Matter of JS

[*1] Matter of JS 2009 NY Slip Op 51328(U) [24 Misc 3d 1209(A)] Decided on June 29, 2009 Supreme Court, Nassau County Diamond, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 2, 2009; it will not be published in the printed Official Reports.

Decided on June 29, 2009
Supreme Court, Nassau County

In the Matter of the Application of John E. Imhof, Ph.D., as Commissioner of the Nassau County Department of Social Services, Petitioner, for the Appointment of a Guardian for JS, An Alleged Incapacitated Person



029341-I-2009



Petitioner

NASSAU COUNTY DEPARTMENT OF

SOCIAL SERVICES

60 Charles Lindbergh Blvd., Ste 160

Uniondale, New York 11553

Att: SCOTT A. SMITH

Court Evaluator

EDWARD F. CUNNINGHAM, ESQ.

62 Cambridge Ave.

Garden City, New York 11530

Attorney for IP

DAVID A. SMITH, ESQ.

500 Old Country Road, Suite 109

Garden City, New York 11530

Temporary Guardian

ABRAMS, FENSTERMAN, FENSTERMAN, FLOWERS, GREENBERG & EISMAN, LLP

1111 Marcus Ave., Suite 107

Lake Success, NY 11042

Att: ELLEN FLOWERS, ESQ.

Attorney for Debra and Anthony Guida

THOMAS A. HYNES, ESQ.

114 Old Country Rd., Suite 960

Mineola, New York 11501

Attorney for AS, , Kathy, Chris & Beth JS

BARBARA ALBOM, ESQ.

591 Broadway 3A

New York, New York 10012

Arthur M. Diamond, J.

This Article 81 of the Mental Hygiene Law proceeding for the Appointment of a Guardian of JS, an Alleged Incapacitated Person (hereinafter "AIP"), was brought by John E. Imhof, PH.D., Commissioner of the Nassau County Department of Social Services, on April 15, 2009.

The AIP is an 80 year old, (DOB 3-14-29) Caucasian male, who suffers from dementia causing short-term and long-term memory loss. He resides in a single family home, at 110 South Fordham Road, Hicksville, New York 11801 and currently has a live-in aide which was provided for him by the Temporary Guardian after her appointment. The AIP is estranged from his former wife, AS, and their four adult children. The AIP executed a Durable General Power of Attorney (hereinafter referred to as "DPOA") dated March 5, 2009, appointing his neighbor, Debra Guida of 29 Sylvia Road, Plainview, New York 11803, as his attorney-in-fact with her husband Anthony C. Guida as alternate. On June 2, 2009, prior to the commencement of this hearing, the AIP nominated Debra Guida in open court for the appointment of a Guardian of his Person and Property. under Mental Hygiene Law § 81.21. The written nomination presented to the court was conditioned upon the AIP being found to be a "Person in Need of a Guardian," rather than an "Incapacitated Person." The Nassau County Department of Social Services (hereinafter referred to as DSS) objected to the appointment of Mrs.. Guida which led to this hearing.

The hearing then commenced on June 4, 2009. DSS, the petitioner, began their case by [*2]calling Nassau County Adult Protective Services (hereinafter referred to as "APS") caseworker, Eileen Ryan.Ryan testified that she began a series of approximately five (5) home visits to the AIP on February 6, 2009, as a result of an anonymous complaint of JS walking in the neighborhood unattended. She found the AIP's house to be in disrepair from the outside and run down on the inside, specifically noting peeling wallpaper and dust in the interior of the home and peeling paint and a fallen shutter on the exterior. When questioned by her at his home, she testified that the AIP was unable to answer who the President was, the month, date, and year. Shown a picture of his children, he stated that he did not know who they were. In the refrigerator were several frozen dinners, cake, cookies and juice. She testified that at one visit, upon her leaving the home, the AIP followed her outside in his bare feet and identified her car as being his. He did identify Debra Guida as a lady friend who helps him, expressing no signs of fear or distrust. Ms. Ryan noted that he was affable, gregarious and very friendly. APS recommended the appointment of a guardian as well as continued 24 hour home health care or placement in a facility.

