Matter of G.V.S.
Annotate this CaseDecided on December 16, 2011
Supreme Court, Bronx County
In the Matter of the Application for the Appointment of a Guardian for G.V.S., A Person Alleged To Be Incapacitated.
9172X/11
Attorney for Petitioner: Steven C. Bartley, Esq.
Court Evaluator: Melissa Lucas, Esq.
Alexander W. Hunter Jr., J.
A petition has been filed for the appointment of a guardian of the person and property of G.V.S., 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 other necessary interested persons required to be served under Mental Hygiene Law section 81.07 were timely served with the order to show cause and petition. Melissa Lucas, Esq., was appointed to serve as the court evaluator.
The hearing was held on October 25, 2011 and December 7, 2011. The person was not present at the hearing. It was determined that he would not be able to meaningfully participate in the proceedings even if they were conducted at his bedside because he is on a trachea tube and is non-responsive. Accordingly, his presence was waived. J.V., the person's son, G.B.V., the person's other son, L.D., the person's companion, A.P., the person's son-in-law, J.V.S., the person's brother, E.P., the person's daughter who is the petitioner herein, and the court evaluator testified at the hearing.
FINDINGS OF FACT
It is determined that the following findings of fact were established by clear and convincing proof upon the documentary evidence submitted and the testimony adduced:
1. The person is 73 years of age. The person presently resides at XXX, Bronx, New York.
2. The person was admitted to the nursing home on or about December 21, 2010. The person suffered a stroke (his third) while he was in Puerto Rico on or about September 15, 2010. His daughter, E.P., the petitioner, moved him from a hospital in Puerto Rico to Bronx Lebanon Hospital. He was then discharged to the nursing home. The person is currently in a vegetative state and is generally non-responsive. He has a trachea tube extending from an incision in his neck to a machine next to his bed to help him breathe. He is completely dependent on nursing staff for all of his activities of daily living. He has substantial assets including real property and [*2]a business in Puerto Rico but is unable to manage his finances, pay his bills or continue to run his business. As a result, the person is in need of someone to provide for his personal needs and property management. The guardianship is required for an indefinite duration.
3. After several adjournments, the guardianship hearing commenced on October 25, 2011. Petitioner had retained new counsel who requested an adjournment on that day to prepare for the guardianship hearing. However, there were family members who flew to New York from Florida and Puerto Rico to attend the hearing and offer testimony. Accordingly, at the court's direction, the court evaluator called three witnesses to testify.
4. J.V., the person's adopted son, stated that he resides in Florida. He stated that he objected to petitioner, E.P., being appointed as the guardian of the person and property of his father. J.V. stated that he did not believe E.P. was looking out for the person's well-being by failing to take taking into consideration a support system that would include everyone in his care. J.V. stated that he had been denied access to information as to the person's whereabouts and his health for the past seven (7) months. Petitioner was aware of the person's stroke but failed to contact him. He found about his father's stroke through his wife who became aware of it through a social network.
J.V. stated that he is not as close to the petitioner and his other two sisters, D.P. and S.V., as he should be. When he found out the person was at a nursing home, he went to visit him but encountered resistance from the staff when he asked for any information about the person. He was informed by nursing home staff that if he wanted information about the person, he would have to get it through the petitioner.
J.V. further stated that he has concerns about petitioner's involvement in the person's medical care. In particular, he stated that petitioner denied any requests to obtain speech therapy for the person or the placement of an instrument that would allow him to speak. He stated that since petitioner has tried to "control everything," she has denied him access to his father and a support system of people who want to be there for the person. J.V. also stated that he was not seeking to be appointed guardian but he would recommend that L.D. be appointed the person's guardian since she has been by the person's side for over eighteen (18) years. He stated that his father trusts L.D. and would want her by his side and that his father loves L.D. and she would look out for his best interest.
