Matter of A.C.
Annotate this CaseDecided on August 1, 2006
Supreme Court, Bronx County
In the Matter of the Appointment of a Guardian for A.C., a Person Alleged To Be Incapacitated.
92080/06
Alexander W. Hunter, J.
A petition has been filed for the appointment of a guardian of the person and property of A.C., an alleged incapacitated person (hereinafter known as "the person"). The Court, having been satisfied that the person was served with the order to show cause and petition by personal delivery at least fourteen days prior to the return date, and that all necessary interested persons were served with the order to show cause and petition pursuant to Mental Hygiene Law section 81.07, appointed a court evaluator from Mental Hygiene Legal Service, Barbara V. Gurley, C.S.W.
The hearing was held on July 26, 2006. The person was present at the hearing and represented by an attorney she retained, named Arthur J. Soong, Esq. B.C., the person's daughter and petitioner herein, Mark R. Novick, M.D., and L.W., the person's grandniece, testified at the hearing. Dr. Novick was appointed by this court to examine the person, at the request of the court evaluator.
FINDINGS OF FACT
The person is 87 years of age. The person presently resides alone at her home located at XXXXX, Bronx, New York 10466.
The person has physical limitations and requires a great deal of assistance in managing her activities of daily living. She is unable to walk or stand due to chronic arthritis. However, the person receives assistance from a home attendant who visits the person's home daily. The person also receives assistance from her nieces.
The person's income and assets consist of a two-family home which she owns free of a mortgage, wherein she currently resides. She also inherited a joint share in a residential building located at 1012 East 212th Street in Bronx County. The property at East 212th Street was owned by the person's deceased husband and his business partner who also died recently. The property is assessed at over $500,000. However, there is ongoing litigation involving that property as the heirs of the deceased business partner are suing the person as the administrator and executor of her deceased husband's estate. The person also has accounts at Chase Manhattan Bank with a total of approximately $79,000. The person receives social security in the amount of $928 per month, a pension from the District Council Carpenters in the amount of $270 per month and a United Here retirement pension in the amount of $106.80 per month.
The person executed a health care proxy on February 18, 2005, appointing her grandniece, L.W., and nephew F. P.A., as her health care agents. Her daughter B.C. was [*2]appointed her substitute proxy. The person also possesses a will but has not executed a power of attorney.
B.C., the person's daughter, testified that she is the only child of the person. Ms. C. is currently retired and resides in Kissimmee, Florida. Prior to retiring and moving to Florida, Ms. C. worked as a certified nurse's aid at Split Rock Nursing Home for thirty-two years. She resided at XXXX, the building owned by her stepfather, until she retired and left New York permanently to move to Florida in November of 2004. She retired from her employment in December 2002 and went back and forth from Florida to New York until November 2004. She claims to have had "good interaction" with her mother when she resided in New York. She visited her once or twice a week and called her on the telephone regularly. She continued to have a good relationship with the person even after she moved to Florida. She asserts that the person suffered a fall in 1998 wherein she hit her head and began to lose her ability to speak clearly.
Ms. C. stated that the person was very independent between the years 2000 and 2003. Ms. C. asserts that currently, the person is unable to manage her financial needs because she is "getting more confused." She noticed the person's confusion when she visited her last year. Ms. C. states that when she visited the person, the person observed a man standing in the corner of her home and she was screaming for the man to get out of the apartment. Ms. C. stated that there was no man standing in the corner of the person's apartment. Ms. C. states that between the years 2003 and 2005, the person's spending habits changed in that she began giving large sums of money to family members even though she has never done so in the past.
Ms. C. states that when her stepfather was alive and ill, she visited New York periodically to see him. She stayed for several weeks at a time and sometimes for over a month. In July 2005, she came to New York for "over a month," returned to Florida, then came back to New York in September 2005 for two weeks. When she lived in her stepfather's building, she stated that she sometimes did not pay the rent nor did she assist the person with her daily activities because the person had a home attendant and she felt she was not needed.
The person's attorney introduced into evidence as Respondent's Exhibit A, a check dated August 9, 2005, made out to Ms. C. in the amount of $3,000. Ms. C. admitted that she assisted her mother in signing the check because her mother asked her to. Ms. C. stated that she used the money to fix a room inside her home in Florida for the person. She states that she discussed it with the person but that the person did not ask her to fix up a room for her . If appointed guardian, Ms. C.'s plan is to take the person to Florida to live with her even though the person does not want to move to Florida.
Dr. Novick examined the person on July 20, 2006. He interviewed her in her home in the presence of her attorney and home attendant, V.W. Dr. Novick admits that at times, he was unable to hear the person when she spoke and the home attendant helped him understand what the person was saying. Dr. Novick stated that the person knew the purpose of his examination. She stated that it was related to her daughter B's attempt to get her money. She knew the value of her estate to be about $80,000. She knew that she received social security and a pension but was not sure of the exact amounts. The person informed Dr. Novick that her niece, G.S., was staying with her and helping her with her finances as well as writing checks. Dr. Novick states that the person could barely write her own signature because she has severe arthritis.
