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THE GUARDIAN’S ILLNESS PRECIPITATED THE PETITION TO REMOVE HER; UPON HER RECOVERY THERE WAS NO JUST CAUSE FOR HER REMOVAL; PETITION DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence did not support the removal of the incapacitated person’s (Frank’s) wife, Zita, as the guardian of the person and property of Frank. The removal petition, brought by Frank’s daughter, Tara, was dismissed:

In December 2022, the wife was temporarily hospitalized, which precipitated the petition … to remove her as guardian of the person and property of the incapacitated person. …

The determination “to remove a guardian of the person and property of an incapacitated person pursuant to the Mental Hygiene Law is addressed to the sound discretion of the Supreme Court” … . The “overarching concern remains the best interest of the incapacitated person” … . “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” … .

Here, the Supreme Court improvidently exercised its discretion in removing the wife as guardian of the person and property of the incapacitated person (see Mental Hygiene Law § 81.35). The wife’s temporary medical crisis that had precipitated the petition was resolved, and the petitioner failed to demonstrate that any of the wife’s actions regarding the incapacitated person’s care were a just cause for removal … . Matter of Frank M. (Zita C.–Tara M. M.), 2026 NY Slip Op 02116, Second Dept 4-8-26

Practice Point: Other than the guardian’s illness, there was no support for her removal as guardian. Her recovery, therefore, warranted dismissal of the removal petition.

 

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