5. G.B.V. stated that he is the person's biological son. He resides in Puerto Rico and petitioner is his half-sister. G.B.V. stated that he, too, objected to petitioner's appointment as the person's guardian because she has denied him information about the person's stroke and health even though he lives in Puerto Rico and the person had his stroke there. He stated that he believed petitioner was not a good caretaker because she is denying the person's family access to him and information about his health. G.B.V. stated he did not know why petitioner stopped contacting him. He recommended that L.D. be appointed as the guardian because she has been with the person for over nineteen (19) years and he knows the person would want her to care for him.
6. L.D. stated that she has been in a relationship with the person for thirty-four (34) years and they have been "together" for the past twenty (20) years. She considers herself his wife and they have lived together for sixteen (16) years. L.D. stated that she and the person own the apartment she lives in on XXX Street. When he became ill in Puerto Rico, she was in New York [*3]and found out about his stroke through his employee and "right hand man." L.D. stated that at the time of his stroke, he was able to speak. When petitioner arrived in Puerto Rico the same day L.D. did, the first thing she asked was whether the person had changed his will because he had mentioned to her that he was going to change it.
When asked by the court evaluator whom should be appointed the guardian, L.D. stated that she believed his son J.V. should be appointed because he has "good feelings" toward his father. She did not believe that petitioner should be appointed guardian because there have been moments that she has not felt that petitioner had "true feelings" for the person's health or his improvement. L.D. stated that she would like to be considered as guardian because she knows the person well and any time he has had a set back she has seen him through it.
7. Petitioner's counsel called J.V.S., the person's brother, as a witness on behalf of the petitioner. J.V.S. stated that he flew to Puerto Rico to be with his brother upon learning of his stroke. He further stated that E.P. was taking good care of the person and he had no objections to petitioner serving as guardian.
8. A.P., the person's son-in-law and husband of petitioner, stated that he has known the person since 1978. A.P. is a pediatrician by trade and has his practice in Manhattan. He stated that petitioner is the office manager and referral specialist at his office. She handles thousands of patient records and has connections with several hospitals including Bronx Lebanon and Columbia Presbyterian. A.P. stated that he was aware of the person's medical condition and the fact that he has cerebral damage from three (3) strokes he suffered. He is currently in a catatonic state. A.P. identified a photograph of the person lying in his hospital bed with a trachea tube inserted, which was introduced into evidence by petitioner's counsel.
A.P. stated that he supports his wife's application to be appointed the guardian and if she is appointed, it will not impact her ability to work at her employment or to be a home maker.
9. E.P. stated that she is the person's daughter. She resides in XXX, New York with her husband and three (3) children, ages twenty-eight (28), twenty-two (22) and fifteen (15). E.P. stated that she is employed as the office manager at her husband's medical office where she handles referrals, billing and has direct daily contact with patients and doctors. She has experience dealing with medical records, doctors, hospitals and medical billing. E.P. stated that she studied medicine in the Dominican Republic where she obtained her medical degree. However, she is not licensed in New York because she decided to stay home to care for her children.
E.P. stated that she has bank accounts and assets, she takes care of the household finances and pays the bills. She has no bankruptcy filings and no criminal convictions.
E.P. further stated that she visits the person at the nursing home approximately two (2) times per week. She interacts with his doctors and nursing staff and makes sure that the person's needs are taken care of. E.P. also stated that she has been dealing with the finances associated with the person's medical care. The nursing home sends her the person's bills, which are numerous due to the fact that the person is on a feeding tube and he is not eligible for Medicaid. E.P. stated that she does not have the money to pay for the person's care because his assets are not liquidated.
E.P. stated that she received a telephone call informing her that the person was in the hospital in Puerto Rico and was very ill. She flew to Puerto Rico and stayed for six (6) days. [*4]While at the hospital, she completed paperwork for the person to enter a rehabilitation center upon his discharge from the hospital, then she returned to New York. She was then advised that the person was not stable enough to leave the hospital in Puerto Rico and was admitted to the intensive care unit at the hospital in Puerto Rico. E.P. stated that she brought the family together and told them that it would be better to transfer the person to New York where he would receive better medical care. They agreed to transfer him and she flew the person to New York where he was admitted to Bronx Lebanon Hospital.