JS was called as a witness by his counsel for the purpose of offering his nomination of Mrs. Guida as his guardian. He was at times combative, at times coherent, and at times plain silly (he recited "Peter Piper picked a peck of pickles peppers" in between questions twice during his testimony). JS presented as a rather robust figure. Tall, fit and gray haired, he was neatly groomed and appropriately dressed. He understood the questions being asked of him but his answers were not uniformly responsive. He did not know his address-he said that he lived in Astoria. He did not remember his children's names. He did not appear resistant to the idea that he needed help taking care of himself. He was able to read the Nomination of Guardian page clearly although he did not remember executing it. He recognized his signature; and he did not remove his nomination of Debra Guida during testimony. He was unable to identify his wife of 31 years who was sitting in the courtroom. When asked who Debra Guida was, he answered "a friend." When asked for how long, he said "I don't know, 10 or 20 years." He testified that she helps him out when he need it and if he did need something she will get it for him. When asked if she helped him pay his bills he stated that he "guessed so but was not sure." When asked what his guardian does he answered, "buys me things, takes damn good care of me; she's a great woman." He identified Debra Guida several times in the courtroom.

The Court Evaluator, Edward F. Cunningham, Esq. testified that as a result of his appointment and investigation, he discovered that the AIP receives a monthly pension from Consolidated Edison in the approximate sum of $2,200.00 per month of which his former wife, AS , receives one-half. He also receives $1,236.00 per month in Social Security benefits. The AIP has no knowledge of his income and financial resources. Mr. Cunningham further testified that he learned that on or about March 10, 2009, a deposit for $19,410.99 was made to the AIP's joint checking account with Debra Guida at Chase Bank. On the same day, a check cleared the account in the sum of $73,285.49 and was deposited by Debra Guida into a savings account opened at Chase Bank in her name only. According to the Court Evaluator, Debra Guida told him that this was done upon the advice of Thomas Hynes, Esq., attorney for the Respondents, Debra and Anthony Guida, in order to make the AIP eligible for Medicaid Assistance. Debra Guida testified that none of these funds have been spent and that they were then placed in escrow with Thomas Hynes' firm, Hynes & Chu, LLP. The Court Evaluator further testified that he was satisfied that Debra Guida kept no [*3]monies for herself and all the monies taken out of the joint account were spent on the AIP.

The Petitioner next called as a witness Sue Beerman, a geriatric care manager from Barrister Advisory Services, Inc., who was retained by the Court appointed Temporary Guardian, Ellen L. Flowers, Esq. to complete an assessment of the current needs and living situation of the AIP. Upon doing her home visit, Ms. Beerman testified that the AIP was very friendly and hospitable and virtually devoid of memory. When asked what he would do in case of an emergency, he stated to her that he would "call that person", and Ms. Beerman testified that she knew he was referring to Mrs.. Guida. In her report, Ms. Beerman notes the value of the AIP'S long term relationship with Debra Guida and his need to have constant care. However, she testified that she has concerns over the possibility of the AIP moving in with the Guida, and that as she understood it, the plan was that the AIP would be staying in their basement which has no exit to the outside of the house, steep steps into it, and little privacy. She recommended an assisted living facility or continued 24/7 care, a day social program, a cleaning service and smoke and carbon dioxide detectors if he were to remain living in the home. On examination by the AIP's counsel, she testified that JS was not neglected.

AS, former wife of the AIP, was called as the next witness. AS and the AIP were married in 1969 and have been estranged since their divorce in January 2000. AS receives one-half of the AIP's monthly pension benefits and retains a one-half interest in the marital residence located in Hicksville, New York pursuant to the divorce settlement. AS testified that she saw the AIP wandering around a shopping center on Jerusalem Avenue, near his home, in January of February 2009. AS stated that the AIP was lost and so she gave him a ride home, though he did not recognize her.

