Matter of Allers (G.P.)

[*1] Matter of Allers (G.P.) 2012 NY Slip Op 52160(U) Decided on November 26, 2012 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2012
Supreme Court, Dutchess County

In the Matter of the Application for the Appointment of A Guardian by Robert B. Allers, as Commissioner of Social Services of Dutchess County Department of Social Services, Petitioner, For G.P., A Person Alleged to be Incapacitated, Respondent.



1932/2012



WILLIAM F. BOGLE, JR., ESQ

Attorney for Incapacitated Person

G.P.

Corbally, Gartland & Rappleyea, LLP

35 Market Street

Poughkeepsie, New York 12601

JANET V. TULLO, ESQ., Bureau Chief

Attorney for Petitioner

Dutchess County Department of Social Services

60 Market Street

Poughkeepsie, New York 12601

EUGENIA B. HESLIN, ESQ.

MENTAL HYGIENE LEGAL SERVICE

Court Evaluator

Second Judicial Department

One Civic Center Plaza, Suite 304

Poughkeepsie, New York 12601 KEVIN L. WRIGHT, ESQ.

Former Temporary Guardian of the Property

for G.P.

P.O. Box 733

Mahopac, New York 10541

James D. Pagones, J.

This petition for the appointment of a personal care guardian of G.P. (hereinafter "G.P."), the Alleged Incapacitated Person ("AIP"), and to make permanent the temporary guardianship for property management of the AIP, is determined as follows.

A hearing pursuant to Mental Hygiene Law 81.11 ("MHL") was conducted over parts of several days. The AIP was present with his assigned counsel for each session of court. The same factors the court considered in assessing the credibility of the witnesses in its Decision, Findings of Fact and Order, dated July 19, 2012, following the hearing conducted under MHL 81.23(a) for the appointment of a temporary property management guardian, have been utilized in achieving this decision. All issues of credibility are resolved in favor of the petitioner. (PJI, Vol. 1A, 1:41; Goldstein v. Guida, 74 AD3d 1143, 1144 [2d Dept. 2010]; Ivani v. Ivani, 303 AD2d 639, 640 [2d Dept. 2003].)

The court has taken judicial notice of undisputed court records and files. (Kingsbrook Jewish Medical Center v. Allstate Insurance Company, 61 AD3d 13, 20 [2d Dept. 2009]; Khatibi v. Weill, 8 AD3d 485 [2d Dept. 2004].)

The following is the court's decision, stating the facts it deems essential. (Gouvis v. Gouvis, 44 AD3d 618 [2d Dept. 2007], lv appl den'd 10 NY3d 701 [2008]; Conklin v. State, 22 AD2d 481, 483 [3d Dept. 1965]; CPLR §4213[b].)

BACKGROUND[*2]

The petitioner initiated this proceeding by filing a verified petition requesting the appointment of a temporary property management guardian for the AIP and a temporary restraining order ("TRO") against Giovanna Strano ("Strano")and others working under her so as to preserve and protect the AIP's property. Mental Hygiene Legal Service ("MHLS") was appointed Court Evaluator. Attorney William F. Bogle, Jr. was appointed counsel for the AIP. A TRO was signed. A hearing pursuant to MHL 81.23(a) was conducted which resulted in the court's Decision, Findings of Fact and Order, dated and entered July 19, 2012. Attorney Kevin L. Wright was appointed temporary property management guardian for the AIP from the Part 36 Fiduciary List. The petitioner's request for a personal care guardian was denied without prejudice. The Order outlines the powers and duties of the temporary guardian. Additional temporary powers were subsequently added by the Court at the request of the temporary guardian. Strano and Thomas Kelly ("Kelly") were directed to refrain from interfering with any property of the AIP or with the activities of the temporary guardian while acting on his behalf.

The petitioner filed a second petition seeking the appointment of a personal care guardian. A hearing pursuant to MHL 81.11 was conducted to determine the merits of this application and to determine whether the temporary property management guardian should be made permanent. The AIP has opposed the appointment of both types of guardianship since the inception of this proceeding. During the pendency of this proceeding, the court issued a decision and order and separate order. The court determined in its decision and order, dated July 26, 2012, that the AIP could not be compelled to testify as a witness for the petitioner. (Matter of Allers [G.P.], 948 N.Y.S.2d 902; 2012 NY Misc LEXIS 3571; 2012 NY Slip Op 22204.) The order, dated September 26, 2012, overruled the AIP's objection to strike the entire testimony of a Social Worker who is familiar with the AIP's mental capacity and status. Secondly, the order overruled the AIP's objection to preclude the Court Evaluator's separate medical addendum from its introduction into evidence. (Matter of Allers, [G.P.], 2012 NY Slip Op 52095[U].)