E.P. further stated that she spoke with one of the person's employees and was able to have the person's business pay for the person's first month of care. She stated that she is aware that the nursing home has to be paid for the person's care. She filed the instant guardianship application because she believed the person should be taken care of the way he has taken care of everyone else. She stated that she did not believe anyone else in the family was more qualified to be guardian and no one filed a petition to be appointed guardian or submitted documents in opposition to her appointment.
E.P. stated that she is aware of the duties of a guardian and the fact that she would have to account for any expenditures from the person's funds. She wants to make sure the person gets the most humane treatment possible and will pay all of the person's outstanding bills. E.P. stated that she intended to sell as much of the person's properties as she could and establish a trust fund to pay his bills from the trust.
E.P. also stated that she has a relationship with her siblings like most other siblings do. She does not see them much since they live so far away but she has no animosity towards them. She stated that she is willing to keep her siblings informed about the person's medical condition.
Upon questioning by the court evaluator, E.P. stated that she did not believe she had a contentious relationship with her siblings. She did, however, recall informing the court evaluator that her brother, G.B.V., was a violent man and she wanted to obtain an order of protection against him. She also admitted that she informed the court evaluator that J.V. was not her brother but she claims that she may have been "angry" when she made that statement.
When advised that the person's liquid assets totaled approximately $1.7 million and that she would have to obtain a bond in that amount, E.P. stated that she would apply for one. She is pleased with the person's care at the nursing home and finds the staff to be considerate of the person's needs. She stated that she looked into other medical facilities but some were too far away for her to be able to visit the person regularly and others did not accept patients with the person's needs. With respect to the list of the person's assets that appear in her petition, the court evaluator asked E.P. about the approximate $1.5 million in assets that were not disclosed. E.P. stated that she was not aware of those additional assets.
10. The court evaluator stated that there was no question that the person was incapacitated and required the appointment of a guardian of his person and property. With respect to whom should be appointed to serve as the guardian, the court evaluator recommended that E.P. be appointed to serve as the guardian of the person and property as long as she is able to qualify for a bond. The court evaluator also recommended that an independent co-guardian be appointed due to the contentious relationship between E.P. and her siblings.
The court evaluator expressed her concern over the fact that E.P. has not permitted the family to have access to the person and did not contact his sons after he was moved to New [*5]York. Additionally, E.P. has informed the nursing home staff that L.D. was not permitted to ask them any questions about the person.
The court evaluator further stated that the person has maintained a thirty (30) year relationship with L.D. and she was informed by a niece that the person and L.D. held themselves out as husband and wife. They have joint bank accounts and jointly own an apartment in Manhattan. Although L.D. expressed an interest in serving as guardian, she later informed the court evaluator that she was not able to obtain an attorney and her own health has faltered due to the contention with petitioner. The court evaluator was also concerned that if an independent co-guardian was not appointed, L.D. would not be able to see the person and be involved in his care. She stated that the person responds to her and they had a loving relationship and she should be involved in his care. The court evaluator opined that an independent co-guardian would be able to mediate between the family members.
CONCLUSIONS OF LAW
1. Upon the testimony adduced at the hearing and the documents submitted, as well as the court evaluator's recommendation, E.P., the person's daughter, is hereby appointed the guardian of the person and property.
2. Pursuant to Mental Hygiene Law §81.19(d)(2), in making the appointment of a guardian, the court shall consider, "...the social relationship between the incapacitated person and the person, if any, proposed as guardian, and the social relationship between the incapacitated person and other persons concerned with the welfare of the incapacitated person." Although E.P. is appointed the sole guardian of the person and property, it is apparent to this court that the person's sons and L.D. care about the person, his health and welfare. The court evaluator noted that the person responds to L.D. and she and the person had a close, loving relationship for many years. Accordingly, bearing in mind E.P.'s duties as guardian, she shall not be permitted to deny the person's children, other family members, L.D. and her children, access to the person. E.P. shall permit them to visit the person and she shall keep the person's children, as well as L.D., apprised of the person's health and overall medical condition. Additionally, if the guardian decides to relocate the person to another facility or other location, she shall inform the person's children and L.D. of his whereabouts.
