal of Mental Hygiene Law article 78 and the enactment of Mental Hygiene Law article 81, effective April 1, 1993 (see, L 1993, ch 32, § 17). The Legislature plainly intended to give full force and effect to prior determinations. Next, County Court properly denied petitioner's 1993 motion to remove respondent as committee and to substitute petitioner as guardian. Although family members are generally preferred for appointment in cases such as this (see, Matter of Steinberg, 121 AD2d 872;Matter of Weisman, 112 AD2d 871;Matter of Starrett, 53 AD2d 846;Matter of West, 13 AD2d 599), and despite petitioner's obvious love and affection for Lois, where, as here, the evidence demonstrates that a family member is incapable of providing necessary care, it is appropriate for County Court to look elsewhere. The record is replete with evidence that respondent has provided necessary and suitable care for Lois and that petitioner is both physically and mentally incapable of providing such care. Denise McCarthy, a psychologist who examined petitioner, testified that petitioner suffers from a “fixed delusional system” that interferes with her ability to make sound judgments. The testimony at the hearing also established that petitioner was unable to lift Lois out of bed or otherwise manage her, that she lacks the ability to recognize Lois' needs and that she often refused to cooperate with Lois' caregivers. It is not insignificant that petitioner's testimony at the hearing was unfocused, discursive and erratic. The record evidence concerning petitioner's physical and mental health demonstrates that petitioner is not “suitable to exercise the powers necessary to assist [Lois]” (Mental Hygiene Law § 81.19 [a] [1]) and *859 “unfit” to be appointed her guardian (Mental Hygiene Law § 81.19 [b]). We also reject petitioner's argument that a new hearing is required because Lois was not afforded an opportunity to participate in the hearing pursuant to Mental Hygiene Law § 81.11. Even assuming that Lois was required to be present at the 1993 hearing to remove respondent as committee, the pertinent provisions of the Mental Hygiene Law were complied with. The record amply supports County Court's finding that Lois was not present at the hearing “because of ill health and her inability to [participate] meaningfully in the hearing” (see,Mental Hygiene Law § 81.11 [c] [2]). Petitioner's remaining contentions, including her claim that County Court erred in denying her motion for increased visitation and medical information regarding Lois, have been considered

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and found to be meritless. Crew III, Casey and Peters, JJ., concur. Ordered that the order and judgment, and amended order and judgment are affirmed, without costs.

b. Article 81 permits a guardian to have “property management” or “personal needs” powers

Property Management Powers- MHL §81.21

1. make gifts; 2. provide support for persons dependent upon the incapacitated person for support, whether or not the incapacitated person is legally obligated to provide that support; 3. convey or release contingent and expectant interests in property, including marital property rights and any right of survivorship incidental to joint tenancy or tenancy by the entirety; 4. exercise or release powers held by the incapacitated person as trustee, personal representative, guardian for minor, guardian, or donee of a power of appointment; 5. enter into contracts; 6. create revocable or irrevocable trusts of property of the estate which may extend beyond the incapacity or life of the incapacitated person; 7. exercise options of the incapacitated person to purchase securities or other property; 8. exercise rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value; 9. exercise any right to an elective share in the estate of the incapacitated person's deceased spouse; 10. renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer consistent with paragraph (d) of section 2-1.11 of the estates, powers and trusts law; 11. authorize access to or release of confidential records; 12. apply for government and private benefits; 13. marshall assets; 14. pay the funeral expenses of the incapacitated person;

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15. pay such bills as may be reasonably necessary to maintain the incapacitated person; 16. invest funds of the incapacitated person as permitted by section 11-2.3 of the estates, powers and trusts law; 17. lease the primary residence for up to three years; 18. retain an accountant; 19. pay bills after the death of the incapacitated person provided the authority existed to pay such bills prior to death until a temporary administrator or executor is appointed; and 20. defend or maintain any judicial action or proceeding to a conclusion until an executor or administrator is appointed.

In addition to the above, you may wish to include an explicit provision that permits the guardian to have access to any financial, including bank records of the incapacitated person and to make any financial, including bank, transactions on behalf of the incapacitated person.

You may also wish to make an explicit provision that the guardian have physical

access to the incapacitated person and to their home. You might also want to permit the guardian to sell real and personal property and use

any proceeds for the benefit of the incapacitated person.

Personal Needs Powers– MHL §81.22

1. determine who shall provide personal care or assistance; 2. make decisions regarding social environment and other social aspects of the life of the incapacitated person; 3. determine whether the incapacitated person should travel; 4. determine whether the incapacitated person should possess a license to drive; 5. authorize access to or release of confidential records; 6. make decisions regarding education; 7. apply for government and private benefits; 8. (i) for decisions in hospitals as defined by subdivision eighteen of section twenty-nine hundred ninety-four-a of the public health law, act as the patient's surrogate pursuant to and subject to

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article twenty-nine-CC of the public health law, and (ii) in all other circumstances, to consent to or refuse generally accepted routine or major medical or dental treatment, subject to the decision-making standard in subdivision four of section twenty-nine hundred ninety-four-d of the public health law; 9. choose the place of abode; the choice of abode must be consistent with the findings under section 81.15 of this article, the existence of and availability of family, friends and social services in the community, the care, comfort and maintenance, and where appropriate, rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person resides; placement of the incapacitated person in a nursing home or residential care facility as those terms are defined in section two thousand eight hundred one of the public health law, or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person. No guardian may: 1. consent to the voluntary formal or informal admission of the incapacitated person to a mental hygiene facility under article nine or fifteen of this chapter or to a chemical dependence facility under article twenty-two of this chapter; 2. revoke any appointment or delegation made by the incapacitated person pursuant to sections 5-1501, 5-1601 and 5-1602 of the general obligations law, sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law, or any living will.

II. Why are Article 81 Guardianships sought and who seeks them?

Mental Hygiene Law § 81.06 Who may commence a proceeding

(a) A proceeding under this article shall be commenced by the filing of the petition with the court by: 1. the person alleged to be incapacitated; 2. a presumptive distributee of the person alleged to be incapacitated, as that term is defined in subdivision forty-two of section one hundred three of the surrogate's court procedure act; 3. an executor or administrator of an estate when the alleged incapacitated person is or may be the beneficiary of that estate; 4. a trustee of a trust when the alleged incapacitated person is or may be the grantor or a beneficiary of that trust; 5. the person with whom the person alleged to be incapacitated resides; 6. a person otherwise concerned with the welfare of the person alleged to be incapacitated. For purposes of this section a person otherwise concerned with the welfare of the person alleged to

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be incapacitated may include a corporation, or a public agency, including the department of social services in the county where the person alleged to be incapacitated resides regardless of whether the person alleged to be incapacitated is a recipient of public assistance; 7. the chief executive officer, or the designee of the chief executive officer, of a facility in which the person alleged to be incapacitated is a patient or resident.

III. Who May Serve As Guardian?

Mental Hygiene Law §81.19 Eligibility as guardian (a) 1. Any individual over eighteen years of age, or any parent under eighteen years of age, who is found by the court to be suitable to exercise the powers necessary to assist the incapacitated person may be appointed as guardian, including but not limited to a spouse, adult child, parent, or sibling. 2. A not-for-profit corporation organized to act in such capacity, a social services official, or public agency authorized to act in such capacity which has a concern for the incapacitated person, and any community guardian program operating pursuant to the provisions of title three of article nine-B of the social services law which is found by the court to be suitable to perform the duties necessary to assist the incapacitated person may be appointed as guardian, provided that a community guardian program shall be appointed as guardian only where a special proceeding for the appointment of a guardian under this article has been commenced by a social services official with whom such program was contracted. 3. A corporation, except that no corporation (other than as provided in paragraph two of this subdivision) may be authorized to exercise the powers necessary to assist the incapacitated person with personal needs. (b) The court shall appoint a person nominated as the guardian in accordance with the provisions of section 81.17 of this article unless the court determines the nominee is unfit or the alleged incapacitated person indicates that he or she no longer wishes the nominee to be appointed. (c) In the absence of a nomination in accordance with section 81.17 of this article, the court shall appoint a person nominated by the person alleged to be incapacitated orally or by conduct during the hearing or trial unless the court determines for good cause that such appointment is not appropriate. (d) In making any appointment under this article the court shall consider: 1. any appointment or delegation made by the person alleged to be incapacitated in accordance with the provisions of section 5-1501, 5-1601 or 5-1602 of the general obligations law and sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law;

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2. the social relationship between the incapacitated person and the person, if any, proposed as guardian, and the social relationship between the incapacitated person and other persons concerned with the welfare of the incapacitated person; 3. the care and services being provided to the incapacitated person at the time of the proceeding; 4. the powers which the guardian will exercise; 5. the educational, professional and business experience relevant to the nature of the services sought to be provided; 6. the nature of the financial resources involved; 7. the unique requirements of the incapacitated person; and 8. any conflicts of interest between the person proposed as guardian and the incapacitated person. (e) Unless the court finds that no other person or corporation is available or willing to act as guardian, or to provide needed services for the incapacitated person, the following persons or corporations may not serve as guardian: 1. one whose only interest in the person alleged to be incapacitated is that of a creditor; 2. one, other than a relative, who is a provider, or the employee of a provider, of health care, day care, educational, or residential services to the incapacitated person, whether direct or indirect. (f) Mental hygiene legal service may not serve as a guardian.

In the Matter of Ardelia R., Appellant. New York City Health and Hospital Corporation-

Elmhurst Hospital Center, Respondent. Raymond M., Nonparty Appellant; Suanne Linder Chiacchiaro, Nonparty Respondent.

Supreme Court, Appellate Division, Second Department, New York 28 A.D.3d 485

April 4, 2006

CITE TITLE AS: Matter of Ardelia R.

HEADNOTES Incapacitated and Mentally Disabled Persons Appointment of Guardian for Personal Needs or Property Management Since record established that 82-year-old appellant lacked understanding or appreciation of nature and consequences of her functional limitations, finding that she was incapacitated person requiring guardian was proper notwithstanding lack of medical testimony regarding her medical condition.

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Incapacitated and Mentally Disabled Persons Appointment of Guardian for Personal Needs or Property Management Independent guardian was properly appointed for appellant since appellant's family members were unsuitable—as there was evidence of undue influence in brother's actions to bring about execution of power of attorney and evidence of impropriety in brother's management of appellant's property, he was unsuitable to act as guardian; appellant's other two relatives were likewise unsuitable or unwilling to act as guardian. In a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of Ardelia R., an alleged incapacitated person, Ardelia R. and nonparty Raymond M. appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Thomas, J.), dated June 17, 2004, as, after a hearing, granted the petition, determined that Ardelia R. was an incapacitated person, and appointed Suanne Linder Chiacchiaro as guardian. Ordered that the appeal by Raymond M. is dismissed, without costs or disbursements, as he is not aggrieved by the portion of the order and judgment appealed from (seeCPLR 5511; Hayden v

Catholic Home Bur., 298 AD2d 557 [2002]); and it is further, Ordered that the order and judgment is affirmed insofar as appealed from by the appellant Ardelia R., without costs or disbursements.**2 The appellant Ardelia R. is an 82-year-old woman who was found in her home by Protective Services for Adults without running water, food, electricity, or heat. When she presented to Elmhurst Hospital Center, she was malodorous and frail and, thereafter, she was diagnosed with dementia, hypertension, and coronary artery disease. She was unable to cook, and was known to wander away from her home. She had forgotten where she banked and did not know her sources of income. Although she owned a home and possessed approximately $115,000 in savings, she was delinquent on her utility bills. Based on these facts, the hearing record established by clear and convincing evidence that Ardelia R. lacked the understanding or appreciation of the nature and consequences of her functional limitations (see Mental Hygiene Law § 81.02 [b] [1], [2]). Thus, the Supreme Court's finding that she was an incapacitated person requiring a guardian was proper notwithstanding the lack of medical testimony regarding her medical condition (see Matter of Rosa B.-S. [William

M.B.], 1 AD3d 355, 356 [2003];Matter of Harriet R., 224 AD2d 625, 626 [1996]; cf. Matter of

Grinker [Rose], 77 NY2d 703, 711 [1991];Matter of Don *487 ald F.L., 210 AD2d 227, 228 [1994];Matter of Flowers [Dove], 197 AD2d 515 [1993]). Moreover, the Supreme Court providently exercised its discretion in appointing an independent guardian since the record established that Ardelia R.'s family members were unsuitable (see

Mental Hygiene Law § 81.19 [a] [1], [d]; Matter of Joseph V., 307 AD2d 469, 471 [2003]). After admission to Elmhurst Hospital Center, Ardelia R. executed a power of attorney in favor of her brother, the appellant Raymond M. The record demonstrates that Raymond M. told Ardelia R. to sign the document without reading it and, thereafter, withdrew funds from her bank accounts and failed to account for a substantial portion of those funds. As there was evidence of undue influence in Raymond M.'s actions to bring about the execution of the power of attorney (see

Matter of Maher, 207 AD2d 133, 143 n [1994]) and evidence of impropriety in Raymond M.'s

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management of Ardelia R's property (see Matter of Nora McL. C. , 308 AD2d 445 [2003];Matter

of Rochester Gen. Hosp. [Levin], 158 Misc 2d 522, 528 [1993];cf. Matter of Maher, supra at 142-143), he was providently deemed unsuitable to act as guardian. Ardelia R.'s other two relatives were likewise unsuitable or unwilling to act as guardian. Accordingly, the Supreme Court properly appointed an independent guardian. Krausman, J.P., Spolzino, Lifson and Dillon, JJ., concur.

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In the Matter of J.M., Petitioner, for the Appointment of a Guardian of the Person and Property

of S.M., an Alleged Incapacitated Person Supreme Court, Bronx County

13 Misc.3d 582

June 12, 2006 CITE TITLE AS: Matter of S.M.

HEADNOTE Incapacitated and Mentally Disabled Persons Appointment of Guardian for Personal Needs or Property Management Convicted Felon Ineligible to be Guardian Petitioner, having been convicted of an armed robbery for which he served nine years in prison, was ineligible to be appointed as the guardian of the person and property of his mother, an alleged incapacitated person. With limited exceptions, persons who have been convicted of a felony or a recent misdemeanor are disqualified from being appointed as a guardian under Rules of the Chief Judge (22 NYCRR) § 36.2 (c) (7). Petitioner's felony conviction, however, was not disclosed by petitioner or his attorney, and was only discovered as a result of questions put to him by the court. Part 36 of the Rules of the Chief Judge should be amended so as to provide procedures for insuring that persons seeking appointment as guardians have not been convicted of a crime, and that persons seeking appointment as guardians of a child have, in addition, not been found responsible for child abuse or neglect and are not residing in a household with someone found responsible for child abuse or neglect.

RESEARCH REFERENCES Am Jur 2d, Guardian and Ward §§ 50, 88. Carmody-Wait 2d, Proceedings for Appointment of Guardian for Personal Needs and Property Management §§ 109:12, 109:14. 22 NYCRR 36.2 (c) (7). NY Jur 2d, Infants and Other Persons Under Legal Disability §§ 370, 372.

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ANNOTATION REFERENCE See ALR Index under Guardian and Ward.

FIND SIMILAR CASES ON WESTLAW Database: NY-ORCS Query: guardian /s personal /2 need & convict! /s felon*

APPEARANCES OF COUNSEL Bonina & Bonina (Amy Insler of counsel), for petitioner.

OPINION OF THE COURT Alexander W. Hunter, Jr., J. *583 A petition has been filed for the appointment of a guardian of the person and property of S.M., an alleged incapacitated person (hereinafter known as the person). The court, having been satisfied that the person was served with the order to show cause and petition by personal delivery at least 14 days prior to the return date and that all other persons required to be served under Mental Hygiene Law § 81.07 were timely served with the order to show cause and petition, appointed a court evaluator, Barbara V. Gurley, a social worker with the Mental Hygiene Legal Service, First Judicial Department. The hearing was held on June 8, 2006. The hearing was conducted in the absence of the person. The person is in a vegetative and nonresponsive state of being, and is, therefore, unable to comprehend this proceeding, nor is she able to offer her preference or desire regarding her needs and wishes. As such, the person is unable to participate meaningfully in the hearing of this matter, even if the hearing was conducted at her bedside. Her appearance was therefore waived. Petitioner J.M. and Ms. Gurley testified at the hearing.

FINDINGS OF FACT It is determined that the following findings of fact were established by clear and convincing proof upon the documentary evidence submitted and the testimony adduced. The petitioner, J.M., the person's son, states that the person suffered kidney failure two years ago as a result of having diabetes and other illnesses. Due to kidney failure, she has since required dialysis three times a week. This past June, while undergoing surgery for removal of her gall bladder, the person suffered medical complications which caused her current vegetative condition. She was removed to St. Barnabas Nursing Home where she was placed on a ventilator. This nursing home was chosen because it was one of only two facilities in New York City in which she could be ventilator dependent and receive dialysis at the same time. Her prognosis for recovery is very poor.**2 The person was born in Panama and came to live in New York when she was in her 20s. She married G.M., Sr. and had two sons, the petitioner and G.M., Jr., who resides in Portsmouth, Virginia. The person and her husband had been separated for over 20 years. Whether they had been divorced two years ago and whether he is still alive is unclear.