The Petitioner next called the Temporary Guardian, Ellen Flowers, Esq. Ms. Flowers is known to this court as a very experienced elder law/guardianship attorney. Ms. Flowers testified that she had learned that the AIP had an IRA with $43,000 and a bank account that had since been closed by Mrs. Guida in the amount of approximately $73,000. She stated that she had serious concerns about the appointment of Debra Guida as the AIP's guardian. Her concerns centered around her testimony that Mrs. Guida did not use the AIP's own funds to obtain care and supervision for him prior to Adult Protective Services' involvement. She also testified that those funds could have been used to have his home cleaned and to have certain repairs made to appliances in the house that were not working properly, and to better maintain the exterior of the house. For example, Ms. Flowers testified that Mrs. Guida was slow to have the lawn cut. Ms. Flowers was also dissatisfied with Mrs. Guida's failure to follow the doctor's recommendation to provide a low-salt diet for the AIP. Additionally, she testified that when the issue of the hiring of a live in aide was first discussed with Mrs. Guida her first inquiry was for how many hours a day. When Ms. Flowers told her "24/7", she said Mrs. Guida's response was that she thought he did not need that much care because he was in the Guida home for many hours a day. Finally, Ms. Flowers testified that when she first broached the subject of obtaining a home care aide for him, Mrs. Guida told her that she had a friend who had an agency that provided such personnel and Ms. Flowers told her that she would be happy to work with that person and asked to be given give the name and number to follow up. Ms. Flowers said that she waited over a week and did not hear back from her and so went ahead on her own and retained an aide. Petitioner then rested and called no further witnesses.

In order to make a determination as to Debra Guida's suitability as guardian, the Court called Mrs. Guida as a witness in order to determine her qualifications under MHL§81.19 (d). She is employed as a part time lunch aide in the Bethpage school district and has an associates degree. She has three children who live at home, the oldest is a son, who is nineteen years old, and the youngest who is nine. Mrs. Guida testified that she has been the AIP's neighbor for approximately twenty (20) years and began looking after him for several years. She has had a joint bank account with him since approximately 2004, at a time when there was no issue concerning his mental capacity. She has been taking him to his doctor appointments at least four times a year, does his food shopping, prepares his meals, which are mostly frozen dinners, when he does not eat at her home with her family, and ensures that he takes his medicine everyday. When asked what they were she named six of the seven daily medications. She said that he has gained ten pounds this year. She described doing light housework, paying his bills, and taking care of his mail. Over the last four to six months she has been receiving his mail directly at her home because he was continually misplacing it and she was concerned that the bills might not be paid. During this time period, he has been spending approximately six hours a day at her home with her family. She testified that his daily routine was to wake up early to read the newspapers and when she goes to his house she reminds him to shower. He dresses himself . She testified that she does his laundry and that every two weeks she brings him for a shave to his barber. At dinner time, she will take him back to his house, prepare dinner and a light snack, and that he will fall asleep after that. When questioned about the condition of the house and more specifically the bathroom in the basement that AS uses, she testified that he refused to let her clean his house, and while she agreed that the downstairs bathroom did need to be scrubbed she did not think to hire a cleaning service.

Mrs. Guida acknowledged that she had been in court during the hearing and had heard the concerns expressed by the various witnesses' about her being appointed guardian of the AIP. She addressed each of them as follows. As to the issue of his diet, she had several responses. First, she said that Dr. Richard Federbush, the physician Ms. Flowers referred to, saw him every three months and never directed her to change his diet. She agreed that he enjoyed frozen meals (TV dinners) and said that since she had known him he had eaten them, as well as cookies, cake, and juice. But she insisted that there was often fresh fruit in the house, as well as canned fruit and she often purchased Healthy Choice Brand dinners. In regards to why she did not obtain supervision for him prior to APS' involvement, she testified that she did not think it was necessary to have or pay for such care because he was with her or her family so many hours a day. Although she was aware of one incident where he may have gotten lost which she had heard about from a neighbor, he never suffered any harm as a result. Additionally, she testified that the AIP is an inveterate walker and that she did not want him to be confined to his home which she was afraid may happen. She stated that she was concerned about the possibility of him wandering and that her response was "to spend more time with him I began taking him on errands with me when I got home around one o'clock or so from work." She said the usual routine was for him to be at her house from 1:30 p.m. or so in the afternoon until approximately 7:00p.m. Mrs. Guida testified that "until this happened I thought I had things pretty much under control." As to the condition of the home, she said that in retrospect she may have let the lawn grow too long but she did not think it was a serious problem. She stated that [*4]she had cut the bushes of his house herself and shoveled the snow at his home before she shoveled her own to make sure he could get out safely. She testified that she put up notes in the house such as "Leave Mail", "Don't walk outside" "wait for me to come over" and the like.

When questioned by the Petitioner as to a potential conflict in being named the remainder -man in the AIP's will and his DPOA, Mrs. Guida never answered the question directly, however she did say that she would spend the money necessary to provide him with what he needs. She also testified that she had never seen or read the AIP's will. She stated that she understood that ultimately his money would go to a facility of one kind or the other and she was fine with whatever was best for him.

