You are here: / / Insufficient Evidence of Incapacity—Appointment of Guardian Reve...

Insufficient Evidence of Incapacity—Appointment of Guardian Reversed

The Second Department, reversing Supreme Court, determined there was insufficient evidence to support the finding that the allegedly incapacitated person (AIP) was in fact incapacitated:

In order for a court to exercise its authority to appoint a personal needs guardian, it must make a two-pronged determination (see Mental Hygiene Law § 81.02[a]…). First, the court must determine that “the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety” (Mental Hygiene Law § 81.02[a][1]). Second, the court must determine “that the person agrees to the appointment, or that the person is incapacitated” (Mental Hygiene Law § 81.02[a][2]).

With respect to the second prong, “[t]he determination of incapacity . . . shall consist of a determination that a person is likely to suffer harm because” (1) “the person is unable to provide for [his or her] personal needs” and (2) “the person cannot adequately understand and appreciate the nature and consequences of such inability” (Mental Hygiene Law §§ 81.02[b][1], [2]). In reaching its determination as to whether an individual is incapacitated, the court is required to “give primary consideration to the functional level and functional limitations of the person” (Mental Hygiene Law § 81.02[c]).

“A determination that a person is incapacitated . . . must be based on clear and convincing evidence” (Mental Hygiene Law § 81.12[a]; see Mental Hygiene Law § 81.02[b]). “The burden of proof shall be on the petitioner” (Mental Hygiene Law § 81.12[a]…).

Here, the petitioner failed to demonstrate, by clear and convincing evidence, that the AIP is incapacitated (see Mental Hygiene Law § 81.02[b]…). The testimony presented by the petitioner at the hearing failed to show that the AIP was unable to provide for his personal needs and that he was unable to adequately understand and appreciate the nature and consequences of any such inability … . The Supreme Court’s conclusion that the AIP “suffers from dementia” was not supported by the record. The petitioner’s medical expert testified that the AIP had not “evidenced . . . dementia” and was “capable of impressive cognitive functioning” … . Matter of Edward S. (Georgis-Corey), 2015 NY Slip Op 06351, 2nd Dept 7-29-15

 

You might also like
Criteria for Labor Law 200 Claim Explained
Law Office Failure Was Valid Excuse for Default—Answer Deemed Served in Absence of Cross Motion
PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER STAIRWAY SLIP AND FALL; DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS NEGLIGENT MAINTENANCE CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS STARTS WHEN THE PETITIONER’S ATTORNEY IS NOTIFIED OF THE CHALLENGED DETERMINATION, NOT WHEN PETITIONER IS NOTIFIED.
EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT.
ALTHOUGH PLAINTIFF WAS A MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WHEN HE STARTED THE LAWSUIT ASSERTING DERIVATIVE CAUSES OF ACTION, HE LOST STANDING TO CONTINUE WITH THE SUIT AFTER WITHDRAWING HIS MEMBERSHIP IN THE LLC (SECOND DEPT).
Condition Which Resulted in Plaintiff’s Injury Was Not the Cause of the Injury
Recovery Under the Doctrine of Quantum Meruit Was Proper—Proof of Damages Was Sufficient

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Petition for Late Approval (Eight Years Late) of a Settlement of a Third-Party... Only Documents Relevant to the Order/Judgment Appealed from Should Be in the...