Matter of N.W.

[*1] Matter of N.W. 2009 NY Slip Op 51527(U) [24 Misc 3d 1220(A)] Decided on July 14, 2009 Supreme Court, Bronx County Hunter, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 14, 2009
Supreme Court, Bronx County

In the Matter of the Application for the Appointment of a Guardian for N.W., A Person Alleged To Be Incapacitated.



260112/09



Petitioner, who is an attorney, represented himself in the proceedings. His initials are L.W.

Counsel for Cross-Petitioner: Steven B. Cottler, Esq.

Court Evaluator: Andrea Risoli, Esq.

Alexander W. Hunter, J.

A petition has been filed for the appointment of a guardian of the person and property of N.W., an alleged incapacitated person (hereinafter known as "the person"). This court is 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 a copy of the order to show cause. Andrea Risoli, Esq., was appointed to serve as the court evaluator.

A cross-petition was subsequently filed by M.W., one of the person's sons, requesting that the petition be dismissed or, in the alternative, requesting that he be appointed the guardian of his father.

The hearing was held at Regeis Care Center on Monday June 29, 2009 and concluded on July 2, 2009. At the hearing the person was present and testified briefly. L.W., the petitioner herein and S.W., the person's niece, testified on behalf of the petitioner. M.W. testified on behalf of the cross-petitioner and the court evaluator also testified at the hearing.

FINDINGS OF FACT

1. The person is 78 years of age. The person presently resides at Regeis Care Center, 3200 Baychester Avenue, Bronx, New York 10475.

2. The petitioner annexed to his petition, a copy of a durable general power of attorney executed on January 15, 2002, in the State of Florida naming the petitioner his attorney-in-fact. In addition, the person executed a living will and health care proxy naming the petitioner his health care agent.

The petitioner, who is the person's eldest son, testified that the person, who is a resident [*2]of the State of Florida, suffered a stroke on or about May 25, 2008 while visiting family in Bronx County and was hospitalized. The petitioner stated that the person had been returned to his home in Port Charlotte, Florida following his hospitalization and a period of rehabilitation. He further stated that he was unable to travel with the person because he was undergoing surgery at the time and could not travel. Therefore, the person's other son, M.W., traveled with the person to Florida. However, when the person suffered a urinary tract infection the petitioner states that he was unable to obtain any information about the person's condition and he alleges that M.W. was not cooperative with the home care attendants the petitioner obtained for the person.

The person was then transferred to a nursing home in Florida. The petitioner stated that in November of 2008, he was informed by the nursing home by telephone, that a new durable power of attorney was presented to the nursing home naming M.W. the person's attorney-in-fact. Moreover, a few days later, he received a telephone call from the branch manager at Suntrust Bank in Florida where the person has an account, informing the petitioner that M.W. was at the bank with a new power of attorney which purportedly replaced the one from 2002 that named the petitioner the person's attorney-in-fact. The person was subsequently brought back to New York by his son M.W. to live with relatives in a basement apartment in the Bronx. The person then relapsed and is now residing at Regeis Care Center.

Petitioner stated that he shared a close loving relationship with the person who often sought his advice and counsel before he became an attorney. Petitioner asked for his advice with respect to advance directives and the petitioner assisted him with obtaining the forms and advised him to seek an attorney. The person executed the health care proxy and power of attorney in 2002 after consulting the petitioner and determining that none of his other children would be suitable to serve as his attorney in fact or his health care proxy. According to the petitioner, M.W. was not suitable because he had been arrested for domestic violence in the past.

The person, nevertheless, executed a second durable power of attorney on October 9, 2008, naming the cross-petitioner his attorney-in-fact. On that date, he also signed a revocation of power of attorney whereby he revoked the power of attorney he signed in 2002 naming the petitioner his attorney-in-fact. However, petitioner contends that the cross-petitioner has not provided the court with a reason as to why he should be removed as the person's attorney-in-fact.Petitioner stated that he did not know why the person wanted him to be removed as his attorney-in-fact. He requested that this court invalidate the second power of attorney because it was not served upon him in accordance with Florida law. His plan of care for the person is to have him move to petitioner's home in Stonybrook, New York.

3. S.W., the person's niece, was also called by the petitioner to testify. S.W. stated that she is close to the person and visits him almost daily. She stated that the person and the petitioner were very close in the past and the person relied on him to help him with his finances. However, the relationship has changed and the person is angry with the petitioner. S.W. stated that she has had discussions with the person about whom he wants to handle his affairs and he states that he wants M.W. to take care of his finances and make decisions for him. S.W. stated that M.W. visits the person regularly. She also stated that the person is able to follow all questions and he answers appropriately. He struggles to get the words out ever since he had his stroke but he can be understood.

S.W. stated that the person is very concerned with his property in Florida and he has [*3]improved considerably since his stroke. She further stated that he beams when he hears his girlfriend's name. S.W. gets along with both the petitioner and cross-petitioner. When asked if she would be willing to serve as guardian for the person, she stated that she would because her only concern is that the person be taken care of.

4. Petitioner wished to call a witness from Florida to testify by telephone. However, that request was objected to by the cross-petitioner and this court denied the request.

5. Cross-petitioner, M.W., testified that he is very close to the person and visits him approximately four (4) times per week. He stated that the power of attorney executed by the person in 2008 naming him the person's attorney-in-fact, was executed by the person through an attorney in Florida and he was not present. Cross-petitioner had his name added to one of the person's bank accounts in Florida and has assisted the nursing home with filing a medicaid application on the person's behalf. He gave a different version than the petitioner gave of the events that occurred after the person's stroke. He stated that he brought the person back to New York from Florida because it was the person's desire to return. He further stated that the person did not want to remain at the nursing home and wants to return to Florida.

