Matter of Murray F.
Annotate this CaseDecided on April 11, 2005
Supreme Court, Kings County
In the Matter of MURRAY F., an incapacitated person
In the Matter of MARILYN F., an incapacitated person
109059/01
The guardian, Self Help Community Services was represented by Kenneth Churin, Esq. and the Incapacitated Persons were represented by Georgann Caporal, Esq. of Mental Hygiene Legal Services
Anthony J. Cutrona, J.
The incapacitated persons, by their attorney, Georgeann Caporal Esq. of Mental Hygiene Legal Services, move for an order removing the Guardian of the Person and Property of the incapacitated persons. Counsel basis her argument, inter alia, on the fact that a relative, Joseph Bono, Mr. and Mrs. F's brother in law, has stepped forward and is willing to be appointed guardian.
This is truly one of the most demanding cases that the Court has encountered in the Guardianship Part. It is a case study of the frustrations encountered in many of these situations, where, despite the best efforts of many different people, no solace can be found for the IPs or any of the other parties.
Background
Mr. and Mrs. F., who were married in 1975, first presented to the court on May 21, 2001 by way of a petition by City of New York's Human Resources Administration to have a guardian appointed for them. The City had gotten involved in this case by way of Protective Services for Adults, which stepped in when Mr. and Mrs. F. were the subject of eviction proceedings in Housing Court, because they owed over $5000.00 in rent notwithstanding the fact that Murray F. earned over $50,000.00 per year, sorting second class mail at his job at the Post Office, where he has worked for over 30 years.
According to medical evaluations submitted by the petitioner, Mr. F. was diagnosed with personality disorder, characterized by isolation, avoidance and paranoid behavior, obsessive-compulsive features, and a history of impulse control problems. There is also an indication that he is mentally retarded. Mrs. F. was diagnosed with probable mental retardation, not otherwise specified.
Evidence was presented to this court that Murray F. suffers from Collier Brothers Syndrome. In other words he is a hoarder. Their apartment at 7201 Bay Parkway, Brooklyn, was stacked floor to ceiling with magazines, newspapers, garbage, old mail (from the Post Office) etc. There was severe insect infestation. Moreover, there were two dogs in the apartment who were allowed to defecate and urinate in the house. In sum, the apartment was an unsanitary, unhealthy, disgusting mess. This description of the apartment was confirmed by several photographs taken by the court evaluator.
On February 14, 2002, this court signed orders and judgments appointing Self Help Community Services (hereinafter referred to as "Self Help") as guardian of the persons and [*2]property of Murray and Marilyn F. At that time, there was no one else who came forward to serve as guardian. Accordingly, the community guardian was appointed.
Problems ensued almost immediately. The guardian attempted to set up essential heavy duty cleanings of the apartment on several occassions but were thwarted by Mr. and Mrs. F. who refused access to their apartment. In an attempt to gain Mr. and Mrs. F. cooperation, the Court, by order dated January 17, 2003, appointed Michael Neville, Esq. of Mental Hygiene Legal Services (hereinafter referred to as "MHLS") to represent Mr. and Mrs. F. interests in the matter. It was arranged with Mr. Neville that he would go through the contents of the apartment with Mr. and Mrs. F., so as to ensure that nothing was being thrown out that was important and/or of value to them. It was also essential that the dogs be removed from the apartment as it was apparent that the couple could not adequately care for their needs and their presence was causing a health hazard. (Through this whole period, the landlord also had a holdover proceeding pending, because of the condition of the apartment and disruptive behavior by Murray F., such as walking naked in the common hallways. The court continued the stay of these proceedings on several occassions.)