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Prior to her admission to the nursing home, the person had resided at 150 Burnside Avenue, apartment GF, Bronx, New *584 York. She had received a section 8 subsidy to assist her with the rent for the apartment. It appears that the person had not signed a health care proxy, power of attorney, or executed a do not resuscitate order. The person receives Social Security supplemental income in the amount of approximately $633 per month, which is collected by the nursing home and applied toward the cost of her care in the home. She also receives Medicaid benefits. G.M., Jr., petitioner's brother, might be currently struggling with an alcohol addiction and, if so, is unable to assist their mother. The petitioner is seeking guardianship of the person for the purpose of filing a medical malpractice action against the hospital doctors who performed the gall bladder surgery on her. He believes their negligence contributed to her current condition. The person will have additional assets from the proceeds of this action if successfully litigated. The petitioner, J.M., is 30 years old, single and has no dependents. He said that he did not finish high school, but eventually obtained a general education diploma. He has held past employment as a messenger, newspaper deliveryman and factory worker but is currently unemployed. Much to this court's surprise—as a result of questions put to him by the court—was petitioner's revelation that he was convicted of armed robbery and served nine years in prison. Unbeknownst to the court at the time of this questioning of petitioner was that Ms. Gurley informed petitioner and his attorney weeks prior to the hearing that such a conviction would make it “difficult for him to be bonded if the court were to appoint him guardian.” Why did counsel proceed to advocate the appointment of her client as guardian knowing that he was not eligible? As the petitioner sat in the witness box, this court—emphatically and in no uncertain terms—told him that he would not be appointed as the guardian for his mother. This court was outraged that counsel did not disclose the felony conviction during her direct examination of her client nor was there one word in the petition to reflect his questionable status. Even though the conviction was disclosed in the court evaluator's report, which was not read by this court prior to the time petitioner's attorney concluded her direct examination of her client, it was counsel's obligation to disclose petitioner's criminal felony conviction during her examination or in the petition. *585 Part 36 of the Rules of the Chief Judge (22 NYCRR) prohibits the appointment of a guardian who has a criminal conviction. FN1

**3 Appointing a person who turns out to be a convicted felon as a guardian to oversee and manage potentially millions of dollars—a person convicted of a crime or crimes that involve theft and dishonesty—could very well have disastrous consequences. The odds of him abusing this fiduciary position of trust are great. Taking the word of a proposed guardian is not enough. And, in this instance, the silence from counsel on this issue was deafening. Part 36 forbids guardianship appointment of felons. This case could have easily slipped through the cracks due to inadvertent judicial inattention to detail. The question becomes, how does the court insure compliance with this rule across the board? For that matter, what about the person who seeks

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appointment as guardian for an alleged incapacitated child who is, or who shares a household with an adult who is, a known child abuser or who has been found responsible for neglecting a child? I propose that the following procedural provisions be added as amendments to part 36: Insuring that those seeking appointment as guardians have not been convicted of a crime and/or those seeking appointment as the guardian of a child have not been found responsible for child abuse or neglect nor has anybody in his or her household. 1. A proposed guardian or newly appointed guardian shall be directed to appear for fingerprinting pursuant to an agreement between the New York State Division of Criminal Justice Services and the New York State Unified Court System in conjunction with these rules. A. A petition for the appointment of a guardian of an infant must show whether the petitioner has knowledge that a person nominated to be a guardian therein, or any individual 18 years of age or over who resides in the home of the proposed guardian is a subject of an indicated report, as such terms are defined in section 412 of the Social Services Law, filed with the statewide Central Register of Child Abuse and Maltreatment pursuant to title 6 of article 6 of the Social Services Law, or has been the subject of or the respondent in a child protective proceeding commenced under article 10 of the Family Court Act, which *586 proceeding resulted in an order finding that the child is an abused or neglected child.FN2 B. The court shall inquire of the Department of Social Services and the department shall inform the court whether a person nominated to be a guardian of such infant, or any individual 18 years of age or over who resides in the home of the proposed guardian is a subject of an indicated report, as such terms are defined in section 412 of the Social Services Law, filed with the statewide Central Register of Child Abuse and Maltreatment pursuant to title **4 6 of article 6 of the Social Services Law.FN3 C. When the court is informed that the infant, a person nominated to be a guardian of such infant, the petitioner, or any individual 18 years of age or over who resides in the home of the proposed guardian is a subject of or another person named in an indicated report, as such terms are defined in section 412 of the Social Services Law, filed with the statewide Central Register of Child Abuse and Maltreatment pursuant to title 6 of article 6 of the Social Services Law or is or has been the subject of or the respondent in or a party to a child protective proceeding commenced under article 10 of the Family Court Act which resulted in an order finding that the child is an abused or neglected child the court shall obtain such records regarding such report or proceeding as it deems appropriate and shall give the information contained therein due consideration in its determination.FN4 D. Where a report has now been received from the statewide Central Register of Child Abuse and Maltreatment which raises the possibility that the infant's guardian or proposed guardian is ineligible to serve as the fiduciary, the following order shall issue: (i) The court directs that the said guardian or proposed guardian present himself/herself at the office of the Guardianship Clerk of this court within 45 days of the date hereof so that (s)he may be fingerprinted. If the guardian/proposed guardian fails to be fingerprinted within the time provided, this decision will constitute the order of the court revoking his/her guardianship or

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proposed guardianship for failure to obey an order of the court. The Guardianship Clerk is directed to mail a copy of this decision and order to the guardian or proposed guardian at the address set forth in the petition or in his/her designation. The *587 Guardianship Clerk is directed to place the report of the New York State Central Register of Child Abuse and Maltreatment in a sealed file which is cross-referenced to the guardianship file.

CONCLUSIONS OF LAW 1. After examination of the documents submitted, the testimony provided, and the court evaluator's report, this court finds that it would be in the best interest of the person to appoint an independent guardian. Carl Lucas, Esq. is eligible for appointment as guardian under Mental Hygiene Law § 81.19, is best suited to exercise the powers necessary to assist the person, and is hereby appointed the guardian of the person and property. 2. The guardian shall afford the person the greatest amount of independence and self-determination with respect to her personal needs and property management in light of the person's functional level, understanding and appreciation of her functional limitations. 3. The guardian is granted the following powers necessary and sufficient to provide for the personal needs of the person: (**5 a) to determine who should provide personal care or assistance; (b) to make decisions regarding the social environment and other social aspects of the life of the person; (c) to choose the place of abode for the person, including, but not limited to nursing home or community residence; (d) to apply for government and private benefits on behalf of the person; (e) to authorize access to or release of confidential records; (f) to consent to or refuse generally accepted routine or major medical or dental treatment subject to the provisions of subdivision (e) of section 81.29 of this article dealing with life sustaining treatment; the guardian shall make treatment decisions consistent with the findings herein pursuant to Mental Hygiene Law § 81.15 and in accordance with the person's wishes, including the person's religious and moral beliefs, or if the person's wishes are not known, and cannot be ascertained with reasonable diligence, in accordance with the person's best interests, including a consideration of the dignity and uniqueness of every person, the possibility and extent of preserving the person's life, the preservation, improvement or restoration of the person's *588 health or functioning, the relief of the person's suffering, the adverse side effects associated with the treatment, any less intrusive alternative treatments, and such other concerns and values as a reasonable person in the person's circumstances would wish to consider; (g) to determine whether the person should travel; (h) to defend or maintain any civil judicial proceeding, including but not limited to the filing of a medical malpractice lawsuit in favor of the person, if warranted;

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4. The guardian of the property is granted the following powers necessary and sufficient to provide for the management of the person's assets: (a) the guardian shall be allowed to make reasonable expenditures from the person's assets, for the purpose of providing support of the person in the event the annual income is insufficient to meet the person's needs; (b) to marshal and invest the person's assets in investments eligible by law for investment of trust funds and to dispose of investments so made and reinvest the proceeds as so authorized; on information and belief, ascertain the facts and circumstances surrounding a proceeding that may be related to this one now pending in the Bronx County Surrogate's Court; (c) to pay any existing debts or claims which have been proven to the satisfaction of the guardian as being properly due and owing; (d) to preserve, protect and account for such property faithfully; to retain or employ attorneys, accountants or other professionals to assist in the performance of the duties of the guardian. However, payment of fees to such persons shall only be paid with prior approval of the court; (e) the guardian of the property may not alienate, mortgage, lease or otherwise dispose of real property without the specific direction of the court obtained upon proceedings taken for that purpose as prescribed in article 17 of the Real Property Actions and Proceedings Law, provided however, that without instituting such proceedings, the guardian of the property may, without the authorization of the court, lease any real property for a term not exceeding five years; (f) to pay funeral expenses. 5. Perform all other duties required by law. **6 6. These powers constitute the least restrictive form of intervention consistent with the person's functional limitations. *589 7. The bond which is normally required pursuant to Mental Hygiene Law § 81.25 is hereby waived at this time as the person will have very little funds left over after the costs of this proceeding and other outstanding bills are paid. However upon securing the proceeds from the lawsuit aforementioned in provision 3 (h) above, the guardian shall, pursuant to Mental Hygiene Law § 81.25, file a bond with sufficient sureties, conditioned that said guardian will, in all things, faithfully discharge the trust imposed herein, obey all the directions of the court in respect to that trust, make and render a true and just account of all monies and other properties received pursuant to the authority granted herein and the application thereof, and of all acts performed in the administration of the trust imposed herein whenever required to do so by the court, and will file the designation required by section 81.25 of the Mental Hygiene Law. The amount of the bond shall be the total value of the person's assets. 8. The guardian shall receive as compensation for performing his duties that compensation as is provided under section 81.28 of the Mental Hygiene Law and as approved by the court.

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9. The court evaluator may make application to this court for her fee to be paid out of the proceeds of the person's assets. 10. The guardian shall file an initial report and annual report, in accordance with Mental Hygiene Law §§ 81.30 and 81.31, with the Guardianship Department of Bronx County, 851 Grand Concourse, Bronx, New York. 11. Petitioner is directed to submit an order and judgment, with a copy of this decision, in accordance with Mental Hygiene Law § 81.16 (c) and the guardian is directed to file his designation in accordance with Mental Hygiene Law § 81.26. Said order and judgment shall be filed no later than 30 days from the date of the entry of this decision.

FOOTNOTES

FN1. “No person convicted of a felony, or for five years following the date of sentencing after conviction of a misdemeanor (unless otherwise waived by the Chief Administrator upon application), shall be appointed unless that person receives a certificate of relief from disabilities.” (22 NYCRR 36.2 [c] [7].)

FN2.See, Surrogate's Court Procedure Act § 1704.

FN3.See, Surrogate's Court Procedure Act § 1706.

FN4.See, Surrogate's Court Procedure Act § 1707.

2012 SESSION LAW NEWS OF NEW YORK 235th LEGISLATURE

Additions are indicated by Text; deletions by

Text. Vetoes are indicated by Text ;

stricken material by Text .

CHAPTER 475 A. 10608–A

GUARDIAN AND WARD—APPOINTMENTS—RULES AND REGULATIONS

Approved October 3, 2012

Effective April 1, 2013 AN ACT to amend the correction law and the mental hygiene law, in relation to the appointment of guardians

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The People of the State of New York, represented in Senate and Assembly, do enact as follows:

§ 1. Subparagraph (iii) of paragraph b of subdivision 2 of section 168–b of the correction law, as amended by chapter 595 of the laws of 2008 and as further amended by section 104 of part A of chapter 62 of the laws of 2011, is amended to read as follows:

<< NY CORRECT § 168–b >> (iii) a court, to enable the court to promptly comply with the provisions of paragraph (a–1) of subdivision one of section two hundred forty of the domestic relations law , and subdivision (e) of section six hundred fifty-one of the family court act , and subdivision (g) of section 81.19 of

the mental hygiene law. § 2. Section 81.19 of the mental hygiene law is amended by adding a new subdivision (g) to read as follows:

<< NY MENT HYG § 81. 19 >> (g) 1. In making an appointment or considering a revocation of an appointment under this

article, the court also may obtain and consider, and may authorize a court evaluator to

review the same and report to the court concerning, any of the following information

regarding the guardian or proposed guardian, and, if the incapacitated person resides or

will reside with such guardian or proposed guardian, any person eighteen years or older

residing in the guardian or proposed guardian's household: (i) a criminal history record check of such person or persons; and in furtherance thereof,

the court shall be authorized to: (1) obtain a set of such person's fingerprints; (2) direct

that the division of criminal justice services promptly provide to the court a criminal

history record, if any, with respect to such person or a statement that such person has no

criminal record; and (3) direct the submission of such person's fingerprints by the division

of criminal justice services to the federal bureau of investigation for purposes of a

nationwide criminal history record check pursuant to and consistent with public law 92–

544 to determine if such person has a criminal history in any state or federal jurisdiction; (ii) reports for such person or persons from the sex offender registry established and

maintained pursuant to section one hundred sixty-eight-b of the correction law; (iii) indicated reports for such person or persons from the statewide central register of

child abuse and maltreatment established and maintained pursuant to section four

hundred twenty-two of the social services law, upon a finding by the court, pursuant to

paragraph e of subdivision four of such section, that such information is necessary for the

court to determine whether to make or continue an appointment pursuant to this article; (iv) reports for such person or person from the statewide computerized registry of orders

of protection established and maintained pursuant to section two hundred twenty-one-a of

the executive law; and (v) related decisions in court proceedings initiated pursuant to article ten of the family

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court act and related warrants issued under the family court act. 2. The court shall obtain and consider records and reports specified in paragraph one of

this subdivision between the time the judge executes the order to show cause and the

hearing date of the order to show cause if a guardian or guardians are proposed in the

petition or, as soon as a guardian or guardians are proposed by a party to the proceeding

or nominated by the person alleged to be incapacitated, during a proceeding under this

article. 3. Upon consideration of all factors bearing on the best interests of the incapacitated

person including consideration of all relevant factors in section seven hundred fifty-three of

the correction law, the records and reports specified in paragraph one of this subdivision,

and the court evaluator's report thereon, and after notifying counsel involved in the

proceeding, or in the event of a self-represented party notifying such party, the court may

appoint, refuse to appoint or revoke the appointment of any person as guardian pursuant

to this article. 4. Where the court requests a criminal history record for a person pursuant to this section,

the court shall provide the subject of the request with a copy of his or her criminal history

record, if any, a reasonable time before consideration of such record under this subdivision

and inform such person of his or her right to seek correction of any incorrect information

contained in such record pursuant to regulations and procedures established by the

division of criminal justice services. § 3. This act shall take effect on the one hundred eightieth day after it shall have become a law.

225 A.D.2d 1027, 639 N.Y.S.2d 234 Supreme Court, Appellate Division, Fourth Department, New York.

Matter of COMMISSIONER OF CAYUGA COUNTY DEPARTMENT OF SOCIAL SERVICES FOR APPOINTMENT OF A GUARDIAN OF the PERSON AND PROPERTY OF

BESSIE C., Respondent. Richard L.C., Appellant.

(Appeal No. 1.)

March 8, 1996.

Commissioner of county department of social services (DSS) petitioned to be appointed special guardian of allegedly incapacitated person, who resided in nursing home and for whom costs of care were borne by Medicaid, for purpose of exercising her right of election in her deceased husband's estate and to be appointed guardian of person. Person's son cross-petitioned, and the Supreme Court, Cayuga County, Contiguglia, J., found that person was incapacitated and appointed commissioner special guardian for purposes of making election and of person. Son appealed, and the Supreme Court, Appellate Division, held that: (1) commissioner had conflict of interest and could not be appointed guardian; (2) son, who was executor of person's husband's estate, had conflict of interest with respect to being named guardian of person's property but not

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with respect to being named guardian of person; and (3) finding that person had been incapable of granting power of attorney was supported by evidence.

Reversed in part, modified, and remitted.

**235 *1029 Appeal from Order and Judgment of Supreme Court, Cayuga County, Contiguglia, Justice.—Mental Hygiene Law. Douglas P. Bates, Auburn, for Appellant. Frederick R. Westphall, Auburn, for Respondent—Cayuga County DSS. Alan J. Bentkofsky, Auburn, for Respondent—Bessie C.

Before DENMAN, P.J., and LAWTON, WESLEY, DOERR and BALIO, JJ.

*1027 MEMORANDUM:

Bessie C. is an 84–year–old allegedly incapacitated person for whom the appointment of a guardian is sought pursuant to article 81 of the Mental Hygiene Law. She has suffered from severe dementia (Alzheimer's disease) since at least March 1993 and has resided in a Cayuga County nursing home since that time. The cost of her care is borne by Medicaid, for which she was fully qualified at the time of her admission to the nursing home.

**236 Bessie C.'s husband, Earl L.C., died on October 23, 1993, leaving a will in which he made no provision for his wife because she was suffering from Alzheimer's disease. Pursuant to EPTL 5–1.1(a), Bessie C. has the right to an elective share of her husband's estate. Her present condition and her inability to decide for herself whether to exercise that right give rise to the present proceedings. Bessie C.'s elective share of the estate is approximately $50,000.

The Commissioner of the Cayuga County Department of Social Services (DSS) petitioned Supreme Court to be appointed special guardian of Bessie C. for the purpose of exercising her right of election in her husband's estate and thereafter to be appointed her Personal Needs and Property Management guardian. Richard L.C., a son of Bessie C., and executor and beneficiary of the estate of Earl L.C., cross-petitioned, seeking to have himself appointed as guardian for both purposes.

*1028 The court, after conducting hearings, determined that Bessie C. was an incapacitated person, a finding supported by the record, and appointed the Commissioner of DSS special guardian for the purpose of exercising the right of election on Bessie C.'s behalf. The court further appointed the Commissioner guardian of the property and person of Bessie C., with the direction that her net assets shall be used for her future maintenance, support and care. That was error.

In considering the eligibility of a potential guardian, the court is mandated to consider several factors, including “any conflicts of interest between the person proposed as guardian and the incapacitated person” (Mental Hygiene Law § 81.19[d][8] ). The Social Services Law defines as a preferred creditor a public welfare official like the Commissioner of DSS ( see, Social Services

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Law § 2[1], [8] ), who seeks to recoup payments or resources from the recipient of public assistance (Social Services Law § 104 [1]; see, Matter of Lainez, 79 A.D.2d 78, 79–80, 435 N.Y.S.2d 798, affd 55 N.Y.2d 657, 446 N.Y.S.2d 942, 431 N.E.2d 303). Thus, the Commissioner of DSS has a conflict of interest with Bessie C. and should not have been appointed guardian of her property. A neutral, disinterested person should be appointed guardian of the property of the incapacitated person.

For the same reason, it was error to appoint the Commissioner of DSS special guardian of the incapacitated person for the purpose of exercising her right of election. The neutral, disinterested guardian of her property should make application to the court to exercise that function if he or she is so advised.

As both executor and beneficiary of the estate of Earl L.C., Richard L.C. also has a conflict of interest with Bessie C. that bars his appointment as guardian of her property. There appears to be no bar to his appointment as guardian of the person of Bessie C., however, and he should have been so appointed.

The issue whether the guardian may make gifts on behalf of the incapacitated person or transfer her property is not properly before us and should be the subject of further proceedings pursuant to Mental Hygiene Law § 81.21(a)(1); (b).

The court properly revoked the power of attorney executed by Bessie C. in favor of Richard L.C. on May 6, 1994. There is sufficient support in the record to conclude that Bessie C. was at that time incapable of understanding the consequences of signing a legal document.

We modify the order and judgment in appeal No. 1 by reversing that portion that appointed the Commissioner of DSS special guardian of Bessie C. for the purpose of exercising her right of election, and we remit the matter to Supreme Court to appoint a new special guardian. We modify the order and judgment in appeal No. 2 by reversing those portions that appointed the Commissioner of DSS guardian of the person and the property of Bessie C. and granting in part the cross petition of Richard L.C. insofar as he sought appointment as guardian of the person of Bessie C., and we remit the matter to Supreme Court to appoint a new guardian of her property.

Order and judgment unanimously modified on the law and as modified affirmed without **237 costs and matter remitted to Supreme Court for further proceedings.

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IV. Commencement of the Guardianship Proceeding

Protective Services for Adults

Capacity Evaluation Referral Instrument

Section I – Referral Information Agency Referred To: Referral Date: Urgency of this referral: as soon as possible 1 week 2 weeks 30 days Referring Agency: Address: Caseworker: Phone #:

Section II – Client Identification Name: D.O.B. Social Security #: Address: Phone: City State Zip Insurance or Payment Method: I.D. & Group #: Client Contact Person Relationship Phone:

Section III – Client Information (To be completed by local district)

Continue information on reverse if necessary, using the appropriate numbers as reference

1. Reason for this referral: 2. Information that is needed from this evaluation: 3. Client’s current situation and presenting problems:

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Continued on next page

Client’s current situation and presenting problems: (continued) 4. Medications being taken: Medication Dosage Frequency Compliance

5. History: (Drug/alcohol use, health, education, hospitalizations, other services providers, relevant social history.) 6. Available support systems, such as family, programs, agencies:

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Section IV – Evaluation of Capacity and Risk (To be completed by mental health clinician)

YES NO COMMENT/EXPLANATION

1. Does this individual have the capacity to make reasoned decisions?

2. Does this individual have the capacity to understand the consequences of his or her decisions?

3. Do the individual’s choices have a basis in fact and reality?

4. Is this individual able to function independently?

5. Functional deficits:

Orientation

Memory

Intellect

Affect

6. Is this individual able to provide for personal needs independently?

6a. If not able to provide for personal needs independently, able with assistance?

7. Is this individual able to manage finances independently, able with assistance?

7a. If not able to manage finances independently, able with assistance?

8. Is this individual likely to suffer harm because of his or her inability to provide for personal or property management needs?

9. Is this individual at risk of serious harm or death?

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10. Does this individual have the potential for harm to others?

11. Does this individual require 24-hour supervision?

Section V – Evaluation Narrative

Please attach an evaluation narrative, which includes the following: Diagnosis

Please provide a specific diagnosis, as this will impact any possible legal intervention. Recommendations

Please recommend services or interventions, if any, which you determine necessary to meet deficit needs (e.g. medications, Visiting Nurse, home health aide, mental health counseling, homemaker services, 24 hour supervision, representative payee, out of home placement or other necessary services). Prognosis In your opinion, what is the likelihood of this individual’s acceptance and cooperation with recommended treatment/services, and the likelihood of the effectiveness of recommended treatment/services?