APPLICABLE LAW

Article 81 of the Mental Hygiene Law empowers this Court to appoint a guardian of the person and/or property of any person over whom the court has jurisdiction. Based upon the entire record, the court hereby finds that this court has obtained in personam and subject matter jurisdiction. Viewing the record in its entirety and this hearing having been conducted pursuant to Article 81 of the Mental Hygiene Law and this Court, having heard the proof and reviewed the petition and supporting papers together with the report and testimony of the Court Evaluator, the court hereby finds by clear and convincing evidence that JS is an incapacitated person as defined under § 81.02(b) of the Mental Hygiene Law in that he is not able to provide for his own personal and property management. Therefore, the decision of this court is that a Guardian shall be appointed under § 81.02(a)(1) of the Mental Hygiene Law.

Section 81.17 of the Mental Hygiene Law authorizes a person subject to an Article 81 proceeding to nominate a guardian in a written instrument duly executed, acknowledged, and filed in the proceeding before the appointment of a guardian. This court is then obligated, under §81.19(b) of the Mental Hygiene Law to appoint said AIP nomination unless the court determines the nominee is unfit or the alleged incapacitated person withdraws the nomination. Here, the AIP has requested that his neighbor Debra Guida, who he previously appointed as power of attorney be appointed as his guardian. The court is thus presented with the following issues: 1) having here been found to be an incapacitated person and in need of a guardian pursuant to §81.02 (a), what weight, if any, should be given to JS's expressed desire to have Debra Guida as his guardian; and 2) is Debra Guida qualified to serve as guardian to JS.

The language of § 81.17 of the Mental Hygiene Law does not expressly state whether a person subject to an Article 81 proceeding must have the mental capacity to nominate a guardian. Case law on the appointment of a Guardian with the consent of the AIP pursuant to MHL 81.02 (a)(2) is likewise lacking. (Matter of Marie E. Loccisano, NYLJ, Aug. 28, 1996 at 27, col 6). In Loccisano, (supra), the Court addressed the issue of the requisite capacity of the AIP to consent to appointment. There the court found that the alleged incapacitated person, Marie Loccisano, while being physically disabled, was not an incapacitated person within the purview of the Mental Hygiene [*5]Law and was therefore capable of nominating her own guardian. Similarly, in In re G.W.C., the Court allowed a mildly mentally retarded individual to nominate siblings as co-guardians. (see In re G.W.C., 4 Misc 3d 1004A, [2004]). However, in G.W.C., the Court did not address the issue of capacity required for an alleged incapacitated person to make a nomination, but rather focused on the alleged incapacitated person's father's lack of understanding and compassion in caring for his daughter, and the application of § 81.19[c] of the Mental Hygiene Law, which states that in the absence of another nominee, the court shall appoint the person nominated by the alleged incapacitated person, unless it determines for good cause that such appointment is inappropriate.

Here, unlike the two cases cited above, it is quite clear that the AIP does not have the mental capacity to understand his functional limitations. However, based upon his testimony in court, after being questioned by his own counsel, as well as the other attorneys, the court finds that he very clearly expressed his desire to have Mrs. Guida and only Mrs. Guida as his Guardian and that his choice was based upon his own free will without any evidence of him being coerced or pressured into making this choice. It is clear that the AIP and Mrs. Guida have a long standing relationship. Prior to this proceeding she has provided care for him on a daily basis voluntarily. He is admittedly a difficult person who is estranged from his wife and four children apparently by his own choice. But he has a clearly expressed his comfort and trust in Mrs. Guida. The court finds that his dementia has not deprived him of the ability to express his desire on this very critical and personal issue in his life. Having observed him in court on the witness stand, the court finds that his wishes should be recognized and granted unless there is a compelling reason to deny him what he wants. Furthermore, Article 81 clearly acknowledges that there is a statutory preference for the AIP's choice. Under § 81.19[c] of the Mental Hygiene Law, the court must follow the AIP's wishes unless it "determines for good cause that such appointment is not appropriate." [In Re Kathleen FF, 6 AD3d 1035]. A finding that an appointment is inappropriate is based upon proof of the requisite capacity of the AIP to choose a guardian and the qualifications of the nominee. Having found that Mr. S. was capable of expressing his desire to have Mrs. Guida and only Mrs. Guida appointed as his guardian and that his preference should be given due consideration by the court, the next issue to be addressed is Guida's suitability to be the guardian.