These efforts on the part of the guardian, the court and Mr. Neville while achieving some results (a heavy duty cleaning was arranged and paid for by Self Help and performed by the New York City Department of Human Resources on December 12, 2002 resulting in the removal of approximately 250 bags of trash and other materials from the living room alone) barely scratched the surface of the problem. Any attempts to schedule additional cleanings were met with extreme agitation on the part of Mr. F., and distress by Mrs. F. Finally, on March 13th, 2003, this court was forced to grant Self Help's application for an access order for the apartment, to conduct inspections, repairs, cleaning and to remove any pets, if necessary without the permission of Mr. and Mrs. F. The Court also gave the guardian permission to obtain the assistance of the New York City Police Department, if necessary, to gain access to the apartment. In her affirmation in support of the application for an access order, dated December 26, 2002, Masha Friedman, ACSW, RG., Assistant Director of the Community Guardian Program for Self Help stated the following: In an attempt to address and cure the condition of Mr. and Mrs. F's apartment I arranged for a consultation on compulsive hoarding with Dr. Randy Frost (FROST) of Smith College, an expert in the treatment of compulsive hoarding syndrome. FROST and I personally visited Mr. and Mrs. F.'s premises in early July 2002 in an effort to engage them in a constructive discussion about their squalid and verminous environment. This attempt to address Mr. and Mrs. F.'s compulsive hoarding syndrome was a complete failure. Murray completely rejected the notion that his apartment was a dangerous fire and health hazard because of possessions and trash piled from floor-to-ceiling throughout the whole apartment. During the visit I observed mice all over the apartment as they skittered over the heaps of old newspapers and other assorted trash- there were mounds of mouse feces everywhere and every square inch of the apartment was infested with cockroaches...Both continue to believe that their apartment did not need, and does not need additional, heavy duty cleaning despite its obvious squalor. To make matters worse, Murray also manifests symptoms of Antisocial [*3]Personality Disorder, which renders him chronically irritable and inappropriately aggressive. In Murray, symptoms of Antisocial Personality Disorder are revealed by his repeated verbal assaults and threats of harm directed at me and all of Self help staff that have come in contact with him...Living with Mr. and Mrs. F., amidst the clutter and squalor, are two dogs that are matted, covered with feces and appear to be in ill health. I believe that the dogs never go outside because they urinate and defecate on the hallway floor that was covered with plastic bags that were taped to the floor...Marilyn, in denial that the apartment required cleaning, was walking on the dog feces with her bare feet while asserting that there was "nothing wrong" in cohabitating with, and maintaining dogs in this manner. Animal Rescue made two attempts to remove the dogs, but Marilyn refused to open the door.
Finally, due to the extraordinary efforts of everyone involved, Self Help was able to arrange for and have carried out heavy duty cleanings which greatly improved the condition of the apartment. Self Help rented storage units on Mr. and Mrs. F.'s behalf and moved much of the salvageable material that Mr. and Mrs. F. wanted to keep there. Unfortunately, Mr. F. began almost immediately to move items back into his apartment. This material, which had been infested with insects was brought back into the dwelling causing another serious cockroach problem.
During this whole process, continuing to the present, Mr. F. has continually harassed everyone involved with the case. He has deluged chambers, courtroom staff and clerks in the Guardianship Office with countless phone calls, letters and faxes. It would be no exaggeration to state that these communications number in the hundreds. He has often phoned chambers several times a day, and while he has never crossed the line by making threats against court personnel, he has often been loud and profane, both to my Law Clerk and Confidential Secretary. There have been days when it has been impossible to conduct any other business in chambers because of Mr. F's constant phone calls. While the heavy duty cleanings were taking place, the purpose of Mr. F's communications were to complain about the personal possessions that were being removed from his apartment. The Guardian has reported to the court that it's employees are also being harassed by Mr. F. and they have been subject to threats and physical abuse. As will be discussed later, Mr. F. has also expressed his dissatisfaction with other elements of the guardianship. At around the same time, Mr. Neville, a supervisor with MHLS, reassigned the case to a staff attorney.
