Matter of Ella C.

[*1] Matter of Ella C. 2011 NY Slip Op 52335(U) Decided on December 14, 2011 Supreme Court, Kings County Barros, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2011
Supreme Court, Kings County

In the matter of Ella C., An Alleged Incapacitated Person.



100016/11



Attorney for Petitioner

Polizzotto and Polizzotto,

LLC, by Bonnie Bernstein, Esq.

6911 18th Avenue

Brooklyn, New York 11204 (718) 232-1250

Court Evaluators,

Lisa Friedman, Esq.

Alexandra Schonfeld

New York Law School Elder Law Clinic

323 Madison Avenue, Suite 909

New York, New York 10016

(212) 953-1200

Attorney for AIP

Christine Mooney, Esq.

265 Sunrise Highway

Suite 1-119

Rockville Centre, New York 11570

(516) 816-6169

Betsy Barros, J.

On January 31, 2011, the petitioners, La Donna C., Kermit C. and Raymond C. Jr. , three of the four adult children of the alleged incapacitated person ( hereinafter Ms C. or AIP), filed an order to show cause (hereinafter OSC) and petition pursuant to Article 81 of the Mental Hygiene Law for the appointment of a personal and property needs guardian for Ms C. On February 18, 2011, the court signed the OSC, appointing Christine Mooney as counsel to Ms C. and the New York Law School Elder Law Clinic as court evaluator [FN1]. The matter was set for trial on March 22, [*2]2011.[FN2]

ALLEGATIONS IN THE PETITION.

The petition's specific and detailed allegations depicted a woman unable to manage her real and personal property and susceptible to financial exploitation. A much younger woman, Carmen Rios, whom Ms C. had recently befriended and whom she began referring to as a daughter, allegedly exploited Ms C. by misappropriating more than $7,500.00 of her funds and living rent-free in one of Ms C.'s two multiple unit buildings. Ms C. failed to file her income taxes and penalties accrued. The petition further averred that Ms C. was emotionally unstable, engaged in bizarre behaviors, suffered auditory hallucinations, and was unable to attend to her complicated medical conditions. Ms C. allegedly did not realize the nature and consequences of her inabilities, suffered harm thereby, and was likely to suffer more harm in the future.



FAMILY COURT PROCEEDINGS

On February 9, 2011, after the filing of the OSC, but before it was signed, Ms C. and hergranddaughter Faith, Raymond C.'s daughter, filed family offense petitions against all of the petitioners and requested orders of protection against each. Ms C.'s allegations against Raymond C. and LaDonna C. were in sum and substance that both had repeatedly telephoned and threatened to evict her tenant, had requested money, and had accused her of mental instability. Ms C.'s allegations against Kermit C. were that he came to Ms C.'s home with the police and engaged in the same conduct as his two accused siblings. According to Ms C., Kermit had keys to her buildings and collected her rent and kept it for himself. She said that her children frightened and upset her and that she wanted them to stop. Ms C.'s family offense petitions were transferred to this court and following a hearing dismissed by decision and order of this court dated April 26, 2011.[FN3]

On March 16, 2011, based upon a preliminary court evaluator report, this court appointed the Vera Institute of Justice Guardianship Project as temporary guardian of Ms C., restrained all of Ms C.'s children from interfering with her property rights, vacated any powers of attorney she had given, and restrained financial institutions from releasing Ms C.'s assets.

PRE-DIRECTIVES:

On June 9, 2010, Ms C. signed a durable power of attorney appointing Kermit C. as her [*3]attorney- in-fact. On July 7, 2010, Ms C. appointed Kermit C. as her health care proxy and LaDonna C. as her alternate agent.

Shortly after the OSC was filed, Ms C. signed new advanced directives, made several estate transactions, and with her daughter Cindy C.'s assistance, attempted to withdraw some $49,000.00 from her pension. On February 11, 2011, Ms C. purportedly created an irrevocabletrust in which to place all her assets, naming Cindy C., the only one of her four children who had not petitioned for guardianship, as trustee and "100% distributee of the trust." On March 1, 2011, Ms C. ostensibly gifted by quitclaim deed her two parcels of real property to Cindy C. individually. On March 15, 2011, Ms C. executed a will leaving her entire estate to her trust she created on March 15, 2011, as well as a durable power of attorney appointing Cindy as her attorney in fact and granting Cindy unfettered gifting authority [FN4]. The hearing took place amidst this whirlwind of transactions and family tumult.