The criterion to be considered when making an appointment of a guardian for an incapacitated person are found in Mental Hygiene Law § 81.19(d). In making its' determination the court considered the following factors:

First, the court must consider the nomination of persons to act on behalf of the subject individual considering his or her execution of powers of attorneys, health care proxies, or other like documents. Mr. S. had given Mrs. Guida both durable power of attorney and health care proxy years before this proceeding. While the healthcare proxy has not been challenged there was testimony that Mrs. Guida closed the joint account that she had with the AIP and transferred the funds into her own account. At the commencement of the proceeding the transfer was discovered by the Court Evaluator. Mrs. Guida testified that after conferring with Mr. Hines, her retained counsel who was present at the hearing, she followed his advice and transferred the funds to her own account because Mr. Hines advised her that it would be advantageous to JS for medicaid planning for there to be no assets in his name. According to the Court Evaluator, none of the funds transferred prior to the proceeding were in any way used for any purpose other than on behalf of the IP. There [*6]was no evidence at the hearing indicating otherwise. Her testimony concerning the advice of counsel was credible. If theft were a motive, she had five years as durable power of attorney to misappropriate his funds. She did not do so.

Second, the court should consider the social relationship, if any, between the incapacitated person and the person proposed as guardian, and the social relationship between the incapacitated person and other persons concerned with the welfare of the incapacitated person has been considered by the court. As stated above, JS has a long standing close and personal relationship with his nominee and does not have a social relationship with anyone other than his nominee. He is estranged from his four children and his former wife and there was no evidence of any other person besides Guida who the AIP is in the least way involved with.

Third, the court should consider the care and services being provided to the incapacitated person at the time of the proceeding. As discussed in some detail above, Mrs. Guida had been caring voluntarily for the AIP on her own and on a daily basis for about the last five years or so. She was criticized for not being as aware as she probably should have been of the extent of his deficiencies. Those comments are not unfair but it is my view that what she has done-without compensation or request for same- for years on his behalf far, far outweigh her failure to be proactive on his behalf in certain areas.

Fourth, the court should consider the powers which the guardian will exercise as they are enumerated later in this decision. It is the court's opinion that Mrs. Guida will be fully capable of exercising same.

Fifth, the educational, professional and business experience relevant to the nature of the services sought to be provided. Mrs. Guida admittedly has no professional or business experience relevant to her serving as guardian.

The sixth factor to be considered is the nature of the financial resources involved; and seventh the unique requirements of the incapacitated person. This is significant here for the simple reason that, according to his former wife, the AIP has a history of being very difficult to live with and be with. She testified that if you did not see things his way he basically "cut you out" and that was the end of his dealing with you. By all accounts he has a wonderful relationship with Mrs. Guida and it is the court's view that relationship could not be replaced by a stranger at this point in his life.

The final factor to be considered is the existence of any conflict of interest between the person proposed as guardian and the incapacitated person. The potential conflict of interest here is a significant issue because, as was brought out in the hearing, Mrs. Guida is his sole heir and stands to gain by preserving his assets rather than perhaps spending the funds remaining on his care. However, in that regard the court views Mrs. Guida as being in the same role as the children of AIP's who are uniformly appointed as guardians when they are also heirs and often sole heir of the AIP. That conflict does not stop the court from making those appointments routinely. She is in no different position than a child of the AIP.[See, In Re Kathleen FF, supra]. Further, JS has total assets of about $110,000 between his cash account and IRA account plus his monthly pension and social security. It is the court's recollection of the testimony that he is spending about $200 per day on home care. It has been estimated that his cash will run out in about two years time. At that point the only asset he has left will be his half interest in the marital residence. When he can no longer live there the house will be sold and he will be forced to reside in either a nursing home or assisted living facility. Either way, it is very unlikely that there will any estate left for Mrs. Guida to inherit. She [*7]was made his heir years before anyone was questioning his mental capabilities.