Self Help also encountered tremendous difficulty in trying to gain control over Mr. and Mrs. F.'s money. As previously mentioned, Mr. F. is employed by the United States Postal Service. It has never been established how Mr. F. was able to obtain this job or maintain his employment, given his mental state. The court is aware however, that Mr. F. has a brother who works with him in the Post Office. (This brother has had no involvement with this case). On several occasions, Self Help attempted to having Mr. F's paycheck forwarded directly to the agency, but each time, Mr. F. was able to reverse the process and have his check delivered to [*4]himself, personally. Apparently, the problem was that the postal service had no procedure in place to deal with this type of situation, that of an incapacitated person with this type of full time position, which is admittedly, very unusual. During the time that Mr. F. remained in control of these funds, he did not pay the rent or stay current on many other bills. Mr. and Mrs. F. had been living beyond their means. They had eight "high risk" credit cards with monthly charges and substantial interest rates. They had six telephone accounts a contract for bottled water and a subscription to DirectTV. They ordered a Craftmatic adjustable bed for over $4000.00. As a result, Self Help was forced to effectively lend him the money by paying his obligations out of agency funds. To date, Self help has lent Mr. and Mrs. F. approximately $12,000 in this manner.
Notwithstanding all of these obstacles, Self Help has managed to stabilize Mr. and Mrs. F.'s living and financial situation. The apartment is now in relatively good shape. The landlord, who had been aggressively pursuing Mr. and Mrs. F.'s eviction and who had been appearing every time an issue relating to the Guardianship had come before the court, has been silent for quite some time. The guardian has facilitated Mr. and Mrs. F. finding doctors who take their insurance plan. Mr. and Mrs. F. are now on a budget and are living within their means. In addition to paying all of their bills, the guardian had been giving Mr. F. $350.00 per week for daily living expenses. When Mr. F. complained that he didn't have any money to take vacations, Self Help decided to reduce this amount to $250.00 and to place the other $100.00 in a vacation fund. The guardian also agreed to give Mr. and Mrs. F. extra money when Mr. F. works overtime, which he often does.
The institution of this budget has again caused Mr. F. to obsessively phone and fax the court, it's clerks and personal staff. There have also been reports of Mr. F. becoming both physically and verbally threatening to Self Help staff. In sum, the situation has become intolerable.
Is the court of the opinion that Self Help is perfect? No. The court, for example, is disappointed that the guardian has not pursued, more aggressively, services based upon their diagnosis' of mental retardation. (There has been testimony however, that Mr. F. has adamantly refused such services) Given the most difficult circumstances under which they have had to perform, the court feels that the guardian has more than adequately fulfilled its responsibilities.
Joseph Bono
Joseph Bono is married to Marilyn F's sister, and knows the couple for approximately 30 years. He has offered to assume the duties of Mr. and Mrs. F's guardian.
Mr. Bono has worked for Consolidated Edison for 45 years. He currently works in its computer training and applications department. Mr. Bono testified at the hearing on this application, that prior to the past year, he has visited Mr. and Mrs. F. 1 or 2 times in the last 25 years. He testified that he did not come forward immediately to serve as guardian because his wife, Marilyn F's sister, was undergoing cancer treatments, which understandably, took up most of his time and focus. He further testified that his wife has been in remission for 2 ½ years, which enables him to spend the necessary time to take care of Mr. and Mrs. F.'s needs. His wife however, has no communication with Mr. and Mrs. F and is not involved in their lives.
Since early, 2003, Mr. Bono, at the court's urging and assent, has been working as an intermediary between Mr. and Mrs. F. and Self Help and assisting in any way possible. Mr. Bono stated that he receives 3-4 voice messages from Mr. F., almost every day. He typically [*5]waits until evening to pick up these messages and then calls him back.
When Mr. F. testified in favor of this application, it was clear that he did not appreciate the necessity that he and his wife be put on a strict budget. It was obvious, in fact, that the major impetus for Mr. F. wanting to replace Self Help with Mr. Bono was his feeling that Mr. Bono would give him more money.