THE HEARING.

The hearing was held on April 8, 2011 and April 12, 2011 and was concluded on April 26, 2011. In light of the highly contested nature of this hearing, and especially because of the AIP's vehement opposition to appointment of a guardian, the court paid close attention to the demeanor, body language, comportment and overall expression of all the witnesses both on and off the stand, and most especially those of the AIP [FN5].

Witnesses for the Petitioners

All the petitioning childrensave LaDonna C. [FN6] testified. Pastor Linda Goble, Ms Edna Mapp, an erstwhile friend and fellow congregant of Ms C., and Lisa C., granddaughter of Ms C. also testified. Ms C. was presented as a very accomplished, well-educated, 72-year-old woman who had raised four children, outlived a physically abusive and domineering husband, and had generously volunteered time and money to her church.

The petitioners' witnesses testified that in early 2010 there was a notable decline in Ms C.'s functioning. Ms C.'s decline was contemporaneous with an automobile accident in March 2010, when she was struck as a pedestrian by a vehicle and suffered a series of mini-strokes. [*4]

A generous and charitable woman, the AIP had recently been financially exploited by Carmen Rios, a woman of dubious character whom she had befriended and had taken into her home. Said individual had managed to steal several thousand dollars from Ms C. by means of forgery and manipulation. The aforementioned exploitation was apparently facilitated by Ms C.'s romance with the exploiter's profoundly disabled father, Serafin, and by the membership of the exploiter and her father in Ms C.'s church.[FN7]

Ms C.'s two multi-unit apartment buildings were in a significant state of disrepair. She had accrued high utility, water, and property tax arrears. [FN8] Her once pristine grooming had deteriorated. Her relationships became subject to sudden and unexplained upheavals. For instance, her son Kermit, with whom she had enjoyed a close and trusting relationship and who had taken her into his home following the 2010 vehicular accident, suddenly and inexplicably became the focus of her anger and discontent. She verbally abused and railed at him with the strongest invective and totally excised him from her life and affections.

Ms C. had always allowed various family members to reside in her buildings. Currently, Ms C. resides in 155 Saratoga Avenue. Ms C.'s daughter Cindy, who is in her early forties, resides and has apparently always resided in one or another of her mother's apartments and is currently a resident of 161 Saratoga Avenue, occupying, rent-free, one to three apartments with her fifteen (15) to thirty (30) cats. Ms C.'s granddaughter Faith [FN9] assists Cindy in caring for the cats. The bottom apartment in 161 Saratoga is a commercial space. Kermit rented out the commercial unit on his mother's behalf. It is currently the only income producing unit in the two buildings.

Ms C. had a falling out with Cindy and did not speak to her for a period of time in 2008 and had taken steps to evict her in 2010.

Witnesses for Ms C.

Ms C., Cindy C., and LaDonna C. testified for respondent.

Cindy C.'s testimony

Cindy C. testified that she operates a not-for-profit cat sanctuary, housing thirty cats, in two apartments at 161 Saratoga Ave. Faith serves as her assistant. Cindy receives social security disability benefits and is also supported by her mother. Cindy's primary objective is to fulfil her dream to move her cat sanctuary to Pennsylvania so that the animals could live outdoors.

Cindy admitted that her relationship with her mother had been strained and had only [*5]recently been rehabilitated because Cindy was the only child who had not sought to have her mother judicially declared incapacitated. Cindy also admitted that her mother had suffered a series of mini-stokes and needed assistance. She claimed, however, that her mother changed medication on or about March 29, 2011 resulting in a positive effect on her functioning, thereby obviating the need for any protective measures. (See Transcript, April 12, 2011 P. 25-27 )[FN10]

Cindy further testified that immediately after Kermit and LaDonna brought police to Ms C.'s home, she assisted her mother in transferring her mother's two buildings to herself, making herself Ms C.'s sole attorney-in-fact, and in establishing a trust in which Cindy was the beneficiary. Cindy procured the documents for her mother to sign and then took her mother to a notary to complete the execution of the documents. (See Transcript, April 12, 2011 p 43-46.)