Sharon Perkins ("Perkins") is a Social Worker employed by the Veterans Administration ("VA"). She is familiar with the AIP. Perkins worked with a team to develop a home care protocol in 2010 so that the AIP could receive medical care at his residence located at 11 Cady Lane, Wappingers Falls, New York. Personal care is necessary as a result of the AIP having experienced three (3) strokes, is a diabetic, has dementia and heart issues. He needs assistance with showering, medications, household chores, food shopping and laundry. The AIP has a history of falling down. His ability to ambulate has lessened, as he now uses a walker. The AIP was provided a guardian alert because of his history of falling. However, the evidence indicates that he only uses it sporadically. The evidence further indicates that he is inconsistent with taking his medications. The evidence indicates that the AIP resides at the 11 Cady Lane residence with Strano and Kelly and their infant son.

The plan which was implemented included home delivered meals through Meals on Wheels, for which there is a monthly charge. That continues through the present. This component of the plan was necessitated because of the team's concerns over the AIP's weight loss. The team consisted of Perkins, a home health aide who would attend to the AIP at his residence once a week, a nurse practitioner and registered nurse to address all of his medical needs so that he would not have to go to the hospital, a psychologist and dietician. No co-payments for their services were assessed, as the AIP's income was below the threshold requiring [*3]payment.

Perkins testified that the AIP was discharged from the program in May, 2012. She cited the ongoing volatility of the home environment as the principal reason. Habitual verbal altercations between the AIP and Strano during visits, and Strano's splenetic hostility towards Perkins and other members of the team were the source of the discharge. In April, 2011, the AIP reported to Perkins that he felt unsafe living at home.

While home services are no longer provided to the AIP, he nevertheless can travel to the VA hospital to the outpatient clinic for services. The Adult Protective Services unit ("APS") of the petitioner agreed to provide transportation but were denied access to the AIP's home. The AIP has had to rely on Strano and Kelly to keep his appointments.

Perkins testified she believes the AIP understands he needs to eat, but that he fails to understand his need to take his medications consistently and to maintain reasonable grooming. She agreed the AIP wishes to remain in his home. Perkins believes the AIP needs assistance with showering, medications, household chores, food shopping and laundry. A VA team would have to agree to have the AIP re-engage in a home care program.

Attorney Wright gave a detailed oral report of all actions taken pursuant to the order appointing him temporary property management guardian (MHL 81.23[a][1]) for the period August 27, 2012 through November 5, 2012. He stated with certainty that the AIP's sources of income are not sufficient to pay his ongoing debts. The assets, debts and mismanagement by Strano were addressed by the Court during the hearing conducted under MHL 81.23(a) which resulted in the Decisions, Findings of Fact and Order, dated July 19, 2012. The evidence received at that hearing demonstrated that the AIP lacked the functional capacity to manage his two (2) primary sources of income, a pension and social security benefits. He entrusted Strano to manage his money and pay his ongoing debts with negative results. The only other asset in his portfolio is a one-third interest with right of survivorship in the residence at 11 Cady Lane, Wappingers Falls, New York.

Wright's thorough account of his activities and the fiscal cliff the AIP now faces, coupled with the failure of the AIP to offer believable proof that he is capable of managing his finances, and has the functional capacity to do so, warrants a determination that the property management guardianship should be made permanent.[FN1]

The Court Evaluator testified. Her report and medical addendum were admitted into evidence over the objection of counsel for the AIP. The Court Evaluator gave a detailed description of her investigation which resulted in her reports and recommendation. Her recommendation is addressed in a later section of this decision.

Thomas Kelly is not related to the AIP. He met him approximately thirteen (13) years ago. Kelly gave a Yonkers, New York address as his residence, stating he lives with his mother and father. He also resides at 11 Cady Lane with Giovanna Strano and their out-of-wedlock infant son. He and Strano each own a one-third interest in the real estate. The evidence indicates that the AIP executed a deed on or about October 1, 2003 in which he conveyed title to the premises from himself to himself, Strano and Kelly equally, as joint tenants with right of [*4]survivorship.