The Court is cognizant of the case law that states that a "stranger will not be appointed as guardian of an incapacitated person "unless it is impossible to find within the family circle, or their nominees one who is qualified to serve." Matter of Naquan S., 2 AD3d 531 (2d Dept. 2003). It has also been held however that "[t]he established preference for a relative may be overridden by a showing that the proposed guardian-relative has rendered inadequate care to the IP, has interests adverse to the IP or otherwise is unsuitable to exercise the powers necessary to assist the IP" Matter of Gustafson, 308 AD2d 305 (1st Dept, 2003)
While Mr. Bono's concern is greatly appreciated, it is this court's determination that given Mr. F's demanding, aggressive and belligerent behavior, coupled with the couple's substantial need for intensive supervision and services, it would be impossible for Mr. Bono, by himself, to adequately perform the guardian's duties. Furthermore, given Mr. Bono's 25 year indifference to Mr. and Mrs. F.'s plight, it is difficult to believe that he will now be willing and able to withstand this most difficult of tasks, which requires constant, even daily attention.
An example of the court's concern is contained in a status letter, dated December 26, 2002, from Masha Friedman of Self Help, to the court (written at the court's request). Mr. Bono, at the time was still caring for his wife, but was trying to provide limited assistance to the guardian. The letter states the following: Prior to the previously mentioned heavy-duty cleaning, Mr. Bono telephoned me to report that the condition of Mr. and Mrs. F's apartment had improved because Murray F. reportedly had removed ten (10) contractor's bags full of trash; he asserted that the apartment was sufficiently improved to cure the nuisance situation. Based upon Mr. Bono's assertions I was about to cancel the heavy-duty cleaning, but decided to first inspect the premises. My inspection was shocking; the premises were in appalling condition, in fact, it was far worse then when I had first seen it. In my estimation the clutter had increased by at least fifty percent (50%); it became obvious to me that Mr. Bono's attempts at intervening in the matter, while perhaps well intentioned, were not based upon any first hand knowledge nor on any insight into the problem presented by the task of preserving Mr. and Mrs. F's tenancy and the prevention of their becoming homeless.
The court was also distressed by another aspect of Mr. Bono's testimony with respect to this application. He stated that if he were made guardian, his plan would be to put Mr. F's money in a bank account and let him draw what he needs himself, using the remainder to pay outstanding bills. This "plan" showed a total lack of understanding as to Mr. F's mind set and psychological condition. Mr. F. has repeatedly shown that he is totally incapable of managing money. Any money put into a bank account would surely be removed by Mr. F. immediately, causing the couple serious financial difficulties.
These passages point up the overwhelming nature of being Mr. and Mrs. F.'s guardian and [*6]the danger of submitting to Mr. F's will when he harasses and bothers. It is this court's determination that Mr. Bono, through no fault of his own, will not be able to properly carry out the functions of guardian for Mr. and Mrs. F.
Finally, as previously mentioned, this court appointed Mental Hygiene Legal Services in January, 2003 to assist in getting Mr. and Mrs. F. to cooperate with the necessary heavy duty cleanings. Due to the constant problems associated with this guardianship, the court decided to maintain MHLS' representation of Mr. and Mrs. F. to act as a buffer between Mr. and Mrs. F., Self Help and the court. As a result, Mr. and Mrs. F. have had free legal counsel for approximately 1½ years, a benefit provided to no other Incapacitated Person in a Guardianship case before the court.
It is now an appropriate time to end this relationship. The constant tension between Self Help and Mr. and Mrs. F.'s counsel has hindered the guardian in properly and professionally carrying out it's function. The court praises Mental Hygiene Legal Services' efforts in this most difficult of cases and appreciates the "no win" situation that it was placed in, by being put in a situation of trying to execute Mr. F.'s wishes. It is now time to let Self Help do its job. It is therefore the court's order that Mental Hygiene Legal Services is discharged as counsel for Mr. and Mrs. F. for all purposes, except for conclusion of litigation of this application.
Accordingly, for all of the reasons stated above, the application to remove Self Help Community Services as guardian in this case is denied.
This shall constitute the decision and order of the court.
_______________________
J.S.C.
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