LaDonna C.'s Testimony.

LaDonna testified via telephone and shed little light on the issue of her mother's capacity and need for a guardian. Although she was initially a petitioner, La Donna changed her mind about her mother's need for a guardian in the middle of the proceedings. When confronted with the allegations in the petition, she claimed to have signed the guardianship petition unread. It became readily apparent that LaDonna was unwilling to oppose her mother and Cindy, feared being disinherited, and wanted to shield her mother from the trauma of further proceedings.

Ms C.'s Testimony

Ms C. testified that her intervivos transfer of all her assets to her daughter Cindy was a safe estate plan. It was evident that Ms C. did not understand the significance of signing the documents, the procurement and execution of which had been orchestrated by Cindy. She had no understanding that under Cindy's "estate plan," the buildings were no longer hers. To Ms C., the transfer was merely a legal maneuver to thwart what she perceived as her sons' attempts to wrest her property from her. Ms C. was under the impression that she still had full control of her buildings. When asked what she would do if Cindy failed to pay the bills on her buildings, Ms C. replied that she trusted Cindy. When pressed further, she could not articulate a plan on where and how she would live or how she would rescue her properties if Cindy were irresponsible. Likewise, Ms C. offered no reasonable explanation for: 1. the dangerously high utility and property tax arrears, 2. the physical deterioration of her buildings, and 3. the lapsed property insurance on the buildings.

Ms C. characterized her son Kermit as wicked. She accused him of breaking water pipes and gas pipes in her buildings, claimed that he had stolen from her, and was otherwise malevolent toward her. ( See Transcript, April 12, 2011 P. 67, 68, 92, 93. ) When pressed, she could not articulate any basis for her claims or reconcile why she had gone on many vacations with him, had recuperated in his home after her accident, and had made him her attorney-in-fact. [*6]Exploration of her feelings about Kermit only served to incite further vituperation. She fixated on the alleged drug problem Kermit and Raymond had had twenty (20) years earlier. Ms C. remained steadfast in her belief that the proceedings were nothing other than her sons' vile attempt to humiliate her, steal her money, and ultimately place her in a nursing home. (See Transcript, April 12, 2011 p. 80- 84.)

Ms C. admitted that Faith had come at her, hammer in hand, breaking tiles and screaming that Ms C. should give Auntie Cindy 161 Saratoga Avenue. As a result of this incident, Ms C. stopped speaking to Cindy. (See Transcript April 12, 2011 P. 85-86.)

Ms C. claimed that she had recently authorized Cindy to run up huge credit card debt on her accounts and had allowed Cindy to sign checks. (See Transcript, April 12, 2011 p. 63- 64)

The Court Evaluators

Both court evaluators testified and submitted two (2) comprehensive written reports detailing Ms C.'s property interests, her recent transactions, and provided copies of the recently executed estate documents. The court evaluators were unequivocal in their recommendation that a guardian be appointed.

APPLICABLE LAW

A MHL Art. 81 guardian can only be appointed if the petitioner has demonstrated by clear and convincing evidence that such appointment is necessary to provide for such personal needs as food, clothing, shelter and/or for the management of the property and the financial affairs of a person unable to address these matters. ( See M.H.L. §81.02 (a) 1.) The court's determination that a guardian is needed rests on the inability of the person to manage her property or personal needs and on the person's failure to recognize the consequences of such inability. (See M.H.L. §81.02 1.(b) 1. and 2.) The court must assess the following: 1. How the AIP manages her activities of daily living; 2. Her understanding of the consequences of being unable to manage her activities; 3. Her functional limitations, preferences, wishes, and desires, and; 4. The prognosis for improvement. In making this assessment, the court must considerthe extent of the demands placed upon the AIP in looking after her personal needs and property interests. If it finds the AIP to indeed be an incapacitated person (hereinafter IP), the court is charged to formulate the least restrictive alternative to safeguard the IP's person and/or property. (See M.H.L. §81.02 ( c) 1.,2, 3., and 4 and M.H.L. §81.02 ( d) 1. 2).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

By clear and convincing evidence, this court finds Ms C. is an incapacitated person within the meaning of Article 81 of the Mental Hygiene Law. This court finds the witnesses for the petitioners credible. The court does not find the AIP to be a reliable witness and findsCindy to lack credibility.