Additionally, the court finds that the concerns offered against Mrs.Guida, while no doubt made in good faith , are insufficient to prevent her appointment. It is the court's opinion that it is unfair for our system to expect that a private person, who begins to look after an elderly neighbor, should be presumed to know that she could have or should have, on her own, used his funds to obtain a private home health aide to move into the IP's home, change his diet, use his money to paint his house, scrub his bathrooms and otherwise serve as his caretaker, protector and guardian angel. The court believes that these expectations place a burden upon a Good Samaritan that is simply unrealistic and unfair. A neighbor who executes a power of attorney, initially for the purpose of paying bills, cannot be presumed to be required to provide social services to a person in JS's condition that are available from the Nassau County Department of Social Services and then be criticized for not availing herself of them. Ms. Guida testified that in all the years that she was acting as his de facto caretaker she was aware of one incident where he wandered off and was lost. That testimony was not impeached and the court finds it credible. Additionally, the court accepts her explanation that the main reason that she did not consider obtaining a live in aide for him was that she believed that she was handling him and had things "pretty much under control."

Ultimately, in matters of guardianship, the court's paramount concern is the best interest of the incapacitated person. [See, Seth Rubenstein P.C. v. Ganea, 41 AD3d 54, 64]. This determination necessarily involves a judgment upon the facts and lies in the Court's discretion. (Matter of VonBulow, 63 NY2d 221; See, In Re Kathleen FF, supra; In re G.W.C., 4 Misc 3d 1004A (N.Y.S. 2004). In order to make this determination, this Court has taken into consideration the fact that JS was able to point out Debra Guida in the courtroom several times, that he is aware that she is the woman who helps him on a daily basis, and they have known each other for the past twenty years as they have been neighbors. Despite his incapacity and therefore inability to formally nominate a guardian, JS's preference for Mrs. Guida and their long history and friendship has been taken into consideration, consistent with § 81.19[c] of the Mental Hygiene Law.

There is an undeniable preference for appointing relatives as guardians when possible pursuant to MHL § 81.19 (d)(2). However, in the instance of JS, he is estranged from his former-wife, four adult children, and extended family members thereby making them unsuitable to serve as his guardian. In circumstances such as this, the court may override the preference for a relative-guardian. (see In the Matter of Mary Gustafson, 308 AD2d 305, 307 (1st Dept. 2003)). As stated by the Appellate Division Second Department in its decision entitled, In re Naquan S., (2 AD3d 531), a "stranger will not be appointed as guardian of incapacitated person unless it is impossible to find within family circle, or their nominees, one who is qualified to serve." That is the situation present in JS's case. The court must then look towards the social relationship between the IP and those concerned with his welfare, such as his friend and neighbor, Debra Guida.

Based upon the foregoing, the court finds that Debra Guida is qualified to be appointed as Guardian of the property and Guardian of the person of JS pursuant to MHL §81.19 [d], and is hereby appointed as such.

POWERS OF GUARDIAN [*8]

The order and judgment to be submitted herein shall provide for the Guardian to have all those powers authorized under sections 81.21 and 81.22 of the MHL, and to make any and all decisions consistent with the functional limitations of JS and which decisions are obviously in her best interest and welfare.

The court finds that the appointment of Mrs. Guida as the Guardian of the Person and Property under MHL §81.02 with the enumerated powers specified below is the least restrictive means necessary under the circumstances of this case.

With respect to the specific powers to be granted, in addition to the standard ones, the guardian shall be authorized to:

1)The guardian shall work with the Geriatric Care Manager, Sue Beerman of Barrister Advisory Services Inc., who is hereby appointed for a period of four months, and directed to visit the IP twice per month for that same period. The Geriatric Care Manager shall submit written recommendations at the conclusion of four months as to the personal care assistance and any decisions that should be made regarding the social aspects of JS.

2) The Guardian shall continue to employ the home health aid that has been in place by the Temporary Guardian on a 24/7 basis until further order of the court.

3)The Guardian has the authority to recommend to the court the change in place of abode of the IP, but the final approval must be obtained by the court.

4)The Guardian shall have the power to endorse, collect, negotiate, deposit, and withdraw Social Security, and / or other pension, annuity or benefit checks and /or negotiable instruments.

5)The Guardian shall have the power to pay such bills as may be reasonably necessary to maintain JS.

6)The Guardian shall have the power to defend or maintain any judicial action or proceeding to a conclusion until an executor or administrator is appointed.

7)The Guardian shall have the power to apply for government and private benefits on behalf of JS.

8)The Guardian shall have the power to consent to or refuse generally accepted routine or major medical or dental treatments.

9)The Guardian shall have the power to access confidential or other medical records and to authorize access to or release of confidential records.

