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ALTHOUGH AURELIA S WAS PROPERLY FOUND TO BE AN INCAPACITATED PERSON, THE POWERS AWARDED THE GUARDIAN WERE TOO BROAD (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the powers awarded to the guardian of the incapacitated person, Aurelia S, were too broad:

… “[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/or property management” and (2) “the person cannot adequately understand and appreciate the nature and consequences of such inability” (Mental Hygiene Law § 81.02[b] …). In reaching its determination, the court shall give primary consideration to the functional level and functional limitations of the person (see Mental Hygiene Law § 81.02[c]). Significantly, any guardian appointed shall be granted “only those powers which are necessary to provide for personal needs and/or property management of the incapacitated person in such a manner as appropriate to the individual and which shall constitute the least restrictive form of intervention” (Mental Hygiene Law § 81.02[a][2]).

… [T]he broad powers granted to the appointed guardian are inconsistent with the statutory requirement that the guardian be granted “only those powers which are necessary” and “which shall constitute the least restrictive form of intervention” (Mental Hygiene Law § 81.02[a][2] … ). Under the circumstances presented, the Supreme Court should have appointed a guardian only to manage Aurelia S.’s property and financial affairs, which shall have the following limited powers: (1) apply for, establish, and maintain eligibility for the maximum amount of government and private benefits; (2) marshal and manage income and assets; (3) enter into contracts, subject to prior court approval; (4) invest funds with the same authority as a trustee pursuant to EPTL 11-2.2; and (5) investigate any misappropriation of funds of Aurelia S. and take appropriate action. Matter of Aurelia S., 2020 NY Slip Op 04560, Second Dept 8-19-20

 

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