In his report, Dr. Novick states that the person was oriented to herself, she knew the [*3]month and day, she could repeat names, numbers and objects that were told to her, and she recalled three items told to her to repeat. She could describe her daughter and grandchildren and provide their names. She knew her husband had passed away. She had difficulty with some formal cognitive testing such as subtracting serial 7's and she could only subtract three sets of serial 3's. She also performed poorly with other calculations such as making change. The person told Dr. Novick that she knew she had a health care proxy and she informed him that her niece, L., was designated to be her agent. She stated that she did not have a power of attorney but understood that it involved someone who would help her pay her bills and take care of her finances. She informed Dr. Novick that such a power could be issued to her niece G.S.
Dr. Novick concluded that the person has a mild to moderate degree of cognitive impairment but she is otherwise able to make decisions regarding her own care and is capable of taking responsibility for her finances. He indicated in his report that she is "comfortable and familiar with her present surroundings, and her physical and medical needs are attended to well." He also indicated that it would be "damaging" to her to change her present living arrangements and it would be in her best interest to remain in her own home. Dr. Novick further concluded that if the person has not done so, she is competent enough to execute a power of attorney and a health care proxy. Dr. Novick's report was admitted into evidence as Petitioner's Exhibit 1.
The person's grandniece, L.W., stated that she resides in Springfield, Massachusetts and visits the person approximately once a month. She assists the person with her activities of daily living such as bathing, putting in her dentures and making telephone calls. She also assists the person with paying her bills and writing her checks. She admitted that in April of 2004, the person gave her a check in the amount of $5,000 and told her that she wanted her to have it. She also stated that on that same day, she assisted the person in writing out checks for the same amount to her mother and brother. She stated that the person signed the checks and she wrote them out. Receipts for the checks were admitted into evidence as Petitioner's Exhibits 2 and 3.
The court evaluator recommended that a guardian not be appointed for the person as a result of Dr. Novick's evaluation.
CONCLUSIONS OF LAW
At the close of the petitioner's case, the person's attorney made a motion to dismiss the petition, as she had not met her burden. That motion was granted by this court after due deliberation and consideration of the testimonial evidence and documents submitted during petitioner's case. The petitioner, with a view of the evidence most favorable to the petitioner, failed to meet her prima facie burden of establishing that the person is likely to suffer harm because she is unable to provide for her personal needs and property management and she cannot adequately understand and appreciate the nature and consequences of her inability. Mental Hygiene Law §81.02(b)(1) and (2).
The medical testimony and evidence adduced indicate that the person is competent enough to make decisions for herself. Even though she has physical limitations which affect her ability to conduct her activities of daily living on her own, she receives adequate assistance from her home attendant. She has a health care proxy in place that she executed on February 18, 2005 to provide for her personal and medical needs. Moreover, the evidence establishes that she is competent enough to execute a power of attorney and select a person of her own choosing to serve in that capacity. She is fully aware of her finances and assets and it is her choice to decide [*4]whom she wants to give her money to and in what quantity.
The only testimony with respect to alleged functional limitations or incapacity was provided by her daughter who admittedly has been residing in Florida since November of 2004 and only visits from time to time. The medical testimony contradicts the allegations of incapacity made by the petitioner.
Mental Hygiene Law §81.02 states, with respect to the appointment of a guardian, "In deciding whether the appointment is necessary, the court shall consider...the sufficiency and reliability of available resources, as defined in subdivision (e) of section 81.03 of this article..." Mental Hygiene Law §81.03(e) defines "available resources" as: "...powers of attorney, health care proxies..."
The person executed a health care proxy on February 18, 2005 naming her grandniece L.W. and her nephew, F. P. A., as her agents. There was no evidence to indicate that the person was incapacitated in February of 2005 or that she was unduly influenced by her family members when she signed that document, as the petitioner alleges.
It has been established that it would be an abuse of the court's discretion to revoke a power of attorney or health care proxy unless there is evidence that the holder of these documents engaged in conduct that would justify revocation. In re Isadora R., 5 AD3d 494 (2nd Dept. 2004). Absent any evidence at the hearing that would justify invalidating the health care proxy that is currently in place, this court finds that the person has effectuated a plan for her medical and personal needs that would obviate the appointment of a guardian over her person. Moreover, the person has the ability to execute a power of attorney, if she so chooses, and select an attorney-in-fact, to assist her with her financial needs.
Mental Hygiene Law section 81.09(f) states, "When a judgment denies or dismisses a petition, the court may award a reasonable allowance to a court evaluator, including the mental hygiene legal service, payable by the petitioner or by the person alleged to be incapacitated, or both in such proportions as the court may deem just." See also, Matter of Petty, 256 AD2d 281 (1st Dept. 1998); Matter of Geer, 234 AD2d 939 (4th Dept. 1996). This court finds that the fees of the court evaluator should be borne by the petitioner, B.C.
Accordingly, the application for the appointment of a guardian of the person and property is hereby denied.
Settle order.
This constitutes the decision and order of this court.
Date: August 1, 2006
J.S.C.
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