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THE INCAPACITATED PERSON’S SON SHOULD NOT HAVE BEEN REPLACED AS GUARDIAN BY A NON-FAMILY-MEMBER IN THE ABSENCE OF A TESTIMONIAL HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Incapacitated Person’s (IP’s) son should not have been removed as guardian and replaced with a non-family-member in the absence of a testimonial hearing:

Rather than hold a testimonial hearing, Supreme Court simply accepted what the Court Examiner claimed in her motion. The Court did not make any findings of fact or conclusions of law to justify the removal of petitioner. Nor did it hold that removal of the petitioner was in the best interest of the IP. Petitioner did not have any opportunity to testify under oath, or rebut the allegations made against him, despite his competency as a guardian being directly at issue … . A testimonial hearing in this case is necessary so that the record can be developed, and the disputed issues of fact and law can be resolved.

We have long recognized that strangers will not be appointed either a guardian of the person or the property unless it is impossible to find someone within the family circle who is qualified to serve  … . The preference for a relative may be overridden by a showing that the guardian-relative has rendered inadequate care to the IP, has an interest adverse to the IP or is otherwise unsuitable to exercise the powers necessary to assist the IP … . Moreover, the ultimate remedy of removal may be an abuse of discretion, where a guardian’s errors do not prejudice or harm the estate. The court should also consider whether other less drastic remedies, such as ordering compliance or reducing the guardian’s compensation, would be appropriate. Matter of Roberts v Maxis, 2021 NY Slip Op 05833, First Dept 10-26-21

 

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