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EVIDENCE DID NOT SUPPORT THE APPOINTMENT OF MOTHER AS GUARDIAN OF FRITZ, A PERSON SUFFERING FROM SCHIZOPHRENIA, HOWEVER MOTHER IS NOT PRECLUDED FROM SEEKING ANY APPROPRIATE ASSISTANCE FOR FRITZ (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition for an the appointment of a guardian for Fritz, a person suffering from schizophrenia, should not have been granted on the evidence presented:

The Supreme Court may appoint a guardian for a person if the court determines that the appointment is necessary to provide for the person’s personal needs or to manage his or her property and financial affairs, and the person either agrees to the appointment or is incapacitated … . In determining whether the appointment of a guardian is necessary, the court must consider the report of a court evaluator as well as the sufficiency and reliability of resources that may be available to provide for personal needs or property management absent the appointment of a guardian … . A determination of incapacity must be based on clear and convincing evidence and must consist of a determination that a person is likely to suffer harm because he or she is unable to provide for personal needs or property management and cannot adequately understand and appreciate the nature and consequences of such inability … . Moreover, a guardian should be appointed only as a last resort, where no available resources or other alternative will adequately protect the alleged incapacitated person … .

Here, the evidence at the hearing consisted only of the petitioner’s (Fritz’s mother’s) testimony regarding Fritz G.’s mental illness, and a cursory report and testimony of the court evaluator, who had only one brief conversation with Fritz G. by telephone. This evidence failed to establish that Fritz G. was incapacitated. Moreover, the Supreme Court failed to consider less restrictive options than appointment of a guardian. Accordingly, that branch of the petition which was to have the petitioner appointed as the guardian of the person of Fritz G. should have been denied. Nevertheless, it was clear from the petitioner’s testimony that Fritz G. is in need of assistance, and the parties’ attorneys specifically mentioned the possibility of assisted outpatient treatment to address those needs. The petitioner’s failure to establish, on this record, the necessity of Mental Hygiene Law article 81 guardianship does not preclude her from seeking any appropriate assistance for Fritz G. Matter of Fritz G., 2018 NY Slip Op 05592, Second Dept 8-1-18

MENTAL HYGIENE LAW (EVIDENCE DID NOT SUPPORT THE APPOINTMENT OF MOTHER AS GUARDIAN OF FRITZ, A PERSON SUFFERING FROM SCHIZOPHRENIA, HOWEVER MOTHER IS NOT PRECLUDED FROM SEEKING ANY APPROPRIATE ASSISTANCE FOR FRITZ (SECOND DEPT))/GUARDIANSHIP (EVIDENCE DID NOT SUPPORT THE APPOINTMENT OF MOTHER AS GUARDIAN OF FRITZ, A PERSON SUFFERING FROM SCHIZOPHRENIA, HOWEVER MOTHER IS NOT PRECLUDED FROM SEEKING ANY APPROPRIATE ASSISTANCE FOR FRITZ (SECOND DEPT))

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