Matter of H.R.
Annotate this CaseDecided on November 13, 2008
Supreme Court, Nassau County
In the Matter of the Application of H.R., For a Judgment Pursuant to Article 81 Of the Mental Hygiene Law for the Appointment of a Guardian for I.I.R., A Person Alleged to be Incapacitated. S.L.C., Respondent.
XX/08
PETITIONER'S ATTORNEY
Mark Hus, Esq.
225 Broadway
New York, NY 10007
212-267-5000
COURT EVALUATOR
John Ciotti, Esq.
1551 Kellum Place
Mineola, NY 11501
516-747-1900
RESPONDENT
Pro Se
Angela G. Iannacci, J.
With respect to the petition seeking an appointment of a Guardian for the
personal [*2]needs and property of I.I.R., an alleged incapacitated
person and to declare to marriage to S.L.C. null and void, the court makes the following findings
of fact and conclusion of law by clear and convincing evidence:
This proceeding was brought pursuant to Article 81 of the Mental Hygiene Law and based on the entire record, this court has obtained in personam and subject matter jurisdiction. A hearing was held on the following dates: July 31, August 13, September 4, September 26, and October 23, 2008.
I.I.R., is 90 years of age, and is hard of hearing. He suffers from hypertension, congestive heart failure, hypercholester olemia, atherosclerotic heart disease, benign hypertrophy, depression, severe short term memory loss and dementia.On April 9, 2008 I.I.R. and S.L.C. were married in the Town Hall of Hempstead, New York. S.L.C. is 37 years younger than I.I.R.. They never lived together as husband and wife. S.L.C. maintained her residence in Brooklyn, New York.
I.I.R. was present at every court proceeding. S.L.C. was also present at every proceeding. She was named as a party to the proceeding and appeared pro se, waiving counsel.
The evidence, clearly established that I.I.R. has certain functional limitations which impair I.I.R's ability to manage his own needs and property, that he cannot fully understand such inability and, further, that he may suffer harm and danger if a Guardian is not appointed on his behalf.
Viewing the record in its entirety, and this hearing having been conducted pursuant to Article 81 of the Mental Hygiene Law, and the court having heard the proof and reviewed the petition and supporting papers, together with the report and testimony of the Court Evaluator, the court does hereby find by clear and convincing evidence that I.I.R. is an incapacitated person as defined under Section 81.02 of the Mental Hygiene Law, in that he is not able to provide for his own personal needs and property management.
It is therefore the decision of this court that a Personal Needs Guardian and Property Management Guardian shall be appointed and, based upon the evidence produced and the recommendation of the Court Evaluator, it is my determination that the most appropriate and suitable individual to serve in such capacity is his son, H.R..
The Order and Judgment to be submitted herein shall provide for the Guardians to have all those powers requested in the moving papers, as authorized under Sections 81.21 and 81.22 of the Mental Hygiene Law, and to make any and all decisions consistent with the functional limitations of I.I.R., and which decisions are obviously in his best interest and welfare. Specifically, with respect to financial matters, the Guardian shall have the following powers:
A. Enter into contracts;
B. Exercise options of the incapacitated person to purchasesecurities or other property;
E. Authorize access to or release of confidential records;
F. Apply for government and private benefits;
G. Marshal assets;
H. Pay the funeral expenses of the incapacitated person;
I. Pay such bills as may be reasonably necessary to maintain theincapacitated person; [*3]
J. Invest funds of the incapacitated person as permitted by section11-2.3 of the EPTL;
K. Lease the incapacitated person's primary residence for up to 18months;
L. Retain an accountant;
M. Pay bills after the incapacitated person's death provided theauthority existed to pay such bills prior to death until a temporaryadministrator or executor is appointed; and
N. Defend or maintain any judicial action or proceeding to aconclusion until an executor or
administrator is appointed.
With respect to personal needs, the Guardian shall have the following powers:
A. Determine who shall provide personal care or assistance to theincapacitated person;
B. Make decisions regarding social environment and other socialaspects of the incapacitated person's life;
C. Determine whether the incapacitated person should travel;
D. Determine whether the incapacitated person should possess alicense to drive and whether he should be allowed to use his car;
E. Authorize access to or release of confidential records; and
F. Apply for government and private benefits.
For good cause shown and notwithstanding § 81.29(d) of the Mental Hygiene Law to
the contrary, the power of attorney heretofore executed is revoked and cancelled upon issuance of
the commission to the Guardian.
The appointment herein shall be for an indefinite duration upon the filing of a
designation and an appropriate bond in the amount of $356,000.
The Guardian shall be required to complete a training program in accordance with §81.39 of the Mental Hygiene Law, as soon as one is made available in Nassau or in an adjoining county.
In addition to the foregoing findings, the Order and Judgment shall also provide for compensation to the Guardian which shall be fixed in further orders of the court.
It shall also provide for compensation to be paid from the Guardianship account to the petitioner's attorney and the Court Evaluator, both 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 thru the issuance of the commission to the Guardians.
In an Article 81 proceeding, annulment of a marriage is an available remedy where the evidence establishes that the party was incapable of understanding the nature, effect and consequences of the marriage (see, In re Joseph S. , 25 AD3d 804, 808 NYS2d 426 [2nd Dept. 2006]; In re Carmen R. , 15 Misc 3d 1126(A), 841 NYS2d 217 (NY Sup. 2007). The testimony of S.L.C. was found to be incredible. The record did not establish that S.L.C., a 53 year old woman and I.I.R., a 90 year old man, shared a romantic relationship or cohabitated together as husband and wife. There was no wedding ring and no change in residency for S.L.C.. The record did establish that S.L.C. purchased numerous items for herself and her family which were paid for by I.I.R., including but not limited to airline tickets to the Philippines, a car lease for her son, membership to Bally's Gym, and camera [*4]equipment in the amount of $2,400. Mr. I.I.R.'s testimony revealed that he had no recollection of approving of these purchases. In fact, Mr. I.I.R. was unable to recall that he had appeared in court on prior occasions and whether he knew the extent of his assets.
As such, for good cause shown, the marriage to S.L.C. is hereby declared null and void ab initio to April 9, 2008.
Based on all of the foregoing, the petition is granted in accordance with this court's findings.
Settle Order on Notice.
Dated:November 13, 2008
Angela G. Iannacci, J.S.C.
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