Mr. Kelly is an electrician. He has been unemployed since April 29, 2011. He currently receives $405.00 per week in unemployment benefits. Kelly testified that he pays or has paid in the past, the following monthly bills:

1.Chevrolet Tahoe$1,000.00

2.Rent to his parents$800.00

3.Child support to Strano$400.00-600.00

In addition, Kelly testified that he has paid taxes, telephone, electric and cable bills for the 11 Cady Lane property, several mortgage payments, performed electric, plumbing and yard work for the premises. He currently pays no bills relating to the residence since he is unemployed, but he insisted he does pay the bills outlined above from his unemployment benefits. Kelly testified further that he and Strano pay for food. He acknowledged that the AIP does receive meals through the Meals on Wheels program. Other meals are prepared by either Strano or the AIP. Kelly testified that 98% of personal hygiene issues are addressed by the AIP and that the AIP takes his medications. The AIP operated a motor vehicle approximately three (3) weeks prior to the last day of the hearing according to this witness. However, Kelly also testified that the AIP has difficulty using his right hand.

Kelly testified that the AIP asked Strano to handle his finances about three (3) years ago. He acknowledged that cable services were recently shut off because the bill had not been paid.[FN2] Service has been restored. Kelly recounted how he, the AIP and Strano took out a thirty thousand dollar ($30,000.00) home equity loan. They split the proceeds equally in cash. Strano used her ten thousand dollars to pay bills, he used his ten thousand dollars to pay bills and go on vacation, and the AIP used his share for a vacation and buy tools. Kelly drives the AIP to pick up his medications. He agreed that the AIP's income is not sufficient to pay his expenses. Kelly is interested in becoming the AIP's guardian, both for personal care needs and property management needs, although he does not believe the AIP needs a guardian.

Kelly claimed that unnamed staff employed by the Dutchess County Clerk's Office prepared the deed and all associated documents necessary to record it on October 1, 2003.

Kelly was saturnine at various points during his testimony. His entire testimony can be summarized in one word: mendacious. Strano was similarly peevish when testifying during the hearing conducted pursuant to MHL 81.23(a). Court records disclose that Strano has been charged and convicted with a variety of criminal offenses dating back to July 15, 2002. Recently, on August 4, 2012, Strano was charged with committing petit larceny. On August 31, 2012, she was charged with possession of stolen property. Both of the cited cases are still pending.

The AIP elected to testify in spite of the Court's earlier determination that the petitioner could not call him as a witness. (Matter of Allers (G.P), supra, 948 N.Y.S.2d 902; 2012 NY Misc LEXIS 3571; 2012 NY Slip Op 22204.

The AIP is an affable man. He is sixty-eight (68) years old (date of birth: November 11, 1944). He previously served in the Army and was honorably discharged. At times, he would [*5]prate about aspects of his life, finances, relationships and himself. While he mimicked Kelly's testimony about recently operating a motor vehicle, he also admitted he has difficulty with his right leg. Kelly testified about the AIP's vicissitude with his right hand. Those two factors suggest very strongly that the AIP is assuming a potentially dangerous posture if he does attempt to operate a motor vehicle. Gripping the steering wheel and applying appropriate pressure to the accelerator would be at risk.

The AIP agreed that he had three (3) strokes, but he could not recall when he had them. He acknowledged that Strano moved in with him at 11 Cady Lane, but he could not remember the reason or when she moved in. Kelly came at a later time. The AIP acknowledged he currently resides with Kelly, Strano and their infant son, Angelo. He knows he has a mortgage, maybe two, but could not recall their balances.

The AIP recalled the deed transfer and expressed confidence that he trusts Kelly and Strano. He stated that Kelly pays for the house "for the most part" and Strano does as well on occasion. He then stated he understood that neither Kelly nor Strano are currently employed. However, he did not know if the land and school taxes had been paid for 11 Cady Lane, how much money he has, nor could he recall the last time he paid his own bills. He said he did not trust himself anymore, so he passed the responsibility off to Kelly and Strano. The AIP claimed he can still cook, clean and bathe. He still possesses a driver's license, has difficulty walking without the assistance of a walker or some other aid, believes Kelly and Strano had done a good job with his finances, chooses not to make himself breakfast unless it is easy, could not recall his most recent vacation, understood the house would be foreclosed if the mortgage was in default, and expressed his desire to continue residing at 11 Cady Lane with Kelly and Strano for as long as they wanted to stay.

The AIP acknowledged there have been verbal altercations between himself, Kelly and Strano. However, none of the disputes escalated into a physical confrontation. He opposes the appointment of a guardian now, but maybe in a year or two, "only God knows." As to his personal hygiene, the AIP testified "some people say I stink, some don't." He would like Kelly and Strano to share in his assets, not his brother from Michigan from whom he is estranged.

The AIP could not tell the court how much income he receives per month. He simply stated it comes from his pension. He admitted that he has requested help from a neighbor, along with Kelly and Strano, with his bills. He thinks he started wearing a medic alert button about two years ago.

