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Court Decides Guardianship Hearing


A New York Family Lawyer said that, a petition has been filed for the appointment of a guardian of the person and property of an alleged incapacitated person (hereinafter known as “the person”). This Court is satisfied that the person was served with the order to show cause and petition by personal delivery at least fourteen days prior to the return date and that all other necessary interested persons required to be served under Mental Hygiene Law section 81.07 were timely served with the order to show cause and petition. Melissa Lucas, Esq., was appointed to serve as the court evaluator.

A New York Custody Lawyer said the hearing was held on October 25, 2011 and December 7, 2011. The person was not present at the hearing. It was determined that he would not be able to meaningfully participate in the proceedings even if they were conducted at his bedside because he is on a trachea tube and is non-responsive. Accordingly, his presence was waived. The person’s son, the person’s other son, the person’s companion, the person’s son-in-law, the person’s brother, the person’s daughter who is the petitioner herein, and the court evaluator testified at the hearing.

A Bronx Family Lawyer said that, the person is 73 years of age. The person presently resides at Bronx, New York. The person was admitted to the nursing home on or about December 21, 2010. The person suffered a stroke (his third) while he was in Puerto Rico on or about September 15, 2010. His daughter, the petitioner, moved him from a hospital in Puerto Rico to Bronx Lebanon Hospital. He was then discharged to the nursing home. The person is currently in a vegetative state and is generally non-responsive. He has a trachea tube extending from an incision in his neck to a machine next to his bed to help him breathe. He is completely dependent on nursing staff for all of his activities of daily living. He has substantial assets including real property and a business in Puerto Rico but is unable to manage his finances, pay his bills or continue to run his business. As a result, the person is in need of someone to provide for his personal needs and property management. The guardianship is required for an indefinite duration.

A Bronx Guardianship Lawyer said that, after several adjournments, the guardianship hearing commenced on October 25, 2011. Petitioner had retained new counsel who requested an adjournment on that day to prepare for the guardianship hearing. However, there were family members who flew to New York from Florida and Puerto Rico to attend the hearing and offer testimony. Accordingly, at the court’s direction, the court evaluator called three witnesses to testify.

A Bronx Child Custody Lawyer said the person’s adopted son, stated that he resides in Florida. He stated that he objected to petitioner, being appointed as the guardian of the person and property of his father. He stated that he did not believe petitioner was looking out for the person’s well-being by failing to take taking into consideration a support system that would include everyone in his care. The adopted son stated that he had been denied access to information as to the person’s whereabouts and his health for the past seven (7) months. Petitioner was aware of the person’s stroke but failed to contact him. He found about his father’s stroke through his wife who became aware of it through a social network. He stated that he is not as close to the petitioner and his other two sisters, as he should be. When he found out the person was at a nursing home, he went to visit him but encountered resistance from the staff when he asked for any information about the person. He was informed by nursing home staff that if he wanted information about the person, he would have to get it through the petitioner.

A Bronx Order of Protection Lawyer said that, the court evaluator stated that there was no question that the person was incapacitated and required the appointment of a guardian of his person and property. With respect to whom should be appointed to serve as the guardian, the court evaluator recommended that petitioner be appointed to serve as the guardian of the person and property as long as she is able to qualify for a bond. The court evaluator also recommended that an independent co-guardian be appointed due to the contentious relationship between the petitioner and her siblings.

A Bronx Family Lawyer said that, the court evaluator expressed her concern over the fact that petitioner has not permitted the family to have access to the person and did not contact his sons after he was moved to New York. Additionally, petitioner has informed the nursing home staff that the person’s other son was not permitted to ask them any questions about the person. The court evaluator further stated that the person has maintained a thirty (30) year relationship with him and she was informed by a niece that the person and he held themselves out as husband and wife. They have joint bank accounts and jointly own an apartment in Manhattan. Although he expressed an interest in serving as guardian, she later informed the court evaluator that she was not able to obtain an attorney and her own health has faltered due to the contention with petitioner. The court evaluator was also concerned that if an independent co-guardian was not appointed, him would not be able to see the person and be involved in his care. She stated that the person responds to her and they had a loving relationship and she should be involved in his care. The court evaluator opined that an independent co-guardian would be able to mediate between the family members.

The issue in this case is whether the petition for guardianship should be granted.

Upon the testimony adduced at the hearing and the documents submitted, as well as the court evaluator’s recommendation, the person’s daughter, is hereby appointed the guardian of the person and property.

Pursuant to Mental Hygiene Law §81.19(d)(2), in making the appointment of a guardian, the court shall consider, “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.” Although petitioner is appointed the sole guardian of the person and property, it is apparent to this court that the person’s sons and the other person’s son care about the person, his health and welfare. The court evaluator noted that the person responds to him and she and the person had a close, loving relationship for many years. Accordingly, bearing in mind petitioner’s duties as guardian, she shall not be permitted to deny the person’s children, other family members, and her children, access to the person. Petitioner shall permit them to visit the person and she shall keep the person’s children, as well as the person’s other son apprised of the person’s health and overall medical condition. Additionally, if the guardian decides to relocate the person to another facility or other location, she shall inform the person’s children and of his whereabouts.

The guardian of the person is granted those powers listed under Mental Hygiene Law §81.22 which are necessary and sufficient to provide for the personal needs of the person. Those powers include as follows: 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 in accord with this court’s directive that the guardian not be permitted to deny the person’s other children, and her children, access to 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 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) determine whether the person should travel;

h) defend or maintain any civil judicial proceeding.

The guardian of the property is granted those powers listed under Mental Hygiene Law §81.21 which are necessary and sufficient to provide for the management of the person’s assets. Those powers include as follows: 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 marshall 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; 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 made 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) pay funeral expenses.

These powers constitute the least restrictive form of intervention consistent with the person’s functional limitations. The guardian of the property 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 with respect to the 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 §81.25 of the Mental Hygiene Law. The amount of the bond shall be the total value of the person’s assets. The guardian shall receive as compensation for performing her duties that compensation as is provided under §81.28 of the Mental Hygiene Law and as approved by the Court. The court evaluator may make application to this court for her fees to be paid out of the person’s assets.

The guardian shall file an interim 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. Failure to file said reports may result in the removal of the guardian. Failure of the guardian to comply with this court’s directives regarding access to the person by family members and her children, may also result in the removal of the guardian.

Accordingly, the court held that, petitioner is directed to submit an order and judgment on notice, along with a copy of this decision, in accordance with Mental Hygiene Law §81.16(c) and the guardian is directed to file her designation in accordance with Mental Hygiene Law §81.26. Said order and judgment shall be submitted in a timely fashion due to the exigency of these proceedings.

If you wish to file for guardianship, seek the help of a Bronx Guardianship Attorney and Bronx Order of Protection Attorney at Stephen Bilkis and Associates. Call us now.

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