This mental health evaluation is submitted by: __________________________________ __________________________ Signature Date __________________________________ ___________________________ Title Phone

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INFORMATION FOR ARTICLE 81 GUARDIANSHIP

Name of AIP: ________________________ Legal Address: _______________________________________________ Current Address, if different from above: _______________________________ Is AIP in a nursing home or hospital: ___yes ___no name: ____________ Date of entry: ___________ Does the AIP have a PCP/ ___ if so who, incl. address) _______________________ Age: ___ Date of Birth: _______________ SSN: ___________ Marital Status: ___________ if married, name of spouse: ___________ Primary language spoken: ________________ Information about persons with whom the AIP resides, relatives, attorney, POA, HCP (attach copies of the POA/HCP if you have them Name: _____________________________ relationship: _______________ Complete address: _______________________ phone #: __________________ Name: _____________________________ relationship: _______________ Complete address: _______________________ phone #: __________________ Name: _____________________________ relationship: _______________ Complete address: _______________________ phone #: __________________ Name: _____________________________ relationship: _______________ Complete address: _______________________ phone #: __________________ Name: _____________________________ relationship: _______________ Complete address: _______________________ phone #: __________________ Name: _____________________________ relationship: _______________ Complete address: _______________________ phone #: __________________ Name: _____________________________ relationship: _______________ Complete address: _______________________ phone #: __________________

FINANCIAL INFORMATION Income: (including gov’t benefits, pensions, dividends, disability, rental income, spousal support, etc.) Source address amount frequency _____________ _______________ ________ ______________ _____________ _______________ ________ ______________ _____________ _______________ ________ ______________ Assets: Address/description: ___________________________________________ Est. value: ________________ Mortgage? ______ amount: __________ Lien(s), amount(s), holder(s): ________________________________ Primary residence? __ yes __no copy of deed attached? ___yes ___no Is there a safe deposit box? __ yes ___no __ unknown

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If there is, location, name address and key holders: __________________ Is there a will? ___ yes ___ no unknown ___ Is there a representative payee? ____ If so, who? ___________________________ Expenses: List all known monthly expenses: Name amount frequency _______________ ______ __________________ _____________________ __________________ ________________________ _____________ List any other outstanding claims, debts or obligations: Creditor address amount _______________ ______ __________________ _____________________ __________________ ________________________ _____________ AIP’s functional level: Please describe below, or by separate writing, from your personal observations, the AIP’s limitations and capacities concerning the following:

(a) Managing activities of daily living

(b) Behavior

(c) Understanding and appreciation of nature and consequences of any inability to

manage activities of daily living

(d) Physical functioning (ability to care for self, assistance required, etc.)

(e) Sensory functioning, including communication

(f) Emotional factors (loneliness, anxiety, etc.)

(g) Mental status (orientation to reality, memory, reasoning ability)

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(h) Helpful resources (relatives, friends, etc.)

Does the AIP have the capacity to make their medical and other personal needs decisions? ____ If they do not, could you say when this lack of capacity began? __________ Does the AIP have the capacity to make their financial decisions? _____ If they do not, could you say when this lack of capacity began? _________________ Will the lack of capacity noted above last indefinitely? ________________ What current risks to the AIP’s health and safety exist that justify the granting of personal needs powers to a guardian? What current risks to the AIP’s financial well- being exist that justify the granting of property management powers to a guardian? Who do you propose as guardian? _________________________ If you are proposing an agency guardian, why are the relatives or friends of the AIP not appropriate to serve as guardian? ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

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Mental Hygiene Law §81.23 Provisional remedies (a) Temporary guardian. 1. At the commencement of the proceeding or at any subsequent stage of the proceeding prior to the appointment of a guardian, the court may, upon showing of danger in the reasonably foreseeable future to the health and well being of the alleged incapacitated person, or danger of waste, misappropriation, or loss of the property of the alleged incapacitated person, appoint a temporary guardian for a period not to extend beyond the date of the issuance of the commission to a guardian appointed pursuant to this article. The powers and duties of the temporary guardian shall be specifically enumerated in the order of appointment and are limited in the same manner as are the powers of a guardian appointed pursuant to this article. Prior to the expiration of the term of appointment, the temporary guardian shall report to the court all actions taken pursuant to the order [FN1] appointment. The court may approve a reasonable compensation for the temporary guardian; however, if the court finds that the temporary guardian has failed to discharge his or her duties satisfactorily in any respect, the court may deny or reduce the amount of compensation or remove the temporary guardian. 2. Notice of the appointment of the temporary guardian shall be given to the person alleged to be incapacitated and to any person having custody or control over the person or property of the person alleged to be incapacitated in such manner as the court may prescribe. 3. The authority and responsibility of a temporary guardian begins upon the issuance of the commission of temporary guardianship. 4. The court may require the temporary guardian to file a bond in accordance with section 81.25 of this article. (b) Injunction and temporary restraining order. 1. The court may, at any time prior to or after the appointment of a guardian or at the time of the appointment of a guardian with or without security, enjoin any person, other than the incapacitated person or the person alleged to be incapacitated from selling, assigning, or from disposing of property or confessing judgment which may become a lien on property or receiving or arranging for another person to receive property from the incapacitated person or the person alleged to be incapacitated or doing or suffering to be done any act or omission endangering the health, safety or welfare of the incapacitated person or the person alleged to be incapacitated when an application under this article seeks such an injunction and it satisfactorily appears from the application, affidavits, and other proofs that a person has done, has suffered to be done or omitted to do, or threatens to do or is about to do an act that endangers the health, safety or welfare of the incapacitated person or the person alleged to be incapacitated or has acquired or is about to acquire any property from the incapacitated person or person alleged to be incapacitated during the time of that person's incapacity or alleged incapacity without adequate consideration. Such order shall be made upon an order to show cause or upon the initiative of the court and may, upon the application for the appointment of a guardian, in the discretion of the court, be continued for ten days after the appointment of a guardian. Notice of any injunction shall be given to any person enjoined, to the incapacitated person or the person alleged to be incapacitated, and to any person having custody or control over the person or property of the

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incapacitated person or the person alleged to be incapacitated in such manner as the court may prescribe. 2. A temporary restraining order may be granted with or without security when an application seeks an injunction under paragraph one of this subdivision and where the court is satisfied that in the absence of such restraining order, the property of the incapacitated person or person alleged to be incapacitated would be dissipated to that person's detriment or that the health, safety or welfare of the incapacitated person or the person alleged to be incapacitated would be endangered. Notice of the temporary restraining order shall be given to any person restrained, to the incapacitated person or the person alleged to be incapacitated, and to any person having custody or control over the person or property of the incapacitated person or person alleged to be incapacitated in such manner as the court may prescribe. Such temporary restraining order shall neither be vacated nor modified except upon notice to the petitioner and to each person required to receive notice of the petition pursuant to paragraph one of subdivision (g) of section 81.07 of this article. 3. When the court is satisfied that the interest of the incapacitated person or person alleged to be incapacitated would be appropriately served, the court may provide in a temporary restraining order that such temporary restraining order shall have the effect of: (i) a restraining notice when served in a manner and upon such persons as the court in its discretion shall deem appropriate; (ii) conferring information subpoena power upon the attorney for the petitioner when the court in its discretion shall deem appropriate. 4. Where such a temporary restraining order provides for a restraining notice a person having custody or control over the person or property of the incapacitated person or the person alleged to be incapacitated is forbidden to make or suffer any sale, assignment, transfer or interference with any property of the incapacitated person or the person alleged to be incapacitated except pursuant to the order of the court. 5. Where such a temporary restraining order provides the petitioner's attorney with information subpoena power, service of a copy of the order together with an information subpoena shall require any person so subpoenaed to provide petitioner's attorney with any information concerning the financial affairs of the incapacitated person or the person alleged to be incapacitated.

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At a Term of the Supreme Court of the State of New York, held in and for the County of Monroe, at the Hall of Justice located at Rochester, New York on the ____day of July, 2012

PRESENT: HON. JUSTICE, SUPREME COURT SUPREME COURT STATE OF NEW YORK COUNTY OF MONROE In the Matter of the Application of the Director of Social Services of the County of Monroe, Petitioner, ORDER TO SHOW CAUSE For the Appointment of a Guardian of the Person and Property of ___________ Index # an Alleged Incapacitated Person. _________________________________________

AN IMPORTANT NOTICE AND STATEMENT OF ALLEGED INCAPACITATED

PERSON’S RIGHTS ARE ATTACHED AND HAVE BECOME A PART OF THIS

ORDER.

IMPORTANT NOTICE

AN APPLICATION HAS BEEN FILED IN COURT BY THE DIRECTOR OF

SOCIAL SERVICES OF MONROE COUNTY WHO BELIEVES YOU MAY BE

UNABLE TO TAKE CARE OF YOUR PERSONAL NEEDS OR FINANCIAL AFFAIRS.

THE PETITIONER IS ASKING THAT SOMEONE BE APPOINTED TO MAKE

DECISIONS FOR YOU. WITH THIS PAPER IS A COPY OF THE APPLICATION TO

THE COURT SHOWING WHY THE PETITIONER BELIEVES YOU MAY BE UNABLE

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TO TAKE CARE OF YOUR PERSONAL NEEDS OR FINANCIAL AFFAIRS. BEFORE

THE COURT MAKES THE APPOINTMENT OF SOMEONE TO MAKE DECISIONS

FOR YOU, THE COURT HOLDS A HEARING AT WHICH YOU ARE ENTITLED TO

BE PRESENT AND TO TELL THE JUDGE IF YOU DO NOT WANT ANYONE

APPOINTED. THIS PAPER TELLS YOU WHEN THE COURT HEARING WILL TAKE

PLACE. IF YOU DO NOT APPEAR IN COURT, YOUR RIGHTS MAY BE

SERIOUSLY AFFECTED.

YOU HAVE THE RIGHT TO DEMAND A TRIAL BY JURY. YOU MUST TELL

THE COURT IF YOU WISH TO HAVE A TRIAL BY JURY. IF YOU DO NOT TELL

THE COURT, THE HEARING WILL BE CONDUCTED WITHOUT A JURY. THE

NAME, AND ADDRESS, AND TELEPHONE NUMBER OF THE CLERK OF THE

COURT ARE:

Mr. ___________, Chief Clerk Room 545 Hall of Justice Rochester, New York 14614 (585) 428-5001

THE COURT MAY APPOINT A COURT EVALUATOR TO EXPLAIN THIS

PROCEEDING TO YOU AND TO INVESTIGATE THE CLAIMS MADE IN THE

APPLICATION. THE COURT MAY GIVE THE COURT EVALUATOR PERMISSION

TO INSPECT YOUR MEDICAL, PSYCHOLOGICAL, OR PSYCHIATRIC RECORDS.

YOU HAVE THE RIGHT TO TELL THE JUDGE IF YOU DO NOT WANT THE COURT

EVALUATOR TO BE GIVEN THAT PERMISSION.

YOU ARE ENTITLED TO HAVE A LAWYER OF YOUR CHOICE REPRESENT

YOU. IF YOU WANT THE COURT TO APPOINT A LAWYER TO HELP YOU AND

REPRESENT YOU, THE COURT WILL APPOINT A LAWYER FOR YOU. YOU WILL

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BE REQUIRED TO PAY THAT LAWYER UNLESS YOU DO NOT HAVE ANY MONEY

TO DO SO.

STATEMENT OF ALLEGED INCAPACITATED PERSON’S RIGHTS

In a proceeding brought pursuant to this article, any party to the proceeding shall

have the right to:

1. present evidence;

2. call witnesses, including expert witnesses;

3. cross-examine witnesses, including witnesses called by the Court;

4. be represented by counsel of his or her choice.

The hearing must be conducted in the presence of the person alleged to be

incapacitated, either at the Courthouse or where the person alleged to be incapacitated

resides, so as to permit the Court to obtain its own impression of the person’s capacity.

If the person alleged to be incapacitated physically cannot come or be brought to the

Courthouse, the hearing must be conducted where the person alleged to be

incapacitated resides unless:

1. the person is not present in the State; or

2. all the information before the Court clearly established that (i) the person

alleged to be incapacitated is completely unable to participate in the hearing, or (ii) no

meaningful participation will result from the person’s presence at the hearing.

If the hearing is conducted without the presence of the person alleged to be

incapacitated and the Court appoints a guardian, the order of appointment shall set forth

the factual basis for conducting the hearing without the presence of the person for

whom the appointment is made.

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If the hearing is conducted in the presence of the person alleged to be

incapacitated and the person is not represented by counsel, the Court shall explain to

that person, on the record, the purpose and possible consequences of the proceeding,

the right to be represented by counsel, and the fact that the Court will appoint an

attorney to represent the person alleged to be incapacitated if the person wishes to be

represented by counsel, and shall inquire of the person whether he or she wishes to

have an attorney appointed. If the person refuses the assistance of counsel, the Court

may nevertheless appoint counsel if the Court is not satisfied that the person is capable

of making an informed decision regarding the appointment of counsel.

If any party to the proceeding on or before the return date designated in the

Order to Show Cause raises issues of fact regarding the need for an appointment under

this article and demands a jury trial of such issues, the Court shall order a trial by jury

thereof. Failure to make such a demand shall be deemed a waiver of the right to trial by

jury.

On reading and filing the annexed Petition of ___________, Commissioner of

Social Services of Monroe County, duly verified the 12th day of July, 2012 from which it

appears that ___________, the alleged incapacitated person herein, is a domiciliary of

the County of Monroe, is unable to provide for his personal needs and/or manage his

property and financial affairs, it is

ORDERED, that ___________, the alleged incapacitated person, and the Court

Evaluator (if one was appointed), show cause before me, or a Justice presiding at a

Special Term of this Court, to be held at the Hall of Justice, Rochester, New York, on

the _____ day of , 2012, at in the fore/after noon of that

day, or as soon thereafter as counsel can be heard, why an Order should not be

entered:

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1. Appointing a guardian for personal needs and property management of

the alleged incapacitated person who shall have the power to: manage the alleged

incapacitated person’s financial affairs and property matters; plan and make decisions

about the medical care and treatment of alleged incapacitated person, her living

arrangements; obtain any and all benefits to which she may be entitled;

2. Granting such other, further or different relief as may be just and proper,

and it is further

____ ORDERED, that at

telephone number (585) , upon filing his/her consent and affidavit of

responsibility be and hereby is appointed Court Evaluator for the above-named alleged

incapacitated person, upon duly qualifying and consenting according to law, complying

with Part 36 of the Rules of the Chief Judge and filing the certificate required by Section

36.1(d) and the Notice of Appointment required by Section 36.3 of the Rules of the

Chief Judge; and it is further

____ ORDERED that ,

with offices at ,

telephone number (585) , upon filing a notice of appearance, be and

hereby is appointed attorney for the above-named incapacitated person to appear for

and represent the alleged incapacitated person in this proceeding, and it is further

ORDERED that a copy of this Order be personally delivered to ___________, the

alleged incapacitated person, on or before and be

served by facsimile (if there be a designated facsimile number for service), or by

personal delivery or by overnight delivery to the office of the Court Evaluator and/or

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attorney for the alleged incapacitated person, on or before

____________________________, 2011, and it is further

ORDERED that Notice of this Proceeding with a copy of the Order to Show

Cause (without supporting papers) be mailed to: ___________, on or before

_________________________, 2012, and it is further

1. ORDERED that ___________as is appointed temporary guardian pending the

hearing, with the following powers:

a. Authority to contract for services and pay bills for ___________pending the

hearing.

b. To have a PRI/Screen completed for ___________to assess his level of care

c. Access to ___________.

d. Authority to remove any firearms on the premise and to turn them over to the

appropriate police agency for safekeeping pending further order.

e. Access to the financial records of ___________, including access to records

from banks or other financial institutions.

Dated: ENTER:

_____________________________

J.S.C.

-35-

STATE OF NEW YORK COUNTY OF MONROE In the Matter of the Application of the Director of Social Services of the County of Monroe, Petitioner, PETITION For the Appointment of a Guardian of the Person and Property of , Index No: an Alleged Incapacitated Person._________________ TO THE SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE The petition of __________ respectfully states and alleges: 1. I am the Commissioner of the Monroe County Division of Social Services. I

make this petition upon information and belief, the source of such information

being the affidavit of __________, which is hereby incorporated herein by

reference and submitted in support of this Petition.

2. _______ is an alleged incapacitated person who is __ years of age (d/o/b

_______). He currently resides in his home with his wife, ______, at

____________________

3. In addition to his wife, ____________ has a daughter, ___________, who

resides at ______________. His grandson, ___________

(___________________), also is in frequent contact. Mr. __________also has

three stepsons from his marriage to _______: ______,

_______________________, _________, __________________________, and

_______, __________________________________________.

4. __________________ is functionally limited in his activities of daily living and is

-36-

unable to manage his financial affairs and many of his personal needs.

5. As further described in the affidavit of ________, Adult Protective is concerned

that Mr. __________ is in need of a guardian to assist him in his personal needs

and property management.

6. Petitioner seeks appointment of a guardian who would have powers with respect

to Mr. __________’s personal needs and property management and obtaining

any and all benefits to which he is entitled, since he is unable to adequately

understand and appreciate the nature and consequences of his inability to

manage his own property. As a result of __________’s functional limitations set

forth above, and in order to assist him in managing his personal and financial

affairs, the following powers and relief are being requested:

a) Powers to manage all phases of his property affairs;

b) Powers to plan and make personal decisions for him, including

health care and treatment decisions; living arrangements;

placement decisions; decisions to obtain benefits to which he is

entitled.

7. The powers being sought are for an indefinite period of time.

8. No claims, debts or obligations of the alleged incapacitated person are

specifically known to petitioner, except for his monthly bills.

9. Mr. __________ receives Social Security benefits in the amount of $__________

per month. It is my understanding that his home is mortgage free, although the

house is apparently deeded in his wife’s name only.

10. Petitioner knows of no health care proxy or power of attorney executed by the

alleged incapacitated person.

11. The name, address and telephone number of your petitioner is as follows:

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__________, 111 Westfall Road, Rochester, New York 14620, (585) 753-6298.

12. The name, address and telephone number of the person proposed as Guardian

is __________, __________.

13. At the present time, the least restrictive alternative is the appointment of a

guardian with sufficient power to plan and make appropriate decisions regarding

placement, health care and treatment, and finances.

14. No previous application has been made to any other Court or Judge for the relief

requested herein.

15. Due to the concerns set forth by __________in her affidavit, it is also my request

that the Court appoint a temporary guardian pending the hearing.

WHEREFORE, your petitioner respectfully requests that:

2. The Court sign the Order to Show Cause submitted with this petition, appoint a

Court Evaluator and/or an attorney for __________.

3. Find that __________lacks the capacity to make his personal needs and property

management decisions and appoint a guardian with the power to make those

decisions.

4. The Court appoint __________as temporary guardian, with the following powers:

f. Authority to contract for services and pay bills for __________pending the

hearing.

g. To have a PRI/screen completed for __________to assess his care needs

h. Access to __________.

i. Authority to remove any firearms on the premise and to turn them over to the

appropriate police agency for safekeeping pending further order.

j. Access to the financial records of __________, including access to records

-38-

from banks or other financial institutions.

5. Such other and further relief as the Court deems just.

DATED: __________, as Commissioner of the Monroe County Division of Social Services _____________________________ __________ Attorney for Petitioner Room 307, County Office Bldg. Rochester, New York 14614 (585)753-1478

-39-

VERIFICATION STATE OF NEW YORK) COUNTY OF MONROE) SS: __________, being duly sworn, deposes and says:

1. I am the Commissioner of the Monroe County Division of Social Services.

2. That I am fully familiar with the facts of this proceeding, and that I make

this verification pursuant to CPLR Section 3020(d)(2).