The AIP testified he currently takes four pills a day, seven days of a week. However, he does not know what the pills are designed to do. He does not know his ailments. He believed he visited a doctor about a month or two prior to the hearing, but he could not remember the doctor's name. He admitted forgetting to take his medications on the day he testified. He mentioned that a girl friend of Strano recently moved into the 11 Cady Lane residence.

The AIP resides on the first floor of the residence. There is a bathroom and kitchen located there. He admitted to having issues with falling down. The AIP said he has diabetes but did not know what type. He takes pills for the disease, but he does not know the potential consequences of not taking his diabetic medication. The AIP could not recall the date of his next doctor appointment. He thinks he can still operate a motor vehicle. The AIP could not remember what he did with his share of the thirty thousand dollar ($30,000.00) home equity loan [*6]he signed for with Kelly and Strano. He believes the VA does not provide services at his home because they do not like him. The AIP claimed he keeps his pills on the kitchen table and denied they are placed in a pill box. This is in contrast to Kelly's testimony which was that all of the AIP's pills are placed in a pill box.

What impressed the court about the AIP is the unmistakable fact that he has abdicated his responsibilities regarding financial matters and even his ADL's to a great extent to others whose motives are suspect. It was quite evident also that the three (3) strokes he has experienced have had a debilitating effect on the AIP's ability to provide for his personal needs and to manage his property and financial affairs.

The petitioner has demonstrated that the appointment of a guardian for G.P., the AIP, is necessary to provide for his personal care needs and property management needs. The petitioner has established clearly and convincingly, that G.P., is likely to suffer harm because he is unable to provide for his personal needs and property management, and to adequately understand and appreciate the nature and consequences of such inability. (Matter of Barbara S. (Leonora S.), 99 AD3d 1008 [2d Dept. 2012]; Matter of Adam J. (Gwendolyn J.), 89 AD3d 943, 944 [2d Dept. 2011].)

The evidence from the hearing on temporary guardianship and this hearing also clearly establish that neither Thomas Kelly nor Giovanna Strano are suitable to act as guardian. (Matter of Ardelia R. v. New York City Health and Hospital Corporation-Elmhurst Hospital Center, 28 AD3d 485, 2487 [2d Dept. 2006].)

COURT EVALUATOR'S RECOMMENDATIONS

The Court Evaluator filed her report, medical addendum, and final report to supplement it with recommendations in each instance. The Court Evaluator supports the appointment of a permanent property management guardian (MHL 81.09[c][5]; 81.09[d]) utilizing the Part 36 list for that purpose.

The Court Evaluator recommends that neither Strano nor Kelly are fit to serve as a guardian.

The Court Evaluator recommends that the AIP is capable of remaining at his residence provided appropriate care, guidance and assistance are in place through a protective arrangement pursuant to MHL 81.16[b]. The Court disagrees with this suggestion. Rather, a protective order, pursuant to MHL 81.23[b][1], supplementing the appointing of a personal care guardian along with a property management guardian will be implemented.

The Court Evaluator's medical addendum (Court Ex. 2) shall be sealed by the Dutchess County Clerk. Leave of the Court will be required before it may be unsealed for examination. (Matter of Goldfarb, 160 Misc 2d 1036, 1044 [Sup. Ct., Suffolk Cty 1994); MHL 81.14[b].)

The petitioner is appointed guardian of G.P. for both his personal care and property management needs. Both guardianships shall be for an indefinite duration. (MHL 81.15[b][6], (c)(8).)

PERSONAL CARE POWERS

The guardian shall have the following personal care powers:

a.Determine who shall provide personal care or assistance for G.P.;

b.Make decisions regarding social environment and other social aspects of G.P.'s life; [*7]

c.Determine whether G.P. should travel;

d.Authorize access to or release of confidential records;

e.Apply for government and private benefits;

f.Choose the place of abode, however, placement of G.P. in a nursing home or residential care facility as those terms are defined in Public Health Law 2801, or other similar facility shall not be authorized without the consent of G.P. or leave of the Court.;

g.Consent to or refuse generally accepted routine or major medical or dental treatment, and to authorize, refuse, withhold, or withdraw life support and devices towards such ends, provided that treatment decisions are made consistent with the findings of Mental Hygiene Law section 81.22(a)(8); and,

h.Arrange for health care and personal aides to assist G.P. to stay home.