Ms C.'s properties had fallen into serious utility and tax arrears, were uninsured and in a state of disrepair. Only one rent-paying tenant was left in both properties and that tenancy, held by a small store, was imperiled because of the lack of property insurance and because of the [*7]stench emanating from the apartments Cindy used to house her numerous cats. Ms C.'s apartment was cluttered with objects and debris. Repairs that had been started had been inexplicably abandoned. She had no comprehensive understanding of her assets, the extent of her estate, and most significantly no insight into her inability to manage her financial affairs.

Since her March 2010 automobile accident, Ms C. has elevated various people into positions of trust, whom she later either summarily excludes from her life or whom she allows to abuse her trust. Ms C. treated Carmen Rios as though she were her own child, and Ms Rios abused that trust by theft. Kermit C., apparently her most trusted son and traveling companion, was made Ms C.'s attorney in fact, only to be vilified and wantonly dismissed, in favor of her youngest daughter Cindy— the one child Ms C. had justifiably never entrusted with property nor any decision-making powers.[FN11] Likewise, three of her children found themselves answering family offense petitions filed by Ms C. And within a very short period of time, all of her grandchildren save Faith, were rejected as unworthy of her affections.

It is clear that Ms C.'s recent behavior is a marked departure from her general predisposition and indicative of her current incapacity with its attendant poor judgment and lack of insight. Ms C. is extremely susceptible to undue influence. She does not understand the negative consequences of her susceptibility, to wit- losing all the assets she and her husband worked a lifetime to amass. For example, in 2008 Ms C. had been able to resist Cindy and Faith's efforts to intimidate her into transferring one of her buildings. In 2010, however, Ms C. was financially exploited by Carmen Rios, and in February and March of 2011 Ms C was manipulated by Cindy into divesting herself of her two buildings, into the creation of trusts for Cindy's benefit, into attempting to withdraw a substantial portion of her pension and into disinheriting all her children except Cindy. All of the aforementioned appointments of Cindy as fiduciary and agent, as well as the estate documents, were executed in great haste and without benefit of counsel. Moreover, by running up huge credit card debt and emptying her bank accounts, Ms C. has become the financier of Cindy's ill-conceived dream of operating a cat sanctuary from a residential building. Ms C. is at grave risk of rapidly depleting her estate either through her own neglect or by the financial exploitation of others, and was, in fact , in the process of doing so, until this court appointed a temporary guardian and issued restraining orders.

This court must note that had Ms C.'s property interests not been so complicated, e.g., had her financial circumstances been limited to social security income and a rent stabilized apartment, a guardian may never need have been appointed. A less restrictive form of intervention, such as involuntary financial management through the auspices of HRA, may have sufficed. Given the complications inherent in holding two multiple dwellings in New York City,[FN12] navigating the maintenance of these buildings, structuring payment schedules for utility [*8]and tax arrears, safeguarding from exploiters her credit accounts, her pension, and the proceeds from a substantial Vioxx wrongful death action for her husband,can be satisfied only by the appointment of a property guardian. The duration of the appointment shall be indefiniteas improvement in her medical conditions, and age-related cognitive decline is doubtful.

Despite being her mother's agent, Cindy will not be appointed guardian. In her single-minded pursuit to realize her goal of operating a cat-sanctuary, Cindy has drained her mother financially and embarked on a campaign to distance and isolate Ms C. from anyone opposed to Cindy's plans.

Given Ms C. 's animus toward then, her petitioning sons recognize that they cannot properly serve as guardians and have declined to seek said appointment.[FN13] Appointment of LaDonna as guardian is likewise untenable, not just due to her bankruptcy, which renders her un-bondable [FN14], but because of her equivocation and mixed loyalties.