3. That I have read the foregoing Verified Petition and know the contents

thereof and that the same is true to my own knowledge, except as to those matters

stated to be alleged on information and belief and as to those matters I believe them to

be true.

4. That the source of deponent’s knowledge and information are the records

of the Monroe County Division of Social Services, and information furnished your

deponent by persons having knowledge of the facts of this case.

__________ Sworn to before me this Day of July, 2012 Notary Public

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SUPREME COURT STATE OF NEW YORK COUNTY OF MONROE In the Matter of the Application of the Director of Social Services of the County of Monroe, Petitioner, AFFIDAVIT For the Appointment of a Guardian of the Person and Property of __________, Index No: an Alleged Incapacitated Person._________________ STATE OF NEW YORK) COUNTY OF MONROE) SS: ___________, being duly sworn, deposes and states: 1. I am a Caseworker for the Adult Protective Services Unit of the Monroe County

Division of Social Services (MCDSS).

2. I am the assigned Adult Protective Services (APS) caseworker for

___________.___________is an alleged incapacitated person who is ___________

years of age (d/o/b ___________). He currently resides in his home with his wife,

___________, at ___________.In addition to his wife, ___________has a daughter,

___________, who resides at ___________. His grandson, ___________

(___________), also is in frequent contact. Mr. Cruickshank also has three

stepsons from his marriage to Sheena: ___________, ___________,

___________, ___________, and ___________, ___________.

3. Mr. ___________ receives approximately $___________per month from Social

Security.

4. Adult Protective received a referral on April 4, 2012. As part of the investigation, a

capacity evaluation was done by ___________on May 24, 2012. A copy of that

evaluation is attached. It was ___________’s opinion that Mr. ___________ no

-41-

longer has the capacity to make his personal needs and property management

decisions. Both Mr. ___________ and his wife have family members who have

offered assistance, but that assistance has been refused. Mr. ___________ even

turned down a medication dispenser that I offered so that he could take his

medication regularly. I am also concerned in that while it was my understanding

that all firearms had been removed from the home, it has come to my attention that

there may be more on the premises

5. .Due to my observations, and the information that I have received from other

sources, it is my request that the Court appoint a guardian for ___________for his

personal needs and property management decisions. It is my request that the Court

appoint ___________, ______________________, (585) ___________, as

guardian for both personal needs and property management.

6. I also request that ___________be appointed as temporary guardian, with the

following powers:

a. To contract for services and pay bills for ___________pending the

hearing.

b. To have a PRI/screen completed for ___________to assess his level of

care.

c. To have access to ___________.

d. Authority to remove any firearms on the premise and to turn them over to

the appropriate police agency for safekeeping pending further order.

e. Access to the financial records of ___________, including access to

records from banks or other financial institutions.

__________________________Sworn

to before me this ______ day of July, 2012

-42-

Notary Public

43

SUPREME COURT STATE OF NEW YORK COUNTY OF MONROE In the Matter of the Application of the Director of Social Services of the County of Monroe, Petitioner, For the Appointment of a Guardian of the Person and Property of Index # an Alleged Incapacitated Person. _________________________________________

NOTICE OF GUARDIANSHIP PROCEDING PURSUANT TO MENTAL

HYGIENE LAW §81.07(f)

1. The name of the alleged incapacitated person to whom the guardianship

proceeding relates is _______________. His address is

______________.

2. The name and address of the Petitioner is Kelly A. Reed, as the Director

of Social Services of the County of Monroe, 111 Westfall Road,

Rochester, NY 14620.

3. The names of all persons to be given notice of the proceeding are:

4. The time when and the place where the order to show cause shall be

heard is the Hall of Justice, 99 Exchange Blvd., Rochester, New York

14614, on ______ at _______ before the Hon. ______________

5. The object of the proceeding and the relief sought in the petition is to have

44

a guardian of the person and property appointed for the Respondent and

the powers sought are those described in New York Mental Hygiene Law

Sections 81.21 and 81.22.

6. The name, address and telephone number of the Petitioner’s attorney is:

Monroe County Law Department

Mark E. Maves, Senior Deputy County Attorney Room 307

39 West Main Street Rochester, New York 14614

585-753-1330

V. Pre- Hearing Procedure

Mental Hygiene Law §81.10 Counsel (a) Any person for whom relief under this article is sought shall have the right to choose and engage legal counsel of the person's choice. In such event, any attorney appointed pursuant to this section shall continue his or her duties until the court has determined that retained counsel has been chosen freely and independently by the alleged incapacitated person.

45

(b) If the person alleged to be incapacitated is not represented by counsel at the time of the issuance of the order to show cause, the court evaluator shall assist the court in accordance with subdivision (c) of section 81.09 of this article in determining whether counsel should be appointed. (c) The court shall appoint counsel in any of the following circumstances unless the court is satisfied that the alleged incapacitated person is represented by counsel of his or her own choosing: 1. the person alleged to be incapacitated requests counsel; 2. the person alleged to be incapacitated wishes to contest the petition; 3. the person alleged to be incapacitated does not consent to the authority requested in the petition to move the person alleged to be incapacitated from where that person presently resides to a nursing home or other residential facility as those terms are defined in section two thousand eight hundred one of the public health law, or other similar facility; 4. if the petition alleges that the person is in need of major medical or dental treatment and the person alleged to be incapacitated does not consent; 5. the petition requests the appointment of a temporary guardian pursuant to section 81.23 of this article; 6. the court determines that a possible conflict may exist between the court evaluator's role and the advocacy needs of the person alleged to be incapacitated; 7. if at any time the court determines that appointment of counsel would be helpful to the resolution of the matter. (d) If the person refuses the assistance of counsel, the court may, nevertheless, appoint counsel if the court is not satisfied that the person is capable of making an informed decision regarding the appointment of counsel. (e) The court may appoint as counsel the mental hygiene legal service in the judicial department where the residence is located. (f) The court shall determine the reasonable compensation for the mental hygiene legal service or any attorney appointed pursuant to this section. The person alleged to be incapacitated shall be liable for such compensation unless the court is satisfied that the person is indigent. If the petition is dismissed, the court may in its discretion direct that petitioner pay such compensation for the person alleged to be incapacitated. When the person alleged to be incapacitated dies before the determination is made in the proceeding, the court may award reasonable compensation to the mental hygiene legal service or any attorney appointed pursuant to this section, payable by the petitioner or the estate of the decedent or by both in such proportions as the court may deem just.

46

(g) If the court appoints counsel under this section, the court may dispense with the appointment of a court evaluator or may vacate or suspend the appointment of a previously appointed court evaluator. Mental Hygiene Law §81.09 Appointment of court evaluator (a) At the time of the issuance of the order to show cause, the court shall appoint a court evaluator. (b) 1. the court may appoint as court evaluator any person including, but not limited to, the mental hygiene legal service in the judicial department where the person resides, a not-for-profit corporation, an attorney-at-law, physician, psychologist, accountant, social worker, or nurse, with knowledge of property management, personal care skills, the problems associated with disabilities, and the private and public resources available for the type of limitations the person is alleged to have. The name of the court evaluator shall be drawn from a list maintained by the office of court administration; 2. if the court appoints the mental hygiene legal service as the evaluator and upon investigation in accordance with section 81.10 of this article it appears to the mental hygiene legal service that the mental hygiene legal service represents the person alleged to be incapacitated as counsel, or that counsel should otherwise be appointed in accordance with section 81.10 of this article for the person alleged to be incapacitated, the mental hygiene legal service shall so report to the court. The mental hygiene legal service shall be relieved of its appointment as court evaluator whenever the mental hygiene legal service represents as counsel, or is assigned to represent as counsel, the person alleged to be incapacitated. (c) The duties of the court evaluator shall include the following: 1. meeting, interviewing, and consulting with the person alleged to be incapacitated regarding the proceeding. 2. determining whether the alleged incapacitated person understands English or only another language, and explaining to the person alleged to be incapacitated, in a manner which the person can reasonably be expected to understand, the nature and possible consequences of the proceeding, the general powers and duties of a guardian, available resources, and the rights to which the person is entitled, including the right to counsel. 3. determining whether the person alleged to be incapacitated wishes legal counsel of his or her own choice to be appointed and otherwise evaluating whether legal counsel should be appointed in accordance with section 81.10 of this article. 4. interviewing the petitioner, or, if the petitioner is a facility or government agency, a person within the facility or agency fully familiar with the person's condition, affairs and situation. 5. investigating and making a written report and recommendations to the court; the report and recommendations shall include the court evaluator's personal observations as to the

47

person alleged to be incapacitated and his or her condition, affairs and situation, as well as information in response to the following questions: (i) does the person alleged to be incapacitated agree to the appointment of the proposed guardian and to the powers proposed for the guardian; (ii) does the person wish legal counsel of his or her own choice to be appointed or is the appointment of counsel in accordance with section 81.10 of this article otherwise appropriate; (iii) can the person alleged to be incapacitated come to the courthouse for the hearing; (iv) if the person alleged to be incapacitated cannot come to the courthouse, is the person completely unable to participate in the hearing; (v) if the person alleged to be incapacitated cannot come to the courthouse, would any meaningful participation result from the person's presence at the hearing; (vi) are available resources sufficient and reliable to provide for personal needs or property management without the appointment of a guardian; (vii) how is the person alleged to be incapacitated functioning with respect to the activities of daily living and what is the prognosis and reversibility of any physical and mental disabilities, alcoholism or substance dependence? The response to this question shall be based on the evaluator's own assessment of the person alleged to be incapacitated to the extent possible, and where necessary, on the examination of assessments by third parties, including records of medical, psychological and/or psychiatric examinations obtained pursuant to subdivision (d) of this section. As part of this review, the court evaluator shall consider the diagnostic and assessment procedures used to determine the prognosis and reversibility of any disability and the necessity, efficacy, and dose of each prescribed medication; (viii) what is the person's understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living; (ix) what is the approximate value and nature of the financial resources of the person alleged to be incapacitated; (x) what are the person's preferences, wishes, and values with regard to managing the activities of daily living; (xi) has the person alleged to be incapacitated made any appointment or delegation pursuant to section 5-1501, 5-1505, or 5-1506 of the general obligations law, section two thousand nine hundred sixty-five or two thousand nine hundred eighty-one of the public health law, or a living will; (xii) what would be the least restrictive form of intervention consistent with the person's functional level and the powers proposed for the guardian;

48

(xiii) what assistance is necessary for those who are financially dependent upon the person alleged to be incapacitated; (xiv) is the choice of proposed guardian appropriate, including a guardian nominated by the allegedly incapacitated person pursuant to section 81.17 or subdivision (c) of section 81.19 of this article; and what steps has the proposed guardian taken or does the proposed guardian intend to take to identify and meet the current and emerging needs of the person alleged to be incapacitated unless that information has been provided to the court by the local department of social services when the proposed guardian is a community guardian program operating pursuant to the provisions of title three of article nine-B of the social services law; (xv) what potential conflicts of interest, if any, exist between or among family members and/or other interested parties regarding the proposed guardian or the proposed relief; (xvi) what potential conflicts of interest, if any, exist involving the person alleged to be incapacitated, the petitioner, and the proposed guardian; and (xvii) are there any additional persons who should be given notice and an opportunity to be heard. In addition, the report and recommendations shall include any information required under subdivision (e) of this section, and any additional information required by the court. 6. interviewing or consulting with professionals having specialized knowledge in the area of the person's alleged incapacity including but not limited to developmental disabilities, alcohol and substance abuse, and geriatrics. 7. retaining an independent medical expert where the court finds it is appropriate, the cost of which is to be charged to the estate of the allegedly incapacitated person unless the person is indigent. 8. conducting any other investigations or making recommendations with respect to other subjects as the court deems appropriate. 9. attending all court proceedings and conferences. (d) The court evaluator may apply to the court for permission to inspect records of medical, psychological and/or psychiatric examinations of the person alleged to be incapacitated; except as otherwise provided by federal or state law, if the court determines that such records are likely to contain information which will assist the court evaluator in completing his or her report to the court, the court may order the disclosure of such records to the court evaluator, notwithstanding the physician/patient privilege, the psychologist/patient privilege, or the social worker/client privilege as set forth in sections four thousand five hundred four, four thousand five hundred seven, and four thousand five hundred eight of the civil practice law and rules; if the court orders that such records be disclosed to the court evaluator, the court may, upon the court's own motion, at the request of the court evaluator, or upon the application of counsel for the person alleged to

49

be incapacitated, or the petitioner, also direct such further disclosure of such records as the court deems proper. (e) The court evaluator shall have the authority to take the steps necessary to preserve the property of the person alleged to be incapacitated pending the hearing in the event the property is in danger of waste, misappropriation, or loss; if the court evaluator exercises authority under this subdivision, the court evaluator shall immediately advise the court of the actions taken and include in his or her report to the court an explanation of the actions the court evaluator has taken and the reasons for such actions. (f) When judgment grants a petition, the court may award a reasonable compensation to a court evaluator, including the mental hygiene legal service, payable by the estate of the allegedly incapacitated person. When a judgment denies or dismisses a petition, the court may award a reasonable allowance to a court evaluator, including the mental hygiene legal service, payable by the petitioner or by the person alleged to be incapacitated, or both in such proportions as the court may deem just. When the person alleged to be incapacitated dies before the determination is made in the proceeding, the court may award a reasonable allowance to a court evaluator, payable by the petitioner or by the estate of the decedent, or by both in such proportions as the court may deem just.

44 A.D.3d 110, 840 N.Y.S.2d 516, 2007 N.Y. Slip Op. 06089

Supreme Court, Appellate Division, Fourth Department, New York. In the Matter of the Application of Rosanna E. HECKL, Olivia J. Corey, Christopher M.

Corey and Thomas J. Corey, Petitioners–Respondents, For the Appointment of a Personal Needs and Property Management Guardian of Aida

C., an Alleged Incapacitated Person, Appellant. Permclip Products Corp., Intervenor–Respondent. (Appeal No. 3.)

July 18, 2007. Background: Petitioners commenced proceeding seeking a determination that their mother was an incapacitated person, and the appointment of a guardian for her person and property. The Supreme Court, Erie County, Penny M. Wolfgang, J., denied alleged incapacitated person's motion to vacate an order appointing a court evaluator, directed alleged incapacitated person to meet with court evaluator within 10 days of entry of the order, and provided that alleged incapacitated person would be held in contempt in the event she did not meet with court evaluator within that time period. Alleged incapacitated person appealed. Holdings: The Supreme Court, Appellate Division, Scudder, P.J., held that: (1) court lacked statutory authority to vacate appointment of court evaluator; (2) as a matter of first impression, right against self-incrimination did not attach to alleged incapacitated person's affected liberty interest, as would justify her refusal to provide information to court evaluator that may be used against her in guardianship proceeding;

50

(3) alleged incapacitated person had no statutory obligation to meet with and speak with court evaluator; (4) order punishing alleged incapacitated person for civil contempt based on her refusal to meet with court evaluator was not statutorily authorized; and (5) even if alleged incapacitated person were a party in the proceeding, for purposes of statute permitting a court to punish a party for the disobedience of a lawful mandate, she did not disobey mandate. Affirmed as modified. **518 Phillips Lytle LLP, Buffalo (Alan J. Bozer of Counsel), for Appellant. Lippes Mathias Wexler Friedman LLP, Buffalo (Thomas J. Gaffney of Counsel), for Petitioners–Respondents. PRESENT: SCUDDER, P.J., CENTRA, LUNN, FAHEY, AND PERADOTTO, JJ. Opinion by SCUDDER, P.J.: *112 Petitioners commenced this proceeding pursuant to Mental Hygiene Law article 81 seeking, inter alia, a determination that their mother is an incapacitated person and the appointment of a guardian for her person and property. By its order entered September 20, 2006 granting the order to show cause, Supreme Court appointed a court evaluator pursuant to Mental Hygiene Law § 81.09, and in appeal No. 1 petitioners' mother, the alleged incapacitated person (AIP), appeals from the order appointing the Court Evaluator. The AIP thereafter answered the petition, and she subsequently moved for an order vacating the appointment of the Court Evaluator on the ground that her liberty interest is at stake and she therefore cannot be compelled to speak to the Court Evaluator without violating her rights pursuant to the Fifth Amendment of the United States Constitution and article 1, § 6, of the New York Constitution. By its order in appeal No. 2 entered November 22, 2006, the court, inter alia, denied that motion and ordered that the Court Evaluator meet “immediately” with the AIP. Based upon the AIP's refusal to meet with the Court Evaluator, petitioners thereafter moved in December 2006 for an order finding the AIP in contempt pursuant to Judiciary Law § 753 for, inter alia, impeding the court's directive that the Court Evaluator meet with her and “punishing [the AIP] by fine or imprisonment or both.” By its order in appeal No. 3 entered January 24, 2007, the court, inter alia, directed the AIP to meet with the Court Evaluator within 10 days of the entry of the order or “the [c]ourt will hold the AIP in contempt.” We note at the outset that the issue whether the constitutional rights of the AIP are implicated is an issue of first impression at the appellate level in this state. For the reasons that follow, we conclude that the AIP's constitutional rights against self-incrimination do not attach herein and that the orders in appeal Nos. 1 and 2 should be affirmed. With respect to the order in appeal No. 3, however, we conclude that the court erred in directing the AIP to meet with the Court Evaluator within 10 days of the entry of the order in that appeal and in providing that the AIP would otherwise be held in contempt. We therefore conclude that the order in appeal No. 3 should be modified by vacating those provisions and by dismissing**519 the motion to punish the AIP for civil contempt.

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By way of background, the AIP is the 80–year–old mother of petitioners and the president and sole shareholder of intervenor-respondent, Permclip Products Corp. (Permclip). Petitioners are not employees or directors of Permclip, although petitioner *113 Olivia J. Corey managed Permclip after her father's death in 2002 until June 2005. Petitioners allege, inter alia, that their mother has been diagnosed with dementia and that she is not able to care for her personal needs or to manage Permclip or her personal financial affairs. They further allege that their mother is influenced to her detriment by her long-time personal assistant. It is undisputed that the AIP and petitioners are estranged, but the reasons for the estrangement offered by petitioners and the AIP do not coincide. Petitioners contend that they seek to protect their mother and the company established by their father, while the AIP contends that petitioners seek only to benefit themselves by controlling her company and her fortune. The Appointment of a Court Evaluator is Mandated by Statute The AIP concedes that Mental Hygiene Law § 81.09(a) requires the court to appoint a court evaluator “[a]t the time of the issuance of the order to show cause,” but she nevertheless contends that the court erred in refusing to vacate the appointment. According to the AIP, she is represented by counsel of her own choosing and the court therefore will have all the information required to determine the merits of the petition through the adversarial process. The AIP further contends that, because section 81.10(g) permits the court to vacate or suspend the appointment of a previously appointed court evaluator if the court appoints counsel, the court should be permitted to do so when the AIP has retained counsel. The AIP contends that her constitutional right to be protected from acting as a witness against herself will be violated in the event that she meets with the Court Evaluator because information obtained by the Court Evaluator may be admitted in evidence at the hearing on the petition ( see § 81.12[b] ). Article 81 of the Mental Hygiene Law was enacted to replace articles 77 and 78, which governed conservatorship and committee proceedings, respectively ( see Bailly, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 34A, Mental Hygiene Law § 81.01, at 7). The statutory scheme is designed to provide a flexible system that is tailored to meet the personal and/or property management needs of a person requiring some form of assistance ( see § 81.01; see generally Bailly, Practice Commentaries, at 7). The Legislature determined that the needs of an AIP would be best met by assuring that the AIP has legal representation to advocate for the AIP if necessary *114 ( see § 81.10), but the Legislature also determined that the appointment of a court evaluator would be beneficial in “provid[ing] an independent assessment of the [AIP]” (Law Revision Commn Comments, McKinney's Cons. Laws of N.Y., Book 34A, Mental Hygiene Law § 81.10, at 130). The Law Revision Commission recognized that “[t]he differentiation between the two roles reflects the two competing views of guardianship proceedings ... Given the serious issues at stake in a guardianship proceeding, there is, on the one hand, strong support for ... the adversarial approach to guardianship proceedings. On the other hand, there is recognition that an objective ‘best interests' assessment of the [AIP], rather than the adversarial approach, may better serve the needs of [the AIP]” ( id.). **520 Here, the AIP views the Court Evaluator as an adversary and thus part of the adversarial process, and not as an “independent investigator” whose function is to aid the court in determining, inter alia, the capacity of the AIP and his or her need for a guardian or guardians (Law Revision Commn Comments, Mental Hygiene Law § 81.09, at 110).