The cross-petitioner stated that he believed the petitioner's interests would be adverse to those of the person because he has demonstrated negligence in the past with respect to the person's care. Specifically, he stated that the person was in the process of receiving additional therapy to help him start using his legs at the nursing home where he currently resides but the therapy was stopped because of the petitioner. Petitioner cross-examined the cross-petitioner extensively about his character, his prior arrest for domestic violence and his bankruptcy filing.

The cross-petitioner stated that he has used money from the account he owns jointly with the person to pay for medication for the person and for home care when he was residing in the community. He also stated that the person wished to have the petitioner removed as his attorney in fact because the petitioner wanted to separate him from his girlfriend, treated him as if he was an "idiot" and he planned to take him to live with him in Long Island even though the person does not want to go there.

The cross-petitioner was of the opinion that the person could make his own medical and financial decisions. He stated that he would be willing to follow his father's directives. However, if the court were to appoint a guardian, he wished to be considered the guardian of the person only. He stated that he would hire an attorney to conduct estate planning on behalf of the person and he would consult other family members, including the petitioner, when making decisions for his father.

The cross-petitioner, through his attorney, requested that the petition be dismissed as petitioner failed to meet his burden by clear and convincing evidence that the person lacks capacity and is in need of a guardian.

4. The person testified briefly. He stated that he would be willing to have a guardian appointed and wished to have his son, M.W., appointed as his guardian. He further stated that M.W. treats him with kindness, feeds him, helps him get dressed and visits him often. He stated that the petitioner, L.W., and his other son, H.W., do not visit him. When asked if he would consent to have S.W. appointed as his guardian he stated, "maybe." He also stated that he wished to stay at the nursing home.

5.The court evaluator agreed with the cross-petitioner that petitioner's burden of [*4]proof was lacking with respect to capacity. However, she indicated that the person understood the nature and consequences of the guardianship and consented to have his son, M.W., appointed as his guardian. The court evaluator recommended that a guardian be appointed and that S.W. be appointed to serve as the guardian.

6. The petitioner does not indicate what the person's assets are. However, the cross-petition lists the person's assets as follows: Suntrust bank account with a balance of approximately $50,000-$60,000; an account at Bank of America with a balance of approximately $23,000 - $25,000; a money market account at JP Morgan Chase Bank with a balance of approximately $99; a life insurance policy with a value of $10,000; an AIG annuity with a balance of approximately $52,000; a single family home without a mortgage in Port Charlotte, Florida, the value of which was not disclosed to this court.

CONCLUSIONS OF LAW

Upon consideration of the documents submitted and the testimony adduced at the hearing, this court finds that the petitioner did not meet his burden by clear and convincing evidence that the person requires the appointment of a guardian of his person or property. After suffering a stroke, the person has been in a wheelchair and has physical limitation. However, viewing the evidence in the light most favorable to the petitioner, it is clear that he has failed to meet his prima facie burden of establishing that the person is likely to suffer harm because he is unable to provide for his personal needs and property management and he cannot adequately understand and appreciate the nature and consequences of his inability. Mental Hygiene Law §81.02(b)(1) and (2). The petitioner testified clearly that he wished to have his son, M.W., handle his affairs. There was no indication to this court that the person cannot make decisions for himself.

Moreover, the person has executed a health care proxy and a power of attorney. He revoked the power of attorney from 2002 naming the petitioner his attorney-in-fact and executed a new power of attorney in 2008 naming the cross-petitioner as his attorney- in-fact. His decision to revoke the power of attorney reflects the desire he expressed at the hearing that his son M.W. take care of his affairs. The fact that petitioner is dissatisfied with the person's choice is not reason enough to file a guardianship proceeding.

Mental Hygiene Law §81.02 states that the court may appoint a guardian for the person if the person agrees to the appointment or is incapacitated. "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..."

In the case at bar, there was no testimony or evidence presented at the hearing to show that the person was in any way mentally incapacitated at the time he executed the revocation of the power of attorney and the new power of attorney naming M.W. his attorney-in-fact in October of 2008. The person retained a Florida attorney to draft those documents and M.W. was not present when the documents were executed. The fact that he may have consented to the appointment of his son, M.W., as guardian, is not a reason to invalidate the power of attorney the person executed in 2008 and appoint a guardian as the person was and is capable of making his own decisions without court intervention. It has been established that it would be an abuse of the court's discretion to revoke a power of attorney unless there is evidence that the holder of said document engaged in conduct that would justify revocation. In re Isadora R., 5 AD3d 494 (2nd [*5]Dept. 2004).

Petitioner's testimony and cross-petitioner's testimony clearly demonstrates that there is a conflict between two siblings who are concerned with their father's care. However, absent from petitioner's case is any information with respect to the person's alleged incapacity or inability to decide who should handle his personal affairs. Moreover, there was no reason articulated to this court as to why the power of attorney executed by the person in October of 2008 should be revoked. Accordingly, the application by the petitioner for the appointment of a guardian of the person and property is denied.

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 any costs incurred by the petitioner in bringing the instant petition as well as the fees of the court evaluator, shall be borne by the petitioner. The court evaluator is directed to submit an affirmation of legal services.

This constitutes the decision and order of this court.

Date:July 14, 2009

J.S.C.