3. The guardian of the person is granted those powers listed under Mental Hygiene Law §81.22 which are necessary and sufficient to provide for the personal needs of the person. Those powers include as follows:
a) to determine who should provide personal care or assistance;
b) to make decisions regarding the social environment and other social aspects of the life of the person in accord with this court's directive that the guardian not be permitted to deny the person's other children, L.D. and her children, access to the person;
c) to choose the place of abode for the person, including, but not limited to nursing home or community residence;
d) to apply for government and private benefits on behalf of the person;
e) to authorize access to or release of confidential records;
f) to consent to or refuse generally accepted routine or major medical or dental treatment subject to the provisions of subdivision (e) of section 81.29 of this article dealing with life sustaining treatment; the guardian shall make treatment decisions consistent with the findings [*6]herein pursuant to Mental Hygiene Law §81.15 and in accordance with the person's wishes, including the person's religious and moral beliefs, or if the person's wishes are not known, and cannot be ascertained with reasonable diligence, in accordance with the person's best interests, including a consideration of the dignity and uniqueness of every person, the possibility and extent of preserving the person's life, the preservation, improvement or restoration of the person's health or functioning, the relief of the person's suffering, the adverse side effects associated with the treatment, any less intrusive alternative treatments, and such other concerns and values as a reasonable person in the person's circumstances would wish to consider;
g) determine whether the person should travel;
h) defend or maintain any civil judicial proceeding.
4. The guardian of the property is granted those powers listed under Mental Hygiene Law §81.21 which are necessary and sufficient to provide for the management of the person's assets. Those powers include as follows:
a) the guardian shall be allowed to make reasonable expenditures from the person's assets, for the purpose of providing support of the person in the event the annual income is insufficient to meet the person's needs;
b) to marshall and invest the person's assets in investments eligible by law for investment of trust funds and to dispose of investments so made and reinvest the proceeds as so authorized;
c) to pay any existing debts or claims which have been proven to the satisfaction of the guardian as being properly due and owing;
d) to preserve, protect and account for such property faithfully; to retain or employ attorneys, accountants or other professionals to assist in the performance of the duties of the guardian. However, payment of fees to such persons shall only be made with prior approval of the Court;
e) the guardian of the property may not alienate, mortgage, lease or otherwise dispose of real property without the specific direction of the Court obtained upon proceedings taken for that purpose as prescribed in Article 17 of the Real Property Actions and Proceedings Law, provided however, that without instituting such proceedings, the guardian of the property may, without the authorization of the Court, lease any real property for a term not exceeding five years;
f) pay funeral expenses.
5. These powers constitute the least restrictive form of intervention consistent with the person's functional limitations.
6. The guardian of the property shall, pursuant to Mental Hygiene Law §81.25, file a bond with sufficient sureties, conditioned that said guardian will, in all things, faithfully discharge the trust imposed herein, obey all the directions of the Court with respect to the trust, make and render a true and just account of all monies and other properties received pursuant to the authority granted herein and the application thereof, and of all acts performed in the administration of the trust imposed herein whenever required to do so by the Court, and will file the designation required by §81.25 of the Mental Hygiene Law.
The amount of the bond shall be the total value of the person's assets.
7. The guardian shall receive as compensation for performing her duties that compensation as is provided under §81.28 of the Mental Hygiene Law and as approved by the Court. [*7]
8. The court evaluator may make application to this court for her fees to be paid out of the person's assets.
9. The guardian shall file an interim report and annual report, in accordance with Mental Hygiene Law §§81.30 and 81.31, with the Guardianship Department of Bronx County, 851 Grand Concourse, Bronx, New York. Failure to file said reports may result in the removal of the guardian.
10. Failure of the guardian to comply with this court's directives regarding access to the person by family members and L.D. and her children, may also result in the removal of the guardian.
11. Petitioner is directed to submit an order and judgment on notice, along with a copy of this decision, in accordance with Mental Hygiene Law §81.16( c) and the guardian is directed to file her designation in accordance with Mental Hygiene Law §81.26. Said order and judgment shall be submitted in a timely fashion due to the exigency of these proceedings.
Date:December 16, 2011
J.S.C.
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