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POWERS GRANTED TO THE GUARDIAN FOR AN INCAPACITATED PERSON SHOULD NOT HAVE EXCEEDED THOSE RECOMMENDED BY THE COURT APPOINTED EVALUATOR (SECOND DEPT).

The Second Department determined Supreme Court properly appointed a guardian for an incapacitated person, but should not have granted powers to the guardian over and above the powers recommended by the court-appointed evaluator:

Mental Hygiene Law § 81.11(f) provides that “[i]f on or before the return date designated in the order to show cause the alleged incapacitated person or counsel for the alleged incapacitated person raises issues of fact regarding the need for an appointment under this article and demands a jury trial of such issues, the court shall order a trial by jury thereof.” Mental Hygiene Law § 81.11(f) further states that “[f]ailure to make such a demand shall be deemed a waiver of the right to trial by jury.” …

Nevertheless, the judgment must be modified since the broad powers granted to the appointed guardian are inconsistent with the statutory requirement that the guardian 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[2]; see Mental Hygiene Law § 81.03[d]). Under the circumstances presented, the Supreme Court should have granted the guardian only those limited powers recommended in the report of the court-appointed evaluator. Matter of Heidi B. (Pasternak), 2018 NY Slip Op 06899, Second Dept 10-17-18

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