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Although we cannot say that the position of the AIP is unreasonable, it simply does not comport with the statutory scheme. We thus conclude that the court is without statutory authority to dispense with the Court Evaluator herein, despite its authority to do so if counsel had been appointed ( see § 81.10[g] ). The legislative intent is clear: “The appointment of a court evaluator is mandatory in every case, with one exception. The court may dispense with or suspend the appointment of the court evaluator only when the court appoints counsel under section 81.10” (Law Revision Commn Comments, § 81.09, at 110). Because “some estates may be financially overburdened by the expenses of both the court evaluator and counsel,” the court is permitted to dispense with the court evaluator if counsel is appointed (Law Revision Commn Comments, § 81.10, at 130) and, in the event that an AIP is indigent, counsel shall be compensated pursuant to article 18–B of the County Law ( see Matter of St. Luke's–Roosevelt Hosp. Ctr. [Marie H.–City of New York], 89 N.Y.2d 889, 892, 653 N.Y.S.2d 257, 675 N.E.2d 1209). Inasmuch as the statutory exception does not apply to the AIP, the court properly refused to vacate its appointment of the Court Evaluator. *115 The Impact on the AIP's Constitutionally Protected Rights The AIP contends that she may assert her right against self-incrimination by refusing to provide information to the Court Evaluator that may be used against her in the guardianship proceeding. We agree with the AIP that, because a guardian may be granted the authority to make decisions affecting her most basic rights, including whether she will reside in her own home or be placed in a facility, “her constitutionally protected liberty interests [a]re at stake” in this proceeding ( id. at 891, 653 N.Y.S.2d 257, 675 N.E.2d 1209). We nevertheless conclude that the right against self-incrimination is not implicated herein. The right against self-incrimination applies to protect a person from “inculpatory” statements, i.e., statements that the person “ ‘may reasonably apprehend could be used in a criminal prosecution’ ” ( Matter of Gault, 387 U.S. 1, 47–48, 87 S.Ct. 1428, 18 L.Ed.2d 527; see U.S. Const. Fifth Amend.; N.Y. Const., art. I, § 6; CPLR 4501; Matter of Ashley M., 256 A.D.2d 825, 826, 683 N.Y.S.2d 304), and thus statements made to a court evaluator are not subject to the constitutional protection against self-incrimination. Furthermore, despite the potential loss of liberty, “the right against self [-]incrimination does not attach in all instances wherein a liberty interest is affected” ( Allen v. Illinois, 478 U.S. 364, 372, 106 S.Ct. 2988, 92 L.Ed.2d 296). The Supreme Court in Allen differentiated between confinement for the purpose of punishment and confinement for the purpose of treatment ( see generally id. at 373–374, 106 S.Ct. 2988). Although the AIP obviously may view the issue differently, the view of the Legislature and the courts is that any potential confinement would be for the purpose of care and treatment ( see generally id.), rather than for the purpose of punishment ( cf. Gault, 387 U.S. at 50, 87 S.Ct. 1428). We therefore conclude that the right against self-incrimination does not attach to the AIP's affected liberty interest ( cf. Matter of A.G., 6 Misc.3d 447, 452–453, 785 N.Y.S.2d 313). **521We nevertheless conclude that the court is without power to compel the AIP to meet with the Court Evaluator. It is clear that the statutory intent of article 81 of the Mental Hygiene Law is to meet the needs, if any, of the AIP ( see generally § 81.01). In furtherance of that statutory intent, the Legislature has imposed upon the Court Evaluator a myriad of duties and responsibilities ( see § 81.09[c] ), including the duty to meet with

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the AIP ( see § 81.09[c][1] ). In requiring a court evaluator to provide his or her “personal observations as to the [AIP]” in his or her report to the court (§ 81.09[c][5] ), the Legislature is ensuring that the court evaluator's report is not *116 “ ‘a rubber stamp’ of how others view the [AIP]” (Law Revision Commn Comments, § 81.09, at 110). There is, however, no concomitant statutory duty imposed upon the AIP to meet with the Court Evaluator. Rather, the AIP herein has chosen not to avail herself of the statutory protection of providing the court with the independent report of the Court Evaluator regarding her “personal wishes, preferences and desires” (§ 81.01). Although we recognize that the Court Evaluator is thus hampered in the performance of his statutory duties, we conclude that the AIP cannot be compelled to meet with and speak with the Court Evaluator, and we therefore conclude that the order in appeal No. 3 should be modified by vacating that part directing the AIP to do so. Petitioners Failed to Establish their Entitlement to an Order to Punish the AIP for Civil Contempt As previously noted herein, petitioners by order to show cause sought to hold the AIP in civil contempt pursuant to Judiciary Law § 753(A)(3) on the ground that she had, inter alia, impeded the court's directive that the Court Evaluator meet with her “immediately,” and they sought a punishment of the AIP by fine or imprisonment or both. We cannot ignore the incongruity of their request to punish their mother “by fine or imprisonment or both” in the very same proceeding in which they allege that she is physically and mentally incapable of caring for herself. Nevertheless, even in view of that incongruity, we conclude that petitioners failed to sustain their burden of establishing that there was any disobedience of a lawful and unequivocal mandate of the court by a party to the proceeding ( see § 753[A][3]; McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132). We note that, although the AIP is the subject of the proceeding, she is not a respondent and therefore is not a party to the proceeding ( see generally CPLR 105[b] ). Thus, the provisions of Judiciary Law § 753(A)(3) permitting the court to punish a party for the disobedience of a lawful mandate do not apply to the AIP. In any event, even assuming, arguendo, that the AIP is a party to the proceeding, we conclude that the lawful mandate of the court ordering that the Court Evaluator meet with the AIP immediately was directed at the Court Evaluator, not the AIP. Furthermore, “[c]ivil contempt has as its aim the vindication of a private party to litigation and any sanction imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with the benefits of the mandate” *117 ( McCain, 84 N.Y.2d at 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132). In contending that the AIP has impeded the function of the Court Evaluator, who is not a party to the proceeding ( see generally CPLR 105[b]; Mental Hygiene Law § 81.09), petitioners have thus failed to allege, much less establish, that they have sustained an injury requiring vindication ( see McCain, 84 N.Y.2d at 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132). **522 We therefore conclude that the order in appeal No. 3 should be further modified by vacating that part holding the AIP in contempt in the event she does not meet with the Court Evaluator and by dismissing the motion to punish the AIP for civil contempt. Conclusion Accordingly, we conclude that the orders in appeal Nos. 1 and 2 should be affirmed. We further conclude that the order in appeal No. 3 should be modified by vacating those parts directing the AIP to meet with the Court Evaluator and providing that the AIP would

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otherwise be held in contempt and by dismissing the motion to punish the AIP for civil contempt. It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the second and third ordering paragraphs and by dismissing the motion to punish for civil contempt and as modified the order is affirmed without costs.

VI. The Hearing

Mental Hygiene Law §81.11 Hearing (a) A determination that the appointment of a guardian is necessary for a person alleged to be incapacitated shall be made only after a hearing. (b) In a proceeding brought pursuant to this article any party to the proceeding shall have the right to: 1. present evidence; 2. call witnesses, including expert witnesses; 3. cross examine witnesses, including witnesses called by the court; 4. be represented by counsel of his or her choice. (c) The hearing must be conducted in the presence of the person alleged to be incapacitated, either at the courthouse or where the person alleged to be incapacitated resides, so as to permit the court to obtain its own impression of the person's capacity. If the person alleged to be incapacitated physically cannot come or be brought to the courthouse, the hearing must be conducted where the person alleged to be incapacitated resides unless: 1. the person is not present in the state; or 2. all the information before the court clearly establishes that (i) the person alleged to be incapacitated is completely unable to participate in the hearing or (ii) no meaningful participation will result from the person's presence at the hearing. (d) If the hearing is conducted without the presence of the person alleged to be incapacitated and the court appoints a guardian, the order of appointment shall set forth the factual basis for conducting the hearing without the presence of the person for whom the appointment is made.

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(e) If the hearing is conducted in the presence of the person alleged to be incapacitated and the person is not represented by counsel, the court shall explain to that person, on the record, the purpose and possible consequences of the proceeding, the right to be represented by counsel and the fact that the court will appoint an attorney to represent the person alleged to be incapacitated if the person wishes to be represented by counsel, and shall inquire of the person whether he or she wishes to have an attorney appointed. If the person refuses the assistance of counsel, the court may nevertheless appoint counsel if the court is not satisfied that the person is capable of making an informed decision regarding the appointment of counsel. (f) If on or before the return date designated in the order to show cause the alleged incapacitated person or counsel for the alleged incapacitated person raises issues of fact regarding the need for an appointment under this article and demands a jury trial of such issues, the court shall order a trial by jury thereof. Failure to make such a demand shall be deemed a waiver of the right to trial by jury. Mental Hygiene Law § 81.12 Burden and quantum of proof (a) A determination that a person is incapacitated under the provisions of this article must be based on clear and convincing evidence. The burden of proof shall be on the petitioner. (b) The court may, for good cause shown, waive the rules of evidence. The report of the court evaluator may be admitted in evidence if the court evaluator testifies and is subject to cross examination; provided, however, that if the court determines that information contained in the report is, in the particular circumstance of the case, not sufficiently reliable, the court shall require that the person who provided the information testify and be subject to cross examination.

296 A.D.2d 845, 744 N.Y.S.2d 920, 2002 N.Y. Slip Op. 05662

Supreme Court, Appellate Division,

Fourth Department, New York. Matter of Application of Isabelle T. FLIGHT, Petitioner–Appellant,

For the Appointment of A Guardian for Edward D. Flight, An Alleged Incapacitated Person, Respondent.

Monroe Community Hospital, Mental Hygiene Legal Service, and Robert Flight, Court Appointed Guardian for Edward D. Flight, Respondents–Respondents.

July 3, 2002.

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Appeal from an order and judgment (one document) of Supreme Court, Monroe County (Galloway, J.), entered December 18, 2001, which appointed Robert Flight as guardian for Edward D. Flight. Woods Oviatt Gilman LLP, Rochester (René H. Reixach of counsel), for petitioner–appellant. Charles S. Turner, County Attorney, Rochester (Mark E. Maves of counsel), for respondent–respondent Monroe Community Hospital. *921 Mental Hygiene Legal Service, Rochester (Kevin C. O'Connell of counsel), respondent–respondent Pro Se. Davidson, Fink, Cook, Kelly & Galbraith, LLP, Rochester (Eugene T. Clifford of counsel), for respondent–respondent Robert Flight, Court Appointed Guardian for Edward D. Flight.

Petitioner commenced this proceeding under article 81 of the Mental Hygiene Law seeking appointment of a guardian to provide for the personal needs and property management of respondent. Supreme Court properly determined under the circumstances that petitioner was not entitled to discontinue the proceeding pursuant to CPLR 3217(a)(1) ( see Matter of Spadafora, 54 Misc.2d 123, 125, 281 N.Y.S.2d 923, affd. 29 A.D.2d 742, 288 N.Y.S.2d 588; see generally 7 Weinstein–Korn–Miller, N.Y. Civ Prac ¶ 3217.05). The court erred, however, in appointing a guardian for respondent without conducting a hearing ( see Mental Hygiene Law § 81.11[a]; Matter of Hoffman, 288 A.D.2d 892, 893, 732 N.Y.S.2d 394; Matter of Ruth TT., 267 A.D.2d 553, 554–555, 699 N.Y.S.2d 195). We therefore reverse the order and judgment and remit the matter to Supreme Court, Monroe County, to conduct a hearing on the petition and make the requisite findings ( see § 81.15), including findings with respect to the choice of guardian ( see Matter of Pasner, 215 A.D.2d 763, 627 N.Y.S.2d 966). We appoint Robert Flight as respondent's guardian pending the outcome of the hearing ( see Hoffman, 288 A.D.2d at 893, 732 N.Y.S.2d 394).

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, Robert Flight is appointed as respondent's guardian pending the outcome of the hearing and the matter is remitted to Supreme Court, Monroe County, for further proceedings.

8 A.D.3d 977, 778 N.Y.S.2d 815, 2004 N.Y. Slip Op. 04891

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Application of Isabelle T. FLIGHT, Petitioner–Appellant, For the Appointment of a Guardian for Edward D. Flight, an Alleged Incapacitated

Person, Respondent. Monroe Community Hospital, Mental Hygiene Legal Service, and Robert Flight, Court

Appointed Guardian for Edward D. Flight, Respondents–Respondents.

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June 14, 2004.

Background: Appeal was taken from order of the Supreme Court, Monroe County, Harold L. Galloway, J., which, inter alia, appointed a guardian for an incapacitated person. Holding: The Supreme Court, Appellate Division, held that incapacitated person's brother was a suitable guardian and his appointment was in the best interest of the incapacitated person.

Affirmed. *816 Isabelle T. Flight, Petitioner–Appellant Pro Se. Daniel M. DeLaus, County Attorney, Rochester (Mark E. Maves of Counsel), for Respondent–Respondent Monroe Community Hospital. Davidson, Fink, Cook, Kelly & Galbraith, LLP, Rochester (Eugene T. Clifford of Counsel), for Respondent–Respondent Robert Flight, Court Appointed Guardian for Edward D. Flight.

PRESENT: GREEN, J.P., PINE, KEHOE, GORSKI, AND HAYES, JJ. MEMORANDUM:

Supreme Court properly exercised its discretion in appointing respondent Robert Flight as guardian for the personal and financial needs of his brother, Edward D. Flight, an incapacitated person. We reject the contention of petitioner that the court erred in failing to appoint one or more of the non-family members she had proposed as guardian ( see generally Matter of Chase, 264 A.D.2d 330, 331, 694 N.Y.S.2d 363). The record establishes that Robert is a suitable guardian and that his appointment is in the best interests of the incapacitated person ( see Matter of Rudick, 278 A.D.2d 328, 329, 718 N.Y.S.2d 202). Petitioner failed to preserve for our review her contention that the court erred in revoking the durable power of attorney previously executed by Edward in favor of petitioner and Robert.

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

1 A.D.3d 355, 767 N.Y.S.2d 33, 2003 N.Y. Slip Op. 18038

Supreme Court, Appellate Division, Second Department, New York.

In the Matter of ROSA B.–S. (Anonymous), Appellant, William M.B. (Anonymous), Respondent.

Submitted Oct. 10, 2003. Nov. 3, 2003.

Proceeding was brought for appointment of a guardian for allegedly incapacitated individual. The Supreme Court, Queens County, Thomas, J., determined that individual was incapacitated and appointed a guardian, and individual appealed. The Supreme Court, Appellate Division, held that: (1) testimony of individual's physician violated doctor-patient privilege, as individual neither waived the privilege nor affirmatively

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asserted her mental condition at trial, and (2) trial court's error in admitting testimony of individual's physician did not warrant new trial, as testimony of individual's children established individual's inability to care for her medical, personal, or financial needs.

Affirmed. **33 Mark Diamond, New York, NY, for appellant.

**34 GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, BARRY A. COZIER and REINALDO E. RIVERA, JJ.

*355 In a proceeding pursuant to Mental Hygiene Law article 81 for the appointment of a guardian for Rosa B.-S., the appeal is from a resettled judgment of the Supreme Court, Queens County (Thomas, J.), entered May 23, 2001, which, upon a jury verdict, inter alia, determined that the appellant was an incapacitated person and appointed a guardian.

ORDERED that on the court's own motion, the notice of appeal from an order of the same court dated February 20, 2001, is deemed a premature notice of appeal from the resettled judgment ( see CPLR 5520[c] ); and it is further,

ORDERED that the resettled judgment is affirmed, without costs or disbursements.

The rules of evidence apply in guardianship proceedings, but “[a] court may, for good cause shown, waive the rules of evidence” (Mental Hygiene Law § 81.12[b]; see Matter

of Janczak, 167 Misc.2d 766, 770, 634 N.Y.S.2d 1020). The waiver provision set forth in Mental Hygiene Law § 81.12(b) is applicable only in uncontested proceedings where there is consent to the appointment of a guardian ( see Matter of Janczak, supra at 771, 634 N.Y.S.2d 1020).

*356 In this proceeding, the trial court was required to follow the rules of evidence, including the assertion and waiver of the doctor-patient privilege ( see CPLR 4504), since the appellant did not consent to the appointment of a guardian. Although a guardianship proceeding places the alleged incapacitated person's medical and mental condition in controversy, he or she does not waive the doctor-patient privilege unless he or she has affirmatively placed his or her medical condition in issue ( see Dillenbeck v. Hess, 73 N.Y.2d 278, 539 N.Y.S.2d 707, 536 N.E.2d 1126; Matter of Goldfarb, 160 Misc.2d 1036, 1042, 612 N.Y.S.2d 788; Matter of Flowers, 148 Misc.2d 166, 168, 559 N.Y.S.2d 775).

The trial court improperly allowed testimony from the appellant's former physician regarding his treatment of her in violation of the doctor-patient privilege, as the appellant neither waived the privilege nor affirmatively asserted her mental condition at trial ( see CPLR 4504; Dillenbeck v. Hess, supra at 286–287, 539 N.Y.S.2d 707, 536 N.E.2d 1126; Matter of Goldfarb, supra; Matter of Flowers, supra).

However, contrary to the appellant's contention, the trial court's error in admitting her former physician's testimony does not warrant a new trial since the testimony of the appellant's children established the appellant's inability to care for her medical, personal,

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or financial needs, and Mental Hygiene Law article 81 does not require medical testimony in a guardianship proceeding ( see Matter of Harriet R., 224 A.D.2d 625, 639 N.Y.S.2d 390; Matter of Kustka, 163 Misc.2d 694, 622 N.Y.S.2d 208).

The appellant's remaining contentions are without merit.

25 A.D.3d 704, 811 N.Y.S.2d 708, 2006 N.Y. Slip Op. 00516

Supreme Court, Appellate Division, Second Department, New York. In the Matter of MARIE H. (Anonymous).

Julie M. (Anonymous), respondent; Mental Hygiene Legal Service, o/b/o Marie H. (Anonymous), appellant.

