Supreme Court Erred In Refusing to Appoint a Guardian—However, Petitioner Was Not the Appropriate Choice for the Guardian

Reversing Supreme Court, the Second Department determined the appointment of a guardian for Mae R, who was 91, was necessary. The Second Department further found that the petitioner was not the appropriate choice for a guardian.  [In addition, the court noted that, in absence of bad faith, it was an abuse of discretion for Supreme Court to order petitioner to pay the fees for the court evaluator and appointed attorney.]  The court explained the relevant law and the facts:

Under Mental Hygiene Law article 81, a court may appoint a guardian for a person or a person's property upon determining, by clear and convincing evidence, that the requirements of article 81 have been met (see Mental Hygiene Law §§ 81.02[a][2], 81.12[a]…). Before a court may appoint a guardian, it must determine (1) that a guardian is “necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person”; and (2) that “the person agrees to the appointment, or that the person is incapacitated” within the meaning of the statute (Mental Hygiene Law § 81.02[a][1], [2]…). The statute specifies the relevant considerations and issues in the determination of the need for a guardian, and expressly requires that the court consider the report of the court evaluator (see Mental Hygiene Law § 81.02[a]) and the “sufficiency and reliability of available resources” that may satisfy the needs of the proposed ward without requiring the appointment of a guardian (Mental Hygiene Law § 81.02[a][2]…). Even where the court finds that appointment of a guardian is necessary, it is not required to appoint the person proposed by the petitioner … .

Here, contrary to the Supreme Court's determination, which rejected the recommendation of the court evaluator, the petitioner demonstrated by clear and convincing evidence that Mae R. is an incapacitated person as defined in Mental Hygiene Law § 81.02(b). The evidence at the hearing established that Mae R., a 91-year-old woman who presently resides by herself in her two-family home in Queens, is likely to suffer harm because she is unable to provide for her personal needs and manage her property, and does not adequately understand and appreciate the nature and consequences of her limited abilities (see Mental Hygiene Law § 81.02[b][1], [2]…).

The evidence established, among other things, that, until recently, Mae R. managed her person and property with the daily assistance of a tenant who previously resided with her, and Mae R.'s grandniece, both of whom testified at the hearing and were interviewed by the court evaluator. The evidence further established that, subsequently, Mae R. executed a health care proxy and power of attorney in favor of a neighbor, and a last will and testament bequeathing her entire estate to this neighbor, who procured the attorney who drafted the alleged directives and testamentary instrument. At an interview with the court-appointed evaluator, however, Mae R. did not recall issuing the directives and testamentary instrument. Indeed, she told the court-appointed evaluator that she wished to leave her estate to family members. Further, witnesses at the hearing had heard Mae R. say that the same neighbor “makes me say things I don't mean and then I forget.” Matter of Loftman …, 2014 NY Slip Op 08998, 2nd Dept 12-24-14