After the hearing, the court decided on the record that a personal guardian would be appointed. However, recent information from the temporary guardian indicates that a personal guardian is no longer required. Ms C. has left the jurisdiction for Belize, where apparently she is managing with the aid of siblings [FN15]. Moreover, Ms C.'s and Cindy's vehement opposition to the appointment of a guardian creates an environment in which a personal needs guardian would be unable to properly execute his or her duties because access to the IP and her abode would be near impossible.[FN16] The court finds that there is currently sufficient family involvement by relatives in Belize and Ms C.'s daughters to dispense with appointment of a personal guardian.

The least restrictive alternative is to appoint a property guardian and for the guardian to establish a monthly budget for Ms C.'s needs and for support of her dependents, Cindy and Faith, and for her charitable inclinations.

A separate order and judgment appointing a property guardian shall issue forthwith.This constitutes the decision and of this court.

________________________

Betsy Barros, J.S.C.

Dated:December 14th, 2011

Brooklyn, New York [*9]

Footnotes

Footnote 1: Counsel was appointed pursuant to MHL § 81.10 and the court evaluator was appointed pursuant to MHL §81.09. For some months each year, the Elder Law Clinic at New York Law School requests the pro bono appointment of a law student as court evaluator with an experienced elder law attorney as a mentor. This court appoints the Elder Law Clinic at New York Law School whenever possible, not only to expose law school students to interesting and challenging cases, but also to reduce legal costs.

Footnote 2:Ms C.'s children and grandchildren are referred to either by their first name alone or with the initial C. following their names throughout this decision.

Footnote 3: Ms C. withdrew her family offense petition against LaDonna C. The family offensepetitions filed by Ms C.'s granddaughter, Faith C., were not transferred to this court because this court has no jurisdiction over Faith C.

Footnote 4: The court is unclear if any of these deeds, trusts, or wills meet the minimum statutory requirements for validity.

Footnote 5: MHL § 81.11 ( c) requires that hearings to take place in the presence of the alleged incapacitated person , either at the court house or AIP's residence so as to give the court the opportunity to observe and assess the AIP and form its own impression as to the capacity of the AIP. Only the AIP's inability to meaningfully participate in the hearing, or the AIP's absence from the state, will result in a lawful waiver of the AIP's presence at a hearing.

Footnote 6: La Donna C., without formal application ,chose to remove herself as a petitioner in the case and testified via telephone on behalf of the AIP.

Footnote 7:Said church encouraged congregants to create their own "ministry" through good works and acts of generosity.

Footnote 8: Photographs depicting the poor condition of the propertieswere entered into evidence.

Footnote 9:As a teenager Faith C. allegedly fell victim to her mother's boyfriend's sexual abuse which had a profound traumatic effect on Faith's mental health. She currently receives SSI and since the aforementioned sexual abuse, has continually resided with her grandmother.

Footnote 10:Cindy testified that Ms C. changed her medication about two (2) weeks prior to the date of the testimony. This testimony indicates that the medication was changed on or about March 29, 2011.

Footnote 11:La Donna C. had been granted decision-making powers by Ms C. in administering Ms C's deceased husband's estate and prosecuting a wrongful death action. Ms C. spent time under Raymond C.'s roof recuperating after her 2010 accident.

Footnote 12:One building has four rental units and the other six. At least one building putatively can be leased to a commercial tenant.

Footnote 13: Sadly, the involvement of law enforcement has also served to chill the petitioners' ability to have personal contact with their mother.

Footnote 14: In the appropriate case, the inability to obtain a bond could be overcome with a restricted guardianship account.

Footnote 15:Within a few weeks of the hearing Ms C. went to visit her family in Belize, where she often spends her summers and has property.

Footnote 16:Cindy and Ms C. have done everything they can to prevent contact between Ms C. and her temporary guardian, including not being home for the guardian's visits. T hey have engaged in a campaign through use of the internet and visits to Washington, D.C. to malign and discredit the guardian, The Vera Institute of Justice, Inc. Guardianship Project.