Jan. 24, 2006. Background: Proceeding was brought for appointment of guardian for allegedly incapacitated individual. The Supreme Court, Westchester County, Rosato, J., granted petition, and Mental Hygiene Health Service, on behalf of individual, appealed. Holding: The Supreme Court, Appellate Division, held that psychiatrist who had examined individual as part of mobile crisis team was not treating physician, and thus individual could not assert physician-patient privilege to preclude psychiatrist's testimony. Affirmed. Skelos, J., filed concurring opinion. **709 Mental Hygiene Legal Service, Mineola, N.Y. (Sidney Hirschfeld, Felicia B. Rosen, and Dennis B. Feld of counsel), appellant pro se. HOWARD MILLER, J.P., BARRY A. COZIER, GLORIA GOLDSTEIN, and PETER B. SKELOS, JJ. *705 In a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of Marie H., an alleged incapacitated person, the Mental Hygiene Legal Service, on behalf of Marie H., appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Rosato, J.), entered June 7, 2004, which, inter alia, after a hearing, granted the petition. ORDERED that the order and judgment is affirmed, without costs or disbursements. At issue here is whether the testimony of Dr. Anthony Stern as to Marie H.'s mental state was admissible in the instant proceeding. Marie H. claims that Dr. Stern's testimony was inadmissible as violative of the physician-patient privilege ( see CPLR 4504[a] ). The petition alleged that “[f]rom September 5, 2003 until October 31, 2003 Marie was a patient at Westchester County Medical Center/Behavioral Health Center ... resulting from

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an involuntary admission through the Mobile Crisis Team.” On September 5, 2003, Dr. Anthony Stern examined Marie H. in her apartment as part of a “crisis team” operating pursuant to Mental Hygiene Law § 31.27. Dr. Stern diagnosed Marie H. as suffering from schizoaffective disorder with “manic and depressive ailment” and “severe mood swings in association with both hallucinations and ... paranoid delusions.” Dr. Stern and his “teammates” concluded that it was necessary to hospitalize Marie H. involuntarily that same day. Dr. Stern did not prescribe treatment or otherwise participate in her treatment at the hospital and was unaware of the nature of her treatment. On October 31, 2003, Marie H. was discharged from Westchester County Medical Center to her residence and the instant proceeding was commenced based upon the petitioner's verified petition and the affidavit of Dr. Stern. At the hearing on the petition, the petitioner, who is the sister of Marie H., bore the burden of proving by clear and convincing evidence that Marie H. was incapacitated ( see **710 Mental Hygiene Law § 81.12[a] ). The rules of evidence apply to proceedings pursuant to Mental Hygiene Law article 81, and Mental Hygiene Law § 81.12(b), which permits the court to waive the rules of evidence “for good cause shown,” only applies in uncontested proceedings ( see Matter of Rosa B.-S., 1 A.D.3d 355, 767 N.Y.S.2d 33). *706 In the instant case, Mental Hygiene Legal Service, appearing on behalf of Marie H. (hereinafter the appellant), contested the petition and moved to strike Dr. Stern's affidavit and preclude his testimony based upon the physician-patient privilege. The petitioner opposed the motion on the ground that Dr. Stern was not a treating physician. The application was denied. After Dr. Stern and the petitioner testified and Marie H. presented no evidence, the petition was granted. CPLR 4504(a) provides that a person authorized to practice medicine “shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity” unless the patient waives such privilege. The physician-patient privilege is “purely a legislative creation” with a number of exceptions ( People v. Sinski, 88 N.Y.2d 487, 491, 646 N.Y.S.2d 651, 669 N.E.2d 809; see Matter of Sullivan, 184 Misc.2d 666, 668, 710 N.Y.S.2d 804). The burden is on the party asserting the privilege to show the existence of circumstances justifying its recognition ( see Williams v. Roosevelt Hosp., 66 N.Y.2d 391, 397, 497 N.Y.S.2d 348, 488 N.E.2d 94; Matter of Sullivan, supra ). The privilege is waived if the alleged incapacitated person affirmatively places his or her medical condition in issue ( see Matter of Rosa B.-S., supra; Matter of Tara X., N.Y.L.J., Sept. 18, 1996 at 27, col. 1 [Sup. Ct., Suffolk County, Prudenti, J.] ). In the instant case, Marie H. did not affirmatively place her medical condition in issue. She presented no evidence in her own behalf. Her contention is that Dr. Stern's testimony was inadmissible pursuant to the physician-patient privilege, and consequently the petitioner failed to submit sufficient competent evidence to satisfy her burden of proof. We disagree. The testimony of a treating physician is inadmissible in a proceeding pursuant to Mental Hygiene Law article 81 pursuant to the physician-patient privilege ( see Matter of Rosa B.-S., supra ). However, Dr. Stern was not Marie H.s' treating physician. He was part of a mobile crisis team whose function was to provide “[c]risis outreach services” defined as

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emergency psychiatric services including “evaluation, assessment and stabilization services; crisis reduction services; referral services; and other psychiatric emergency services” (Mental Hygiene Law § 31.27[a][3] ). Mental Hygiene Law § 31.27 was enacted as part of legislation to establish “Comprehensive Psychiatric Emergency Programs” in the State (see L. 1989, ch. 723; 1989 Legis. Ann. p. 313). Simultaneously with that provision, the Legislature *707 enacted Mental Hygiene Law § 9.40 which permits involuntary retention of a patient in a comprehensive psychiatric emergency program. Laws of 1989, chapter 723 also amended Mental Hygiene Law § 9.57 to provide that a “physician who has examined a person in a comprehensive psychiatric emergency program” is authorized to request the involuntary removal to a mental hospital of a person who appears to have mental illness “for which immediate care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others.” As part of that statutory scheme, the Legislature amended Mental Hygiene Law § 9.59(a) to provide that “any employee of **711 a licensed comprehensive psychiatric emergency program, specially trained in accordance with standards developed by the commissioner, who transports a person to a hospital” is not liable for damages to the person transported to the hospital unless gross negligence is established (L. 1989, ch. 723, § 8). The Crisis Team was authorized to remove Marie H. to a hospital against her will and did in fact do so. Its conduct constituted a State action analogous to an arrest for which the State enjoys a qualified immunity from liability under 42 USC § 1983 ( see Glass v. Mayas, 984 F.2d 55, 58). The nature of this relationship bears little resemblance to the physician-patient relationship which is created “when professional services are rendered and accepted ” (emphasis added) by the patient pursuant to an express or implied contract ( Heller v. Peekskill Community Hosp., 198 A.D.2d 265, 603 N.Y.S.2d 548). At a hearing to determine whether a patient may be retained in a hospital for involuntary psychiatric care, the hospital “must establish by clear and convincing evidence that the patient is mentally ill and in need of further care and treatment” (Matter of John P., 265 A.D.2d 559, 697 N.Y.S.2d 120; see Matter of Anonymous v. Carmichael, 284 A.D.2d 182, 727 N.Y.S.2d 408). The hospital's proof generally includes testimony by a psychiatrist or psychiatrists ( see Matter of Consilvio, 8 A.D.3d 22, 24, 777 N.Y.S.2d 497). As a nontreating psychiatrist, Dr. Stern's testimony would have been admissible in a hearing to determine whether further involuntary hospitalization was warranted ( see Ughetto v. Acrish, 130 A.D.2d 12, 15, 518 N.Y.S.2d 398). Applying the physician-patient privilege to such testimony would make it difficult to provide involuntary treatment for mental illness and would be contrary to the legislative scheme. In any event, the unrebutted testimony of the petitioner, inter alia, describing Marie H.'s delusional behavior and her inability to manage her own affairs satisfied the petitioner's burden pursuant*708 to Mental Hygiene Law § 81.12(a) ( see Matter of Rosa B.-S., supra ). The appellant's remaining contention is without merit. H. MILLER, J.P., COZIER and GOLDSTEIN, JJ., concur.

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SKELOS, J., concurs and votes to affirm the order and judgment, with the following memorandum: I agree with the majority that the unrebutted testimony of the petitioner presented clear and convincing evidence of Marie H.'s inability to provide for her personal needs and property management. As such, the petitioner met her evidentiary burden under Mental Hygiene Law § 81.12 for the appointment of a guardian. However, I do not agree with the majority's conclusion that the testimony of the crisis team psychiatrist who initially evaluated the alleged incapacitated person (hereinafter the AIP) was properly admitted. In my opinion, such testimony violated the physician-patient privilege ( see CPLR 4504 [a] ). The majority argues that since Dr. Stern did not prescribe medication or otherwise participate in the treatment of the AIP after her involuntary hospitalization, he qualifies as a non-treating physician who can testify without violating the privilege. I do not agree. Dr. Stern was attending the AIP in a professional capacity when he observed and evaluated her as part of a crisis team. This assessment resulted in her involuntary hospitalization and necessarily involved medical determinations protected by the privilege. It does **712 not matter that the physician-patient relationship arose from the “exigencies of the patient's situation” ( Meyer v. Supreme Lodge K. of P., 178 N.Y. 63, 69, 70 N.E. 111, affd. 198 U.S. 508, 25 S.Ct. 754, 49 L.Ed. 1146). One who is treated by a physician, even against her will, becomes a patient of that physician by operation of law ( id. at 67, 70 N.E. 111). “The relation of physician and patient, so far as the statute under consideration is concerned, springs from the fact of professional treatment, independent of the causes which led to such treatment. An examination made in order to prescribe establishes the same relation” ( id.; see also People v. Decina, 2 N.Y.2d 133, 142, 157 N.Y.S.2d 558, 138 N.E.2d 799). The physician-patient privilege applies to information obtained by a medical professional for diagnostic purposes as well as treatment ( see Hughson v. St. Francis Hosp. of Port Jervis, 93 A.D.2d 491, 499, 463 N.Y.S.2d 224). As the court explained in Hughson, supra, the test as to what constitutes privileged information includes “not only communications received from the lips of the patient but such knowledge as may be acquired from the patient [herself], from the statement of others who may surround [her] at the time, or from observation of [her] appearance and symptoms ” ( id. at 498, 463 N.Y.S.2d 224 [emphasis added], quoting Edington v. Mutual Life Ins. Co. of N.Y., 67 N.Y. 185, 194). *709 It is obvious that Dr. Stern reached his conclusions regarding the AIP's need for hospitalization based on his observations of the AIP's appearance and symptoms on September 5, 2003. His diagnosis of the AIP as a paranoid individual suffering from a schizoaffective disorder necessarily required an application of his medical skills and knowledge and were not the mere observations of a layperson. Accordingly, Dr. Stern's role as a diagnosing medical professional gave rise to a physician-patient relationship with the AIP, and the statutory privilege of CPLR 4504(a) attached to his professional observations. As the Court of Appeals remarked in Dillenbeck v. Hess, 73 N.Y.2d 278, 284 n. 4, 539 N.Y.S.2d 707, 536 N.E.2d 1126, “[t]hough a physician is not precluded from testifying concerning ordinary incidents and facts of a person's medical history that

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are obvious to those without professional training, it is universally acknowledged that any medical information acquired by the physician through the application of professional skill or knowledge is protected by the statute.” Courts that have considered the physician-patient privilege within the context of contested article 81 proceedings such as the one under review have determined that medical testimony violative of the privilege is not admissible in the absence of a waiver ( see Matter of Rosa B.-S., 1 A.D.3d 355, 356, 767 N.Y.S.2d 33; Matter of Seidner, N.Y.L.J., Oct. 8, 1997, at 28, col. 4 [Sup. Ct., Nassau County, Rossetti, J.]; Matter of Tara X., N.Y.L.J., Sept. 18, 1996, at 27, col. 1 [Sup. Ct., Suffolk County, Prudenti, J.]; Matter of Higgins [ England ], N.Y.L.J., Oct. 6, 1995, at 27, col. 2 [Sup. Ct., New York County, Ramos, J.] ). As Presiding Justice Prudenti pointed out in Matter of Tara X., supra, once a guardianship proceeding has become adversarial, the limited exception to the physician-patient privilege carved out by Mental Hygiene Law § 81.09(d) must give way to the evidentiary and due process concerns of the AIP. “To hold otherwise would afford respondents in Article 81 proceedings a modicum of due process which falls below that afforded their counterparts in other legal proceedings and would effectively nullify the heavy quantum of proof imposed upon the petitioners seeking guardianship over non-consenting persons” under**713 Section § 81.12(a)” ( id.). This position is consistent with the traditionally broad and liberal construction given the privilege in order to achieve its policy objectives, and the narrow construction given the few well-defined legislative limitations thereto ( see Matter of Grand Jury Investigation in N.Y. County, 98 N.Y.2d 525, 532, 749 N.Y.S.2d 462, 779 N.E.2d 173; People v. Sinski, 88 N.Y.2d 487, 492, 646 N.Y.S.2d 651, 669 N.E.2d 809; Dillenbeck v. Hess, supra at 290 n. 6, 539 N.Y.S.2d 707, 536 N.E.2d 1126; Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130, 135–136, 463 N.Y.S.2d 758, 450 N.E.2d 678). (It is worth noting that the exception created by *710 Mental Hygiene Law § 81.09[d] contemplates both the appointment of a court evaluator pursuant to Mental Hygiene Law § 81.09[b] and an appropriate motion by an evaluator allowing for the inspection or disclosure of privileged information. Neither precondition was met in this case). While I agree with the majority that testimony from a physician is helpful in proceedings of this nature, Mental Hygiene Law article 81 does not require medical testimony for the appointment of a guardian ( see Mental Hygiene Law §§ 81.02[a][2], 81.03[e]; Matter of Rosa B.-S., supra at 356, 767 N.Y.S.2d 33; Matter of Harriet R., 224 A.D.2d 625, 626, 639 N.Y.S.2d 390; Matter of Kustka, 163 Misc.2d 694, 699–700, 622 N.Y.S.2d 208). Contrary to the majority's contention, it is irrelevant that the privilege as asserted here impedes the disclosure of legally pertinent information that would assist the court in its determination of the AIP's mental capacity. (It may reasonably be argued that there is an anomaly in a statute that allows the court to appoint an evaluator who may breach the privilege upon application pursuant to Mental Hygiene Law § 81.09[d], yet provides no corresponding mechanism for the court to ascertain the same relevant information sua sponte. Nevertheless, it is not for the court to second guess the legislature in this regard and remedy this perceived oversight). “Were we to carve out an exception to the privilege whenever it inhibited the fact-finding process, it would quickly become eviscerated” ( Dillenbeck v. Hess, supra at 289, 539 N.Y.S.2d 707, 536 N.E.2d 1126; see Monica W. v. Milevoi, 252 A.D.2d 260, 262–263, 685 N.Y.S.2d 231). As in the present case, petitioners are often able to establish an AIP's need for a guardian through non-expert and non-privileged testimony ( see Matter of Rosa B.-S., supra; Matter of Harriet R., supra).

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The court should not weaken the physician-patient privilege simply to ease the evidentiary burden on a petitioner attempting to provide unwanted assistance to an AIP. Accordingly, the testimony of Dr. Stern should not have been admitted or considered by the Supreme Court.

66 A.D.3d 1344, 886 N.Y.S.2d 295, 2009 N.Y. Slip Op. 06897

Supreme Court, Appellate Division, Fourth Department, New York.

In the Matter of the Application of Rosanna E. HECKL, Olivia J. Corey, Christopher M. Corey and Thomas J. Corey, Petitioners–Respondents–Appellants,

For the Appointment of a Personal Needs and Property Management Guardian of Aida C., an Alleged Incapacitated Person, Appellant–Respondent.

Permclip Products Corp., Intervenor–Respondent.

Oct. 2, 2009.

Background: Children petitioned for appointment of guardians over the person and property of their mother, an alleged incapacitated person (IP). The Supreme Court, Erie County, Penny M. Wolfgang, J., appointed the IP's granddaughter and the IP's personal assistant as coguardians of the IP's person and corporate counsel for corporation of which IP was the president and sole shareholder as guardian of the IP's property. IP and her children appealed. Holdings: The Supreme Court, Appellate Division, held that: (1) granddaughter was appropriate person to appoint as guardian of IP's person; (2) conflict of interest disqualified personal assistant from serving as guardian over IP's person; (3) appointing corporate counsel as guardian over property was warranted; and (4) court did not violate IP's due process rights by requiring her to testify at hearing.

Affirmed as modified.

**296 Phillips Lytle LLP, Buffalo (Alan J. Bozer of Counsel), for Appellant–Respondent. Lippes Mathias Wexler Friedman LLP, Buffalo (Kevin J. Cross of Counsel), for Petitioners–Respondents–Appellants.

PRESENT: SCUDDER, P.J., HURLBUTT, PERADOTTO, GREEN, AND GORSKI, JJ.

MEMORANDUM:

*1345 The alleged incapacitated person, Aida C. (hereafter, IP) appeals and petitioners cross-appeal from an order and judgment appointing the IP's personal assistant

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and granddaughter as coguardians of the IP's person and the corporate counsel of intervenor-respondent, Permclip Products Corp. (Permclip), as guardian of the IP's property in this proceeding pursuant to Mental Hygiene Law article 81. As we noted in a prior decision concerning this proceeding, the IP is the mother of petitioners, as well as the president and sole shareholder of Permclip (Matter of Aida C., 44 A.D.3d 110, 112, 840 N.Y.S.2d 516). In an amended petition, petitioners removed themselves from consideration as guardians of the IP's property and, during*1346 the pendency of this proceeding, they proposed that the IP's granddaughter, rather than any of the petitioners, be named guardian of the IP's person inasmuch as petitioners and the IP have been estranged since 2005.

Contrary to the contention of the IP on her appeal, Supreme Court properly denied her motion to dismiss the amended petition and determined that she is incapacitated and requires a guardian to provide for her personal needs as well as a guardian to manage her property ( see Mental Hygiene Law § 81.15[b], [c] ). We reject the further contention of the IP that the court erred in appointing her granddaughter as a coguardian of her person. We conclude with respect to petitioners' cross appeal, however, that the court erred in appointing the IP's personal assistant as a coguardian of the IP's person, and we therefore modify the order and judgment accordingly.

Pursuant to Mental Hygiene Law § 81.19(d), in appointing a guardian the court should consider, inter alia, the social relationship between the IP and the proposed guardian (§ 81.19[d][2] ); the care provided to the IP at the time of the proceeding (§ 81.19[d][3] ); the educational and other relevant experience of the proposed guardian (§ 81.19[d][5] ); the unique requirements of the IP (§ 81.19[d][7] ); and the existence of any conflicts of interest between the IP and the proposed guardian (§ 81.19[d][8] ). With respect to the IP's granddaughter, the record establishes that, although the IP mistakenly believes that she does not have grandchildren, the IP and her granddaughter had shared a very close and loving**297 relationship. Although the IP was not aware that she was related to her granddaughter, she enjoyed an evening with her granddaughter and other family members at a restaurant, and the IP invited her granddaughter to visit her at her home. In addition, the record establishes that the IP's granddaughter has experience in caring for two elderly women and has taken a training course with respect to the duties and responsibilities of a guardian of the person. The IP's granddaughter testified at the hearing on the amended petition that she is willing to work with the IP's personal assistant and recognizes her grandmother's dependence upon him. We thus conclude that there is no basis upon which to disturb the court's appointment of the IP's granddaughter as coguardian of the IP's person ( see Matter of Anonymous, 41 A.D.3d 346, 839 N.Y.S.2d 78).

As noted, however, we agree with petitioners that the court erred in appointing the IP's personal assistant as coguardian of the IP's person, inasmuch as there is a conflict of interest that prevents him from serving in that capacity ( see *1347 Mental Hygiene Law § 81.19[d][8] ). The personal assistant testified that he has worked for the IP for 34 years and has never received a paycheck. He further testified that he resides in the IP's home; the IP provides for his personal needs; and he has limited assets and is dependent upon the IP for his food, clothing and shelter. Furthermore, he testified that he does “pretty much” whatever the IP tells him to do. By way of example, he admitted that he summoned the police at the direction of the IP when her grandchildren came to visit and that, although the police handcuffed the IP's grandson, the personal assistant did not

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advise the police that the alleged intruders were the IP's grandchildren and that the IP had, the previous evening, invited her grandchildren to visit her. It is undisputed that the personal assistant is the trusted and constant companion of the IP and maintains her home in an “immaculate” condition. Nevertheless, we conclude that he is disqualified to serve as coguardian of the IP's person based upon a conflict of interest, inasmuch as he is dependent upon the IP to meet his basic needs and he does not exercise independent judgment, but rather simply does what the IP instructs him to do.

