Matter of Carl R. P. (Claire M. P.)

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[*1] Matter of Carl R. P. (Claire M. P.) 2014 NY Slip Op 51184(U) Decided on August 6, 2014 Supreme Court, Suffolk County Leis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2014
Supreme Court, Suffolk County

In the Matter of the Application of CARL R. P., Jr., Petitioner, for the Appointment of a Guardian of


Claire M. P., a.k.a. CLAIRE GABRIEL P. An Alleged Incapacitated Person.



By: Elizabeth Lambert Gullo, Esq.

Attorney for Petitioner

150 Broadhollow Road, Suite 120

Melville, NY 11747


By: Thomas J. Stock, Esq.

Attorney for AIP

80 Second Street

Mineola, NY 11501

Claire M.C.

4 Avenue B

Northport, NY 11768
H. Patrick Leis III, J.

Upon the reading of the following papers: (1) Order to Show Cause (001) granted by the Court on December 11, 2013 containing Verified Petition dated November 27, 2013 by Carl. P. for the Appointment of a Guardian pursuant to Mental Hygiene Law Article 81; (2) Hearings held in this Court on January 9, 2014 and April 28, 2014; (3) Memorandum of Law dated May 12, 2014 by Petitioner; (4) [*2]Reply Memorandum of Law received by the Court on May 21, 2014; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the petition is decided as follows: it is

ORDERED that the petition for the Appointment of a Guardian is denied.

This case brings up for review an all-too-familiar scenario playing out in guardianship courts, as disgruntled siblings are challenging with greater and greater frequency advance directives on the basis of an alleged breach of fiduciary duty on the part of the family member designated as attorney-in-fact.

Here, the alleged incapacitated person ("AIP") Claire P. is 81 years old and is living with her daughter Claire C. (a registered nurse), her grandson and her sister. She has raised five children. In 2003, the AIP executed advance directives and named her daughter, Claire C. as her power of attorney. The petitioner, Carl P., is one of her two sons.[FN1]

Being the subject of a guardianship proceeding can be upsetting. While every effort is made by the court to treat each individual with dignity and respect, a guardianship proceeding, by its very nature can result in the AIP experiencing embarrassment, hurt and feelings of indignity as well as the loss of power and control over his or her person or property. Further, the cost of an Article 81 proceeding, especially when contested, can be substantial for the AIP who will be statutorily required to pay for most, if not all, of the attorney fees and costs if a guardian is appointed.It is no surprise that many individuals, in an effort to avoid the prospect of a guardianship proceeding, execute advance directives. People who execute these documents at a time when they possess full capacity are led to believe that they have protected themselves from future guardianship proceedings. While most attorneys focus on the capacity of the grantor when drafting advance directives, as this case demonstrates selecting a responsible and trustworthy individual to serve as an agent pursuant to a power of attorney or health care proxy is just as important as assuring that the documents are executed during a period of time when capacity is not an issue.In this case, the petitioner perceives vast sums of his mother's assets being spent and fears that his sisters are taking advantage of her generosity and are allowing the AIP to enter into agreements that are not in her best interest. He has filed this petition for guardianship asserting that Claire C.'s failure to utilize her power of attorney to take control of the AIP's assets after indications of his mother's mental decline became apparent, is a breach of her fiduciary duty [*3]which renders said advance directives void.[FN2] He points to the fact that Claire C. has done nothing to stop his mother from spending large amounts of money, and that Claire C.'s failure to use the power of attorney to wrestle financial authority from the AIP and to use it to make all business and financial decisions is a breach of her fiduciary duty.

If we adopt petitioner's argument, however, the court would be creating a new duty for fiduciaries which does not currently exist. Children holding powers of attorney, at the first sign of cognitive decline, would be compelled to use these documents to deprive their parents of total control over their finances and the dignity and respect that go along with that control, or face the prospect of having their parents' advance directives declared void. Counsel cites no case or statute that would warrant the creation of such a duty. Nor can he show anything in the law that prevents a child from maintaining the appearance of his or her parent's continued authority over his or her finances for as long as possible.

Here, Claire C. testified that she discusses all of her mother's financial matters with her mother and has permitted her mother to continue to sign checks after they make financial decisions together. Since there is no credible evidence establishing that the AIP was not capable of understanding what she was doing, Claire C. has not breached her fiduciary duty by allowing the AIP to maintain some semblance of control by signing checks or by spending her own money the way the AIP sees fit.The court evaluator testified that she has reviewed all of the AIP's banking records and finds no indication of any misappropriation by Claire C. of her mother's assets. She further stated that although the spending could be considered extravagant, some months approaching $15,000.00, it does not amount to financial irresponsibility as all bills and expenses are all being paid. Moreover, the court evaluator concludes that the AIP understands what she is doing and wants to spend her money on family members.

While the AIP does spend large sums of money on possessions, travel, and gifts (for her daughters and grandchildren mainly), she does so of her own volition and the Court finds that she possesses the requisite capacity to know what she is doing. During the court's inquiry of the AIP, she demonstrated that she understood the proceeding. She was able to describe the President of the United States, his wife and his family although she could not remember his name. She also informed the court that she has not seen her son Carl in years, is not particularly fond of him and does not want to give him any of her money. Indeed, she testified that she wants to spend her money as she wishes. This includes being very generous to her daughters and her grandchildren. Furthermore, two of the AIP's daughters, Claire C. and Regina, testified credibly that their mother, although suffering from short term memory deficits, participates in and fully understands what is being done with her money.

The credible evidence establishes that although the AIP has significant short term memory deficits and can not state the current season or even the names of all of her children, she understands how her money is being spent and consults with both her daughter Claire C. and her attorney before making any significant financial decision. By contrast, the petitioner has not shown or proven that the AIP lacked understanding. Nor has he established that she did not participate in making each financial decision.While it could certainly be argued that the AIP's short term memory deficits and inability to discern the season are functional limitations which would warrant the appointment of a guardian, the presence of valid advance directives, executed when there was no question as to the AIP's capacity, prevents the court from appointing a guardian as there are clearly available resources in place sufficient to meet the AIP's needs.[FN3] Accordingly, the petition is denied.

The above constitutes the decision and order of this Court.Dated: August 6, 2014ENTER

Central Islip, NY

__________________________ Hon. H. Patrick Leis, III, J.S.C. Footnotes

Footnote 1:Carl P. has not lived near his mother for over 30 years and has had no contact with her since 2005 when she excluded him and his brother Edward from her will.

Footnote 2:Counsel for the petitioner does not challenge the capacity of the AIP when the documents were executed.

Footnote 3:Mental Hygiene Law §§ 81.02(a)(2), 81.03(e); Matter of Maher, 207 AD2d 133 (2d Dept 1994); see also Matter of Isadora R., 5 AD3d 494 (2d Dept 2004).

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