PROPERTY MANAGEMENT POWERS

The guardian shall have the following property management powers:

1.Access G.P.'s bank account(s) wherever situated in order to pay his bills, insurances, taxes, mortgage and home equity loan;

2.Marshall all of G.P.'s assets and establish a guardianship account;

3.Identify all of G.P.'s just debts;

4.Gain unfettered access of G.P.'s residence located at 11 Cady Lane, Wappingers Falls, New York 12590;

5.Obtain and open G.P.'s mail, deposit any checks into the guardianship account in order to pay his bills and secure and deposit his pension check and social security check;

6.Determine whether the lease agreement for the Toyota Camry can and should be discontinued so as to eliminate the approximately $383.00 per month debt from G.P.'s monthly budget;

7.Make the monthly Meals on Wheels payment;

8.Arrange for either weekly or biweekly delivery of groceries and household items to G.P. at his residence;

9.Become the representative payee for G.P.'s social security benefits;

10.To receive G.P.'s Local 966 pension checks;

11.To obtain from Giovanna Strano all funds of G.P. in any account(s) she maintains for or with G.P.;

12.File a deed severing his joint tenancy in 11 Cady Lane, Wappingers Falls, New York pursuant to Real Property Law 240-c(b).

The powers granted to the guardian are the least restrictive form of intervention necessary to provide for G.P.'s personal needs and property management in light of his understanding and appreciation of the nature and consequences of his functional limitations. (Matter of Barbara P., 72 AD3d 827 [2d Dept. 2010], lv appl dism'd 15 NY3d 828 [2010].)

PROTECTIVE ORDER [MHL 81.23(b)(1)]

Thomas Kelly and Giovanna Strano, along with any other person associated with them, are forbidden from selling, assigning, or from disposing of property or confessing judgment which may become a lien on property or receiving or arranging for another person to receive [*8]property from G.P. In addition, they are directed to refrain by word or deed, directly or indirectly, from interfering with the guardian's efforts to carry out the terms of this decision and the judgment to be entered. They and those associated with them are further directed to refrain by word or deed, directly or indirectly, from interfering with the efforts of third parties, medical or otherwise, to provide services to G.P. They are directed further to refrain from any activity which will endanger the health, safety or welfare of G.P.

COURT EXAMINER

Attorney Christopher M. Canfield, 963 Route 6, Mahopac, New York 10541, (845) 628-4000 is appointed from the Part 36 Fiduciary List to serve as Court Examiner. (MHL 81.32.)

MISCELLANEOUS DIRECTIVES

The guardian shall not be required to complete a training program as required by MHL 81.39. The filing of a bond, pursuant to MHL 81.25, is waived. The guardian is directed to promptly comply with MHL 81.26 (Designation of clerk to receive process), 81.27 (Commission to guardian), and 81.30 (Initial Report). The guardian is directed to file the first annual report (MHL 81.31) in the month of May, 2013. G.P. shall receive copies of the initial and annual reports. (MHL 81.15[b][7], [c][9].)

The guardian shall be compensated pursuant to SCPA §2307. The reasonable compensation to be awarded to MHLS as court evaluator shall be based upon an affirmation/affidavit of legal services. (MHL 81.09[f].) Similarly, the reasonable compensation to be awarded counsel for the incapacitated person shall be based upon the same type of submission. (MHL 81.10[f].)

Any extant Power of Attorney or Health Care Proxy executed by the incapacitated person are null and void, effective immediately.

Notice of any future applications with respect to this guardianship shall be served upon the incapacitated person, guardian for his personal care and property management needs, MHLS, Court Examiner and Attorney William F. Bogle, Jr.

The motion by counsel for the incapacitated person to dismiss the petition at the close of petitioner's case in chief is denied.

Attorney Kevin Wright, the former temporary property management guardian, is directed to file his final accounting no later than twenty (20) days from the date of this Decision. Thereafter, he may file an order on notice discharging him as temporary property management guardian. He is directed further to complete his reasonable compensation for services rendered, pursuant to SCPA §2307, and submit a separate order for the purpose of determining the same.

The petitioner's attorney is directed to prepare a Judgment consistent with the foregoing and serve a copy of it with notice of settlement upon counsel for the incapacitated person, the Court Evaluator, Giovanna Strano and Thomas Kelly within ten (10) days of the date of this decision.

Counsel for the parties are directed to forthwith retrieve the physical evidence introduced at the hearing within ten (10) days of the date of this decision and preserve the same through

any appellate process.

The foregoing constitutes the findings of fact and decision of the Court.

dated:Poughkeepsie, New York [*9]

November 26, 2012

ENTER

HON. JAMES D. PAGONES, A.J.S.C. Footnotes

Footnote 1:The temporary guardian for property management submitted a letter of resignation, dated November 13, 2012.

Footnote 2:Electric service was shut off for a while for non-payment during the Summer. This fact was revealed during the hearing for temporary property management guardianship.