We reject the further contention of petitioners on their cross appeal that the court erred in appointing Permclip's corporate counsel as guardian of the IP's property. It is well established that it is within the discretion of the court to appoint a guardian ( see Matter of Wynn, 11 A.D.3d 1014, 1015, 783 N.Y.S.2d 179, lv. denied 4 N.Y.3d 703, 790 N.Y.S.2d 649, 824 N.E.2d 50). Here, the record establishes that Permclip's corporate counsel had worked for Permclip for a few years, and that he arranged to secure in excess of $2 million that had been left in various unsecured places in the IP's home. Inasmuch as petitioners in the amended petition deferred to their mother's wishes and no longer sought to be named guardians to manage the IP's property, we perceive no reason to disturb the exercise of the court's discretion in appointing Permclip's corporate counsel as guardian with respect to the IP's property ( cf. Matter of Chase, 264 A.D.2d 330, 331, 694 N.Y.S.2d 363).

We reject the contention of the IP that the court violated her due process rights by requiring her to testify at the hearing. Although the Mental Hygiene Law is silent on the issue whether the person alleged to be incapacitated (AIP) may be compelled to testify, we note that section 81.11(c) requires the presence of the AIP at the hearing “so as to permit the court to obtain its own impression of the person's capacity.” In addition, we note **298 that we previously rejected the contention of the IP that her Fifth Amendment rights against self-incrimination are implicated in an article 81 proceeding ( see Aida C., 44 A.D.3d at 115, 840 N.Y.S.2d 516; cf. *1348 Matter of A.G., 6 Misc.3d 447, 452–453, 785 N.Y.S.2d 313). We likewise conclude that her due process rights are not violated inasmuch as the court is charged with determining her best interests ( see generally Wynn, 11 A.D.3d at 1015, 783 N.Y.S.2d 179). We have reviewed the remaining contentions of the parties and conclude that they are without merit.

It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by vacating that part appointing Daniel Walsh co guardian of the person of Aida C. and as modified the order and judgment is affirmed without costs.

11 A.D.3d 1014, 783 N.Y.S.2d 179, 2004 N.Y. Slip Op. 07000

**1 In the Matter of Elizabeth Wynn, Appellant-Respondent, for the Appointment of a Guardian for Charles Wynn, an Alleged Incapacitated Person. James Wynn, Sr., *1015

Appellant-Respondent; Culver K. Barr, Esq., as Court-Appointed Evaluator, et al., Respondents.

Supreme Court, Appellate Division, Fourth Department, New York October 1, 2004

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Appeal and cross appeal from an order of the Supreme Court, Monroe County (Harold

L. Galloway, J.), entered December 2, 2003 in a proceeding of the Mental Hygiene Law article 81. The order granted the petition in part and appointed Lifespan of Greater Rochester, Inc. as the guardian for Charles Wynn.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking, inter alia, a determination that her husband is an incapacitated person (IP) within the meaning of Mental Hygiene Law § 81.02 and seeking to be appointed to serve as his guardian. Petitioner's contention that Supreme Court failed to conduct a “complete” hearing before determining who should be appointed guardian is without merit. Mental Hygiene Law § 81.11 (a) requires a hearing to determine whether appointment of a guardian is necessary (see Matter of Flight, 296 AD2d 845 [2002]) and that hearing was held. The determination who that guardian should be is left to the discretion of the court.

We reject petitioner's further contention that the court erred in appointing a nonrelative to serve as guardian. In selecting a guardian for an IP, “the primary concern is for the best interests of the [IP]” (Matter of Von Bulow, 63 NY2d 221, 224 [1984]). Although preference is given to relatives, a stranger may be appointed if the court determines that a relative is unsuitable (see Matter of Gustafson, 308 AD2d 305, 307-308 [2003]; Matter of Joseph V., 307 AD2d 469, 471 [2003]; Matter **2 of Chase, 264 AD2d 330, 331 [1999]). In this case, there was extreme contention between petitioner and the IP's siblings. Petitioner, who was divorced from the IP for almost 30 years before remarrying him in 2001, accused the IP's brother of stealing money from the IP, and the siblings accused petitioner of the same misconduct. Prior to this proceeding, the IP resided at times with petitioner and at other times with his siblings. Petitioner did not welcome visitation from the siblings while the IP was in her care and strongly opposed the appointment of the IP's brother as guardian, and the siblings did not welcome visitation from petitioner while the IP resided with them and strongly opposed the appointment of petitioner as guardian. Based on this record, the *1016 court properly exercised its discretion in determining that the best interests of the IP would be served by appointing a nonrelative to serve as guardian rather than petitioner or the IP's brother (see

Matter of Lyon, 52 AD2d 847, 848-849 [1976], affd 41 NY2d 1056 [1977]; Matter of

Scurlock, 90 AD2d 552 [1982]; Matter of Judas, 74 AD2d 874 [1980]).

Petitioner's remaining contentions concerning the alleged unconstitutionality of article 81 of the Mental Hygiene Law are not preserved for our review (see Liffiton v Grossman,

Levine & Civiletto, 100 AD2d 732 [1984]). Finally, contrary to the contention of the IP's brother on his cross appeal, the court properly ordered the guardian to determine whether to continue a lawsuit commenced by the IP prior to commencement of this proceeding. Present—Green, J.P., Pine, Scudder, Martoche and Hayes, JJ.

948 N.Y.S.2d 902, 2012 N.Y. Slip Op. 22204

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Supreme Court, Dutchess County, New York. In the Matter of the Application for the Appointment of A Guardian by Robert B.

ALLERS, as Commissioner of Social Services of Dutchess County Department of Social Services, Petitioner, for G.P., A Person Alleged to be Incapacitated, Respondent.

July 26, 2012.

Background: In guardianship proceeding under Mental Hygiene Law, county department of social services moved in limine for order directing that alleged incapacitated person (AIP) could be required to testify against himself at hearing on capacity. Counsel for AIP responded in opposition.

Holding: The Supreme Court, James D. Pagones, J., held that AIP would not be required to testify against himself at hearing on his capacity.

Opposition sustained. *903 William F. Bogle, Jr., Esq., Corbally, Gartland & Rappleyea, LLP, Poughkeepsie, for AIP, G.P. Janet V. Tullo, Esq., Bureau Chief, Poughkeepsie, for Petitioner, Dutchess County Department of Social Services. Eugenia B. Heslin, Esq., Mental Hygiene Legal Service, Court Evaluator, Second Judicial Department, Poughkeepsie, Kevin L. Wright, Esq. Temporary Guardian of the Property, Mahopac, for G.P.

JAMES D. PAGONES, J.

The issue for the court's determination is whether the Alleged Incapacitated Person (“AIP”) in this guardianship proceeding under Mental Hygiene Law (“MHL”) Article 81 can be required to testify against himself at a hearing conducted pursuant to section 81.11.

BACKGROUND The court recently completed a hearing under MHL § 81.23(a) to determine whether a

temporary guardian for the property management needs of the AIP and a guardian for personal care needs were necessary. The court determined that a temporary guardian for the property management needs was warranted and denied the application for a personal care needs guardian in its Decision, Findings of Fact and Order, dated and entered July 19, 2012.

The AIP attended the hearing with his court appointed attorney. The AIP did not testify, present witnesses or submit documentary evidence for consideration (p. 2). The Court sustained the objection of the AIP's attorney when counsel for the petitioner Department of Social Services (“DSS”) attempted to call the AIP as a witness for its case in chief (Transcript, 07/13/12 at p. 3).

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The parties and temporary guardian for property management have been directed to appear for a hearing on July 26, 2012 at 2:00 p.m. for the purpose of determining whether the temporary guardianship should be made permanent.

In the interim, counsel for DSS submitted correspondence supported by case law and legal analysis indicating that the petitioner intends to call the AIP to testify at the hearing. Counsel for the AIP has, in turn, responded in kind in opposition. As such, the court treats these submissions as an application for in limine determination.

DECISION Among its findings and declaration of purpose when enacting MHL Article 81, the

New York State Legislature expressed the following sentiment:

“The legislature finds that it is desirable for and beneficial to persons with incapacities to make available to them the least restrictive form of intervention which assists them in meeting their needs but, at the same time, permits them to exercise the independence and self-determination of which they are capable. The legislature declares that it is *904 the purpose of this act to promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account 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.” (81.01).

Procedural due process safeguards are included in the statute. The AIP is entitled to proper notice, legal representation, the right to demand a jury trial, the right to be present at any hearing, present evidence and otherwise participate. Moreover, the record of any hearing and records obtained by the Court Evaluator pursuant to MHL § 81.09, Mental Hygiene Facility records and records subject to 42 CFR 2.64 and New York Public Health Law § 2785 are potentially subject to an order sealing them from the public. (Article 81 of the Mental Hygiene Law, Best Practices Manual, Chap. 2, IV(B), December 2005.)

The statute (MHL § 81.11[4] ) mandates that a hearing to determine whether the appointment of a guardian is necessary for the AIP must, unless it is established that the AIP is completely unable to participate in the hearing, be conducted in the presence of the AIP “so as to permit the court to obtain its own impression of the person's capacity.” Words of ordinary import used in a statute are to be given their usual and commonly understood meaning, unless it is plain from the statute that different meaning is intended. ( McKinney's N.Y. Statutes, Book 1, § 232.) The word impression means, “a characteristic, trait or feature resulting from some influence” ( Merriam–Webster's

Collegiate Dictionary, Tenth Ed.); “an effect, feeling, or image retained as a consequence of experience” ( The American Heritage Dictionary of the English Language, Fourth Ed.). Noticeably silent from the cited statute is that the AIP is required to testify. The Court's impression of the AIP is set forth in its Decision, Findings of Fact and Order (p. 8, ¶ 20).

A determination that a person is incapacitated under Article 81 must be based on clear and convincing evidence. The petitioner bears the burden of proof. (MHL § 81.12[a] ).

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The court is only permitted to waive the rules of evidence “for a good cause shown.” (MHL § 81.12[b] ). The waiver provision applies only in uncontested proceedings where there is consent to the appointment of a guardian. ( Matter or Rosa B.-S., 1 A.D.3d 355, 767 N.Y.S.2d 33 [2d Dept.2003].)

Even with the protections afforded the AIP so as to implement the Legislature's stated findings and purpose, MHL Article 81 has been described as a “statute at war with itself.” (Fish, “Does the Fifth Amendment Apply in Guardianship Proceedings?”, NYLJ, 02/25/11, at 3, col. 1.) The statute “has at its core the contradictory notions of an adversarial model and a paternalistic model.” ( Id.)

The AIP in this proceeding does not consent to the appointment of a guardian. He has not affirmatively placed his condition in issue, nor has he waived any of his statutory privileges.

Counsel for the petitioner has cited Matter of Heckl, 66 A.D.3d 1344, at 1347, 886 N.Y.S.2d 295 (4th Dept.2009) and Matter of Aida C., 44 A.D.3d 110, at 115, 840 N.Y.S.2d 516 (4th Dept.2007) as the authority to compel the AIP to testify at the hearing. The Appellate Court in Matter of Heckl relied in part upon its ruling in Matter of Aida C. that an AIP's Fifth *905 Amendment rights against self-incrimination are not implicated in an Article 81 proceeding (at 1347). The issue before the Court in that decision involved the AIP's refusal to meet and speak with the Court Evaluator, not testify at a hearing on capacity under MHL § 81.11. The Heckl decision then states:

“We likewise conclude that [the AIP's] due process rights are not violated inasmuch as the court is charged with determining her best interests ( see generally In re Wynn, 11 A.D.3d 1014 at 1015, 783 N.Y.S.2d 179).”

The case relied upon the Appellate Court in Wynn is Matter of Lyon, 52 A.D.2d 847, 382 N.Y.S.2d 833 (2d Dept.1976), aff'd 41 N.Y.2d 1056, 396 N.Y.S.2d 183, 364 N.E.2d 847 (1977). The Lyon court based its determination upon Mental Hygiene Law Article 77 which was in effect at the time. While Article 77 may have allowed for a best interests standard at that time, Article 77 was replaced by Article 81, effective April 1, 1993 ( McKinney's Consolidated Laws of New York, Book 34A, Mental Hygiene Law Article 81, Historical and Statutory Notes, at 4).

There are only two (2) references to best interests in Article 81. The first is § 81.07(g)(1)(iv) which addresses itself to who is entitled to notice of the proceeding. The second is § 81.21(b)(6)(iii) which relates to authorizing the guardian for property management to turn over a photocopy of the incapacitated person's will or similar instrument.

The appointment of a guardian under Article 81 must be based upon clear and convincing evidence (§ 81.12[a] ) as demonstrated by the petitioner. This standard is much higher than best interests. It is consistent with the stated legislative findings and purpose to afford persons who are the subject of an Article 81 proceeding the opportunity to exercise the independence and self-determination of which they are capable (§ 81.01). The rules of evidence cannot be waived when the matter is contested. ( Matter of Rosa

B.-S., supra.)

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By providing the AIP with an abundance of safeguards so as to insure that any

guardianship shall only result in the least restrictive form of intervention (§ 81.01; § 81.02[a][2]; § 81.03[d]; § 81.21[a]; and § 81.22[a] ), the legislature clearly expressed its intention that he or she have heightened rights previously absent under former Articles 77 and 78 of the Mental Hygiene Law. Those articles dealt with conservators and committees.

A decision more directly on point is Matter of United Health Services Hospitals, Inc.

(A.G.), 6 Misc.3d 447, 785 N.Y.S.2d 313 (Broome County 2004). In sum, the Court carefully dissected the issue of an AIP's right to refuse to testify based upon Federal and State Constitutional grounds, the statutory right against self-incrimination incorporated in CPLR 4501, and the important decision by our state's Court of Appeals, Rivers v. Katz, 67 N.Y.2d 485, 504 N.Y.S.2d 74, 495 N.E.2d 337 (1986), rearg. den'd 68 N.Y.2d 808, 506 N.Y.S.2d 1039, 498 N.E.2d 438 (1986). That decision made it clear that a person retains his or her civil rights in a proceeding where personal liberty is at stake.

One only need review the powers of a guardian for property management (§ 81.21) and personal needs (§ 81.22) to understand that a person's liberty interest is most definitely at stake once a finding of incapacity is made. Determining where the person can live, with whom the person can associate, make medical and dental decisions, determine whether the person should travel, decide the person's social environment, authorize access to or the release of confidential records, whether the person can operate a motor vehicle, *906 make decisions with respect to the management and expenditure of one's assets, go to the very core of one's independence and ability to enjoy the pleasures of life. As one noted authority succinctly states: “Simply put, the burden is on the petitioner to prove incapacity, not on the AIP to disprove it.” (1 Abrams, Guardianship

Practice in New York State, Ch. 12, § VI, at 583). A petitioner has available other possibilities. Testimony can be obtained from lay witnesses, such as family members, neighbors or friends, as well as experts. (Fish, “Does the Fifth Amendment Apply in Guardianship Proceedings?”, supra at 6; MHL § 81.11[2].)

The determination in Heckl, which relied upon the determination in Wynn, which in turn based its decision on the determination in Lyon, was based upon a standard that had already been repealed by the enactment of Article 81. Therefore, this court is not bound by stare decisis as stated in Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 476 N.Y.S.2d 918 (2d Dept.1984).

For the foregoing reasons, the AIP's objection to being compelled to testify as a witness for the petitioner is sustained.

The foregoing constitutes the decision and order of the Court.

63 N.Y.2d 221, 470 N.E.2d 866, 481 N.Y.S.2d 67

In the Matter of the Appointment of a Committee of the Property of Martha C. Von Bulow, an Alleged Incompetent Person.

Chemical Bank and C. Sims Farr, Respondents,

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v. Claus Von Bulow et al., Appellants.

Court of Appeals of New York Argued October 9, 1984; decided October 23, 1984

SUMMARY

Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered May 22, 1984, which modified, on the law, and, as modified, affirmed a judgment of the Supreme Court at Special Term (Howard E. Bell, J.), entered in New York County, (1) declaring Martha C. Von Bulow incompetent, and (2) appointing as co-committees of her non-trust assets, Chemical Bank, C. Sims Farr and Javier White. The modification consisted of vacating the appointment of Javier White.

Respondents, C. Sims Farr, an attorney, and Chemical Bank, commenced this proceeding by petitioning the court for a determination of incompetency as to Martha C. Von Bulow. There being no dispute as to the necessity for a committee, Special Term appointed respondents who for decades had been active in managing Mrs. Von Bulow's finances and counseling her. This appointment was made over the objection of appellants, Claus and Cosima Von Bulow, that respondents were associated with members of Mrs. Von Bulow's family who were hostile to them. Although it found no conflict of interest on the part of Farr or Chemical Bank, Special Term appointed a stranger to the parties and their affairs as a third cocommittee. On cross appeals relating solely to the issue of committee composition, the Appellate Division modified the Supreme Court judgment “on the law,” by vacating the appointment of the third cocommittee, but affirmed as to the appointment of Farr and Chemical Bank. Although it found no deficiency in the qualifications or fitness to serve of the third cocommittee appointed by Special Term, the Appellate Division nonetheless concluded that the interests of the incompetent were best served by the appointment of respondents alone. *222

The Court of Appeals dismissed the appeal from the Appellate Division order, holding, in a Per Curiam opinion, that an appeal does not lie as of right unless the modification is in a substantial respect which is within the power of the Court of Appeals to review on such appeal; that despite a recitation that the modification was “on the law”, the Appellate Division memorandum indicates that the modification was the result of a substitution of its own discretion for that of Special Term; and that the issues tendered are not within the power of the Court of Appeals to review, since no substantial question of abuse as a matter of law by the Appellate Division has been presented, nor is it contended that the result reached by the exercise of its discretion is so outrageous as to shock the conscience.

Matter of Von Bulow, 101 AD2d 773, appeal dismissed. Louis Biancone and Roy M. Cohn for appellants. Owen McGivern and Haliburton Fales, 2d, for respondents.

OPINION OF THE COURT

73

Per Curiam.

The issue presented concerns the appealability to this court of an Appellate Division order modifying an exercise of discretion by a lower court Judge. *224

Respondents, C. Sims Farr, an attorney, and Chemical Bank, commenced this proceeding by petitioning the court for a determination of incompetency as to Martha C. Von Bulow. There being no dispute as to the necessity for a committee, Special Term appointed respondents, since for decades they had been active in managing Mrs. Von Bulow's finances and counseling her. This appointment was made over the objection of appellants, Claus and Cosima Von Bulow, that respondents were associated with members of Mrs. Von Bulow's family who were hostile to them. Though it found no conflict of interest on the part of Farr or Chemical, Special Term appointed a third co committee, a stranger to the parties and their affairs, because it believed “that the injection of a fresh, independent viewpoint into the management of Mrs. Von Bulow's affairs can only be salutary.” On cross appeals relating solely to the issue of committee composition, the Appellate Division modified, “on the law,” by vacating the appointment of the third co committee but affirmed that of Farr and Chemical.

In selecting a committee for an incompetent, the primary concern is for the best interests of the incompetent (see, e.g., Matter of Kalthoff, 298 NY 458). This determination necessarily involves a judgment upon the facts and lies in the court's discretion (see Matter of Rothman, 263 NY 31; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], ch 16). On appeal, the Appellate Division may review the determination for an abuse of discretion but may also substitute its own discretion even in the absence of an abuse by Special Term (Barry v Good Samaritan Hosp., 56 NY2d 921). The lower courts have considerable latitude in exercising their discretion, which may be upset by us only for abuse as a matter of law.

