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Best Interest of the Incapacitated Person Justified Removal of Guardian of Person and Property

The Second Department determined Supreme Court properly exercised its broad discretion in granting the cross-motion to remove the guardian of Helen S.’ person and property (pursuant to Mental Hygiene Law 81.35). Helen S. testified that the guardian yelled and screamed at her, made her very nervous and upset causing her body to shake, and causing her to throw up. The court explained the relevant analytical criteria:

A guardian may be removed pursuant to Mental Hygiene Law § 81.35 when ” the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just'” … . “The trial court is accorded considerable discretion in determining whether a guardian should be replaced,” and the “overarching concern remains the best interest of the incapacitated person” … .  Matter of Helen S. (Falero), 2015 NY Slip Op 06153, 2nd Dept 7-15-15

 

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