10)If the Guardian deems it appropriate, in addition to establishing a luxury account in the maximum amount allowed by the Nassau County department of social services, she shall also be authorized to use the guardianship funds for the purpose of establishing an "irrevocable funeral trust" with a reputable funeral establishment in the state of New York, for future burial expenses.

The appointment herein shall be for an indefinite duration upon the filing of a designation and an appropriate bond in the amount of $225,000.00.

The guardian shall be required to visit with the IP not less than 12 times a year. The guardian shall complete a training program in accordance with section 81.39 of the MHL as soon as one is made available in Nassau or in an adjoining county.

The durable powers of attorney issued to Mrs. Guida by JS are hereby revoked pursuant to MHL §81.29 (d).

The Temporary Guardian shall be discharged upon the filing of the commission by the [*9]appointed Guardian, and the posting of a bond. The Temporary Guardian shall file an affidavit of services with the court in order to be compensated from the Guardianship account.

In addition to the foregoing findings, the order and judgment shall also provide for compensation to the Guardian, which shall be fixed in the further orders of the court from time to time.

It shall also provide for compensation to be paid from the guardianship account to the petitioner's attorney and and the court evaluator, all of whom shall be required to serve and file an affidavit of services prior to the entry of the order and judgment, as to any and all services performed in this article 81 proceeding, up to and through the issuance of the commission to the guardian. The counsel to the incapacitated person, David Smith, Esq., has waived said counsel fees.

Based on all of the foregoing, the petition is granted. Petitioner shall submit the order and judgment settled on appropriate notice to the court evaluator in accordance with this Decision.

COUNSEL FEES FOR INTERESTED PARTY

Barbara Albom, Esq., who is counsel for AS, the ex-wife of JS, who appeared as an interested party in this Article 81 proceeding, submitted an attorney affirmation for legal fees for appearing on behalf of AS. Counsel for AS seeks to have the court compensate counsel from the estate of the JS, the incapacitated person.

There is no statutory authority under the Mental Hygiene Law for compensating counsel representing an interested party to the proceeding. Pursuant to the Mental Hygiene Law, the court has the discretion to compensate the petitioner's counsel when the petition is granted under section 81.16 (f), and to compensate appointed counsel representing the alleged incapacitated person under Section 81.20(f).

The compensation statutes for guardians, court evaluators and counsel have been strictly construed by the Appellate Division to provide compensation only when expressly provided for by statute. In the case of In Re Application of Lillian Petty, (256 AD2d 281), the Appellate Division First Department held that the retained counsel of the alleged incapacitated person could not receive compensation under MHL section 81.10 (f) because the statute only provided for compensation for appointed counsel. Likewise, in the decision of In the Matter of Robert Lyles, (250 AD2d 488), the Appellate Division Second Department held that the special guardian cannot receive compensation from the petitioner when the petition for the appointment of a Guardian has been granted and the alleged incapacitated person is indigent because the applicable statute, MHL §81.16 [b], did not provide for same. The court also indicated that the same conclusion would be reached for legal counsel fees for counsel assigned to an indigent incapacitated person where the petition is granted because the statute does not provide for compensation when the incapacitated person is indigent. The Second Department has reasoned that "The legislative silence ... does not create a vacuum inviting judicial creativity." (Id, at 490).

Counsel is requesting the court to create a new category of law to compensate interested parties who retain counsel to the Article 81 proceeding which compensation was never established by the New York State Legislature. This court declines to do so in light of the Second Department's exercise of judicial restraint on the issue of compensation. Furthermore, even if the court was to consider awarding counsel fees, such award "...is discretionary and based upon a variety of

factors, with the "paramount consideration" being the best interest of the AIP." [Rubenstein P.C. [*10]v. Ganea, 41 AD3d 54). Here, the incapacitated person has limited funds that he will need in order to pay for a home health care aide while he lives at his residence. When those funds are exhausted his home will be sold and the proceeds divided with his former wife. At that point, it is likely that he will be placed in a nursing facility of some kind. It is essential, therefore, for the court to maintain his assets for as long as possible to ensure the highest quality of life possible for him. Approving expenditures for counsel fees of the former wife does not help achieve that goal in any way.

Accordingly, the request for counsel fees on behalf of the interested party is denied in its entirety.

E N T E R

DATED: June 29, 2009

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Hon. Arthur M. Diamond

J. S.C.

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