Though the Appellate Division stated that Special Term had abused its discretion in appointing a third co committee, an examination of its memorandum decision reveals that the court went considerably beyond. Finding no deficiency in the qualifications or fitness to serve of the third co committee appointed by Special Term, the Appellate Division nonetheless concluded that the interests of the incompetent were best served by the appointment of respondents alone. The court felt the appointment of a *225 stranger as a co committee “would constitute an unjustified burden on the administration of the estate under the circumstances of this case” (101 AD2d, at p 774); that Chemical understandably would expect a fee if it had to educate a stranger and attend regular meetings with an outsider; and that the “insubstantial evidence presented thus far of partiality does not justify this burden on the estate.” (101 AD2d, at p 775.) The court further noted that the conviction of Mr. Von Bulow on two counts of assaulting his wife with intent to commit murder had been reversed by the Rhode Island Supreme Court -- an event occurring after Special Term's decision. It concluded that the interests of the incompetent were best served by the appointment of respondents, and the interest of the minor daughter adequately protected. These findings reflect the exercise of discretion as to factual determinations. Thus, despite a recitation that the modification was “on the law,” the decision leaves no doubt that the Appellate Division action was the result of a substitution of its own discretion for that of Special Term.

74

Where, as here, an appeal is taken as of right on the basis of a modification at the Appellate Division, that modification must be in a substantial respect “which is within the power of the court of appeals to review on such appeal” (CPLR 5601, subd [a], par [iii]).FN* Necessarily this category of appeals is predicated on the court's evaluation of the merits of an appeal, for if the issues tendered are not reviewable by us the appeal must be dismissed (Patron v Patron, 40 NY2d 582). Here, we conclude that issues tendered are not within our power to review. No substantial question of abuse as a matter of law by the Appellate Division has been presented; nor is it contended that the result reached by the exercise of its discretion is so outrageous *226 as to shock the conscience. (Patron v Patron, 40 NY2d 582, 585, supra.) Accordingly, the appeal must be dismissed. FN* This statutory restriction on our jurisdiction gives particular importance to how the order and decision of the Appellate Division are formulated. When the Appellate Division decision rests on abuse of discretion by the lower court as a matter of law, and the order so recites, a question of law may be presented for our review. When, however, the Appellate Division concludes that there was an improvident exercise of discretion below and substitutes its own discretion, and the order recites that the modification is made as a matter of discretion, then the issues will be appealable only where this court determines that a substantial question of abuse has been presented or the result reached is so outrageous as to shock the conscience. Recitals in the orders of the Appellate Divisions and articulations in their opinions which fail to recognize and implement this distinction may lead to confusion as to appealability or scope of review in our court.

Appeal dismissed, without costs, in a Per Curiam opinion. *227

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VII. Post Hearing

At a Term of the Supreme Court of the State of New York, held in and for the County of Monroe at the Hall of Justice, Rochester, New York on the 4th day of November, 2011

PRESENT: HON. Justice, Supreme Court SUPREME COURT STATE OF NEW YORK COUNTY OF MONROE Index No: In the Matter of the Application of the Director of Social Services of the County of Monroe, Petitioner, For the Appointment of a Guardian of the Person ORDER AND JUDGMENT and Property of APPOINTING GUARDIAN

OF THE PERSON AND PROPERTY

an Alleged Incapacitated Person. _________________________________________

Upon reading and filing the petition of Kelly A. Reed, the Commissioner of

Social Services of Monroe County, duly verified the 12th day of April, 2011, the

and upon reading and filing the Order to Show Cause in this proceeding signed

by this Court, April 20, 2011 appointing Mental Hygiene Legal Services as

attorney for, and, Esq. as Court Evaluator, and proofs of due service of a copy of

the Order to Show Cause, Petition, and Affidavit having been filed with the Court,

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And this proceeding having come on regularly to be heard on November

4, 2011 and Mark E. Maves, Esq. of the Monroe County Attorney's Office having

appeared for petitioner;

And, Esq. having appeared for and with;

And, Esq. having appeared as Court Evaluator and having presented his

report to the Court;

And the Court having conducted a hearing and having made the following

findings on the record, pursuant to:

Mental Hygiene Law §81.15(b):

1. has functional limitations which impair his ability to provide for his

personal needs. Those functional limitations include memory loss,

confusion, severe cognitive impairment, and physical limitations which

necessitate 24 hour supervision;

2. lacks an understanding and appreciation of the nature and

consequences of his functional limitations;

3. It is likely that will suffer harm because of his functional limitations and

his inability to understand and appreciate the nature and

consequences of his functional limitations;

4. The appointment of a guardian to provide for the personal needs of is

necessary; and

5. The specific personal needs powers of the guardian as set forth below

constitute the least restrictive form of intervention consistent with the

functional limitations of ;

and pursuant to

Mental Hygiene Law §81.15(b):

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1. property and financial resources consist of his home, which is currently

in foreclosure, and his pension in the amount of approximately $1150

per month and social security benefits, which are in the amount of

approximately $1323 per month;

2. has functional limitations which impair his ability to provide for his

property management. Those functional limitations include memory

loss, confusion, and severe cognitive impairment;

3. lacks an understanding and appreciation of the nature and

consequences of his functional limitations;

4. It is likely that will suffer harm because of his functional limitations and

his inability to understand and appreciate the nature and

consequences of his functional limitations;

5. No additional findings are required under Mental Hygiene Law §81.21;

6. The appointment of a guardian to provide for the property needs of is

necessary;

7. The specific property management powers of the guardian as set forth

below constitute the least restrictive form of intervention consistent with

the functional limitations of ;

8. The duration of the appointment of the guardian shall be indefinite;

and

9. The incapacitated person should not receive copies of the initial and

annual report;

And the Court having considered the appointment of family members to

serve as guardian of and having determined that such appointment is not

appropriate at this time, except to the extent of consultation with on certain

78

matters as set forth below and his selection from among available,

appropriate placements as set forth below;

And upon all the pleadings and proceedings heretofore had herein and

due deliberation having been had herein,

NOW, THEREFORE, it is hereby

ORDERED AND ADJUDGED, that is hereby determined to be an

incapacitated person in need of the appointment of a guardian to provide for her

personal needs and property management; and, it is further

ORDERED AND ADJUDGED, that is hereby appointed guardian of the

person and property of, subject to the limitations and provisions set forth

herein, upon the filing with the Clerk of this Court a designation required by

Section 81.26 of the Mental Hygiene Law, and it is further

ORDERED AND ADJUDGED, that the filing of a bond by the guardian

named herein is hereby waived pursuant to Section 81.25 of the Mental Hygiene

Law, and it is further

ORDERED AND ADJUDGED, that pursuant to Section 81.27 of the

Mental Hygiene Law, upon the filing of the designations as required by statute,

commissions in due form of law shall be issued by the Clerk of the Court, and it is

further

ORDERED AND ADJUDGED, that the duration of this appointment shall

be indefinite, and it is further

ORDERED AND ADJUDGED, that the guardian shall use its best

judgment in exercising powers on behalf of and pursuant to Section 81.20 of the

Mental Hygiene Law shall perform the following duties:

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1. Exercise only those powers that the guardian is authorized

to exercise by Court Order;

2. Exercise the utmost care and diligence when acting on

behalf of the incapacitated person;

3. Exhibit the utmost degree of trust, loyalty and fidelity in

relation to the incapacitated person;

4. File an initial and annual report in accordance with Sections

81.30 and 81.31 of the Mental Hygiene Law;

5. Visit the incapacitated person not less than four (4) times a

year or more frequently as necessary;

6. When managing property for the incapacitated person:

a) afford the incapacitated person the greatest amount of

independence and self-determination with respect to property management in

light of that person's functional level, understanding and appreciation of her

functional limitations, and personal wishes, preferences and desires with regard

to managing the activities of daily living;

b) preserve, protect, and account for such property and financial

resources faithfully;

c) determine whether the incapacitated person has executed a will,

and the appropriate persons to be notified in the event of the death of the

incapacitated person and, in the event of the death of the incapacitated person,

notify those persons;

d) use the property and financial resources and income therefrom to

maintain and support the incapacitated person;

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e) at the termination of the appointment, deliver such property to the

person legally entitled to it;

f) if the alleged incapacitated person is possessed of real property,

file with the recording officer of the county where the property is located the

statement required by Mental Hygiene Law Section 81.20(a)(6)(vi);

g) perform all other duties required by law.

7. When acting or making decisions relating to the personal

needs of the incapacitated person, afford said person the greatest

amount of independence and self-determination with respect to

personal needs in light of that person’s functional limitations and

personal wishes, preferences and desires regarding managing the

activities of daily living. In doing so, the guardian shall make

reasonable efforts to consult with the incapacitated person’s

children to determine those personal wishes, preferences and

desires; and, it is further

ORDERED AND ADJUDGED, that is authorized to exercise the property

management powers set forth in Mental Hygiene Law Section 81.21 on behalf of

the incapacitated person, as well as the following powers:

1. make gifts;

2. provide support for persons dependent upon the incapacitated person for

support, whether or not the incapacitated person is legally obligated to

provide that support;

3. convey or release contingent and expectant interests in property, including

marital property rights and any right of survivorship incidental to joint tenancy

or tenancy by the entirety;

81

4. exercise or release powers held by the incapacitated person as trustee,

personal representative, guardian for minor, guardian, or donee of a power of

appointment;

5. enter into contracts;

6. create revocable or irrevocable trusts of property of the estate which may

extend beyond the incapacity or life of the incapacitated person;

7. exercise options of the incapacitated person to purchase securities or other

property;

8. exercise rights to elect options and change beneficiaries under insurance

and annuity policies and to surrender the policies for their cash value;

9. exercise any right to an elective share in the estate of the incapacitated

person's deceased spouse;

10. renounce or disclaim any interest by testate or intestate succession or by inter

vivos transfer consistent with paragraph (c) of section 2-1.11 of the estates,

powers and trusts law;

11. authorize access to or release of confidential records;

12. apply for government and private benefits;

13. marshall assets;

14. pay the funeral expenses of the incapacitated person;

15. pay such bills as may be reasonably necessary to maintain the incapacitated

person;

16. invest funds of the incapacitated person as permitted by section 11-2.3 of the

estates, powers and trusts law;

17. lease the primary residence for up to three years;

18. retain an accountant;

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19. pay bills after the death of the incapacitated person provided the authority

existed to pay such bills prior to death until a temporary administrator or

executor is appointed;

20. defend or maintain any judicial action or proceeding to a conclusion until an

executor or administrator is appointed[;

21. Have full physical access to;

22. Authority to enter the residence at during business hours

(8AM-5PM) and at other reasonable hours;

23. Full authority to deal with foreclosure on behalf of;

and

24. sell real property and use any proceeds for the benefit of

And it is further

ORDERED AND ADJUDGED, that the is authorized to exercise the

personal needs powers set forth in Mental Hygiene Law Section 81.22 on behalf

of the incapacitated person, as well as the following powers:

1. determine who shall provide personal care or assistance 2. make decisions regarding social environment and other social aspects of the life of the incapacitated person; 3. determine whether the incapacitated person should travel; 4. determine whether the incapacitated person should possess a license to drive; 5. authorize access to or release of confidential records; 6. make decisions regarding education; 7. apply for government and private benefits; 8.(i) for decisions in hospitals as defined by subdivision eighteen of section

twenty-nine hundred ninety-four-a of the public health law, act as the patient's

83

surrogate pursuant to and subject to article twenty-nine-CC of the public health

law, and (ii) in all other circumstances, to consent to or refuse generally accepted

routine or major medical or dental treatment, subject to the decision-making

standard in subdivision four of section twenty-nine hundred ninety-four-d of the

public health law;

9. choose the place of abode; the choice of abode must be consistent with the

findings under section 81.15 of this article, the existence of and availability of

family, friends and social services in the community, the care, comfort and

maintenance, and where appropriate, rehabilitation of the incapacitated person,

the needs of those with whom the incapacitated person resides; placement of the

incapacitated person in a nursing home or residential care facility as those terms

are defined in section two thousand eight hundred one of the public health law, or

other similar facility shall not be authorized without the consent of the

incapacitated person so long as it is reasonable under the circumstances to

maintain the incapacitated person in the community, preferably in the home of

the incapacitated person, and it is further

ORDERED AND ADJUDGED, that all persons, agencies and institutions

are directed and commanded to cooperate with and deliver to the guardian, upon

demand and presentation of a certified copy of the commission, all property of

the incapacitated person, of every kind and nature which may be in their

possession or under their control, and it is further

ORDERED AND ADJUDGED, that the Guardian shall pay $________ to

the New York Unified Court System for services rendered by Mental Hygiene

Legal Services herein to date, and it is further

84

ORDERED AND ADJUDGED, that the Guardian shall pay, Esq.

$________ for services rendered herein to date, and it is further

ORDERED and ADJUDGED, that shall receive reasonable compensation

in accordance with the dictates of Mental Hygiene Law Section 81.28; and it is

further

ORDERED AND ADJUDGED, that pursuant to Section 81.30 of the

Mental Hygiene Law no later than ninety (90) days after the issuance of the

commission to the guardian, the guardians shall file with the Court an initial

report in a form prescribed in this Order by the Court, with a copy furnished to

counsel for the parties hereto, and it is further

ORDERED AND ADJUDGED, that the guardian shall file during the month

of November, beginning in 2012 and during November of each year thereafter, in

the office of the Clerk of the Court an annual report in the form required by

Section 81.31 of the Mental Hygiene Law, and it is further

ORDERED AND ADJUDGED, that pursuant to Section 81.16(c)(3) of the

Mental Hygiene Law notice of further proceedings regarding this matter shall be

given to ______________, the guardian, and counsel for the parties hereto, and

it is further

ORDERED AND ADJUDGED, that pursuant to Section 81.16(e) of the

Mental Hygiene Law a copy of this order and judgment shall be personally

served upon and read to the incapacitated person by the guardian and it is

further

ORDERED AND ADJUDGED, that any appointee herein shall comply with

Section 35-a of the Judiciary Law and Part 36 of the New York Rules of Court

85

and no fee or commission shall be paid to such appointee until such appointee

has filed Office of Court Administration Form 830 with the Court, and it is further

ORDERED AND ADJUDGED, that pursuant to Section 81.39 of the

Mental Hygiene Law the training of the guardian of the Person and Property is

hereby waived, and it is further

ORDERED AND ADJUDGED, that the power of attorney executed by on

February 24, 2009 is revoked. and it is further

ORDERED AND ADJUDGED, that pursuant to Mental Hygiene Law

§81.16(e) the guardian shall personally serve and explain the Order to _______.

Dated: _______, 2011

Rochester, New York

__________________________ HON. Justice of the Supreme Court

Approved as to form: __________________________ . Approved as to form: ______________________

86

SUPREME COURT STATE OF NEW YORK COUNTY OF MONROE In the Matter of the Application of the Director of Social Services of the County of Monroe,

Petitioner, COMBINED CONSENT AND DESIGNATION

For the Appointment of a Guardian of the Person and Property of Index No: an Alleged Incapacitated Person. _______________________________________________ I, ________, the proposed Guardian in the above-captioned proceeding, being duly sworn, depose and say: (1) CONSENT: I hereby accept the appointment as guardian of the person and property of ___________ and consent to acting as such guardian under the terms and conditions set forth in the Order and Judgment in this proceeding. (2) DESIGNATION OF CLERK FOR SERVICE OF PROCESS: I hereby designate the Chief Clerk of the Seventh Judicial District of the Supreme Court of the State of New York in and for the County of Monroe, and the clerk’s successor in office, as a person on whom service of any process issuing from such Court may be made in like manner, and with like effect as if it were served personally upon me, whenever I cannot be found and served within the State of New York after due diligence used.

_________________________

Sworn to before me this ____ day of ____, ____ Notary Public

87

SUPREME COURT STATE OF NEW YORK COUNTY OF MONROE In the Matter of the Application of the Director of Index No: Social Services of the County of Monroe,

Petitioner, For the Appointment of a Guardian of the COMMISSION Person and Property of

__________, an Alleged Incapacitated Person.________________ THE PEOPLE OF THE STATE OF NEW YORK TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,

GREETINGS:

WHEREAS, _________was appointed Guardian of the Person and

Property of _________, an incapacitated person, by order and judgment of the

Honorable _________, Justice of the Supreme Court, on October 3, 2012; and

WHEREAS, said order and judgment and the papers on which it was

granted have been duly filed, along with the Guardian’s Consent and Designation

as ordered by the Court, and

WHEREAS, the Court has waived the filing of a bond specific to this

proceeding by the Guardian,

NOW, THEREFORE, be it known that the following powers to act as

Guardian of the person and property of the incapacitated person have been

granted, given and committed to _________:

PERSONAL NEEDS POWERS:

1. determine who shall provide personal care or assistance, including arranging transportation to meet the day to day needs if the incapacitated person;

88

2. make decisions regarding social environment and other social aspects of the

life of the incapacitated person; subject to the provisions pertaining to the right of

access by family members as set forth below.

3. determine whether the incapacitated person should travel out of Monroe County or its contiguous counties; 4. determine whether the incapacitated person should possess a license to drive; 5. authorize access to or release of confidential records; 6. make decisions regarding education; 7. apply for government and private benefits; 8.(i) for decisions in hospitals as defined by subdivision eighteen of section

twenty-nine hundred ninety-four-a of the public health law, act as the patient's

surrogate pursuant to and subject to article twenty-nine-CC of the public health

law, and (ii) in all other circumstances, to consent to or refuse generally accepted

routine or major medical or dental treatment, subject to the decision-making

standard in subdivision four of section twenty-nine hundred ninety-four-d of the

public health law;

PROPERTY MANAGEMENT POWERS:

25. make gifts;

26. provide support for persons dependent upon the incapacitated person for

support, whether or not the incapacitated person is legally obligated to

provide that support;

27. convey or release contingent and expectant interests in property, including

marital property rights and any right of survivorship incidental to joint tenancy

or tenancy by the entirety;

89

28. exercise or release powers held by the incapacitated person as trustee,

personal representative, guardian for minor, guardian, or donee of a power of

appointment;

29. enter into contracts, excluding the sale of the house;

30. create revocable or irrevocable trusts of property of the estate which may

extend beyond the incapacity or life of the incapacitated person;

31. exercise options of the incapacitated person to purchase securities or other

property;

32. exercise rights to elect options under insurance and annuity policies and to

surrender the policies for their cash value;

33. exercise any right to an elective share in the estate of the incapacitated

person's deceased spouse;

34. renounce or disclaim any interest by testate or intestate succession or by inter

vivos transfer consistent with paragraph (c) of section 2-1.11 of the estates,

powers and trusts law;

35. authorize access to or release of confidential records;

36. apply for government and private benefits;

37. marshall assets;

38. pay the funeral expenses of the incapacitated person;

39. pay such bills as may be reasonably necessary to maintain the incapacitated

person;

40. invest funds of the incapacitated person as permitted by section 11-2.3 of the

estates, powers and trusts law;

41. retain an accountant;

90

42. pay bills after the death of the incapacitated person provided the authority

existed to pay such bills prior to death until a temporary administrator or

executor is appointed;

43. defend or maintain any judicial action or proceeding to a conclusion until an

executor or administrator is appointed[;

44. Have full physical access to _________, including authority to enter his home;

45. sell Mrs. _________ real and personal property and use any proceeds for the

benefit of Mrs. ________

NAME AND ADDRESS OF THE INCAPACITATED PERSON: _________ NAME, ADDRESS & TELEPHONE # OF THE GUARDIAN:

_________ The duration of this commission is indefinite, without a fixed termination date. DATED: October_____, 2012

Rochester, New York

IN TESTIMONY WHEREOF, the Seal of the Monroe County Clerk has been affixed hereto.

_________Monroe County Clerk