Matter of Tanya M. (Josette M.)
Annotate this CaseDecided on January 12, 2023
Supreme Court, Nassau County
In the Matter of the Application of Tanya M.
For the Appointment of a Guardian
of the Person and Property of
Josette M., an Alleged Incapacitated Person.
Index No: 850084-I-2022
Kylie Najarro — Court Evaluator
320 Carleton Avenue, Suite 3200, Central Islip, NY 11722
knajarro@nycourts.gov
(631) 208-5319
Taniesha Allen — Attorney for AIP
121 Hofstra University Rm 307, Hempstead, NY 11549
Taniesha.s.allen@hofstra.edu
(646) 422-9526
Elliot Schlissel —Petitioner's Counsel (Pascale M.)
479 Merrick Road, Lynbrook, NY 11563
elliot@sdnylaw.com
(516) 561-6645
Pascale M. — Daughter
Tanya M. — Pro Se Petitioner Gary F. Knobel, J.
This is a guardianship proceeding for an order appointing petitioner-daughter Tanya M., or cross-petitioner daughter Pascale M., as the guardian for the personal and property needs of Josette M., petitioners' mother. An extensive hearing was intermittingly conducted by this Court over several weeks.
Before a court may appoint a guardian, it must determine: (1) that a guardian is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person; and (2) that the person agrees to the appointment, or that the person is incapacitated within the meaning of the statute (Mental Hygiene Law §§ 81.02[a][1], [2]). A person is considered incapacitated when the person is likely to suffer harm because: (1) the person is unable to provide for personal needs and/or property management; and (2) the person cannot adequately understand and appreciate the nature and consequences of such inability (Mental Hygiene Law § 81.02[b][1], [2]).
It is undisputed that Josette M., an 88-year-old woman, currently residing at a medical facility after suffering a fall. Josette M. suffers from dementia and memory deficiency impairment and needs the assistance of a guardian as she is unable to provide for her personal needs and property management and cannot adequately understand and appreciate the nature and consequences of such inability. Accordingly, the Court finds that the petitioner and cross-petitioner have established by clear and convincing evidence that Josette M. is an incapacitated person as defined by Mental Hygiene Law § 81.02. Thus, the only question which remains is who should be the guardian for Jossette M.?
When selecting a guardian for an incapacitated person, the primary concern is what is in the best interests of the incapacitated person (Matter of Marilyn A.I. [Kevin D], 106 AD3d 821, 822, 964 N.Y.S.2d 640 [2013]). This determination involves the judgement of the facts and discretion of the court (Matter of Von Bulow, 62 NY2d 221, 224, 470 N.E.2d 866, 481 N.Y.S.2d 67 [1984]). However, even when the court finds that a guardian is necessary, it is not required to appoint the person proposed by the petitioner (Matter of Loftman [Mae R.], 123 AD3d 1034, 1035, 999 N.Y.S.2d 166 [2014]). A stranger should not be appointed as guardian unless it is impossible to find someone qualified within the family circle or their nominees (In re Naquan S., 2 AD3d 531, 767 N.Y.S.2d 906 [2nd Dept. 2003] citing Matter of Diestz, , 287 N.Y.S. 396 [1936]; Matter of Klein, 145 AD2d 145, 538 N.Y.S.2d 274 [1989]; see also Matter of Gustafson, 308 AD2d 305, 764 N.Y.S.2d 46 [2003]; Matter of Robinson, 272 AD2d 176, 709 N.Y.S.2d 170 [2000]; Matter of Chase, 264 AD2d 330, 694 N.Y.S.2d 363 [1999]). However, when there is dissension between family members a court is justified in appointment of a neutral third-party [*2]guardian (Matter of Wynn, 11 AD3d 1014, 1015-1016, 783 N.Y.S.2d 179 [2004]; cf. Matter of Weisman, 112 AD2d 871, 8720873, 493 N.Y.S.2d 833 [1985]; Matter of Lyon, 52 AD2d 847, 382 N.Y.S.2d 833 [1976], affd 41 NY2d 1056, 364 N.E.2d 847, 396 N.Y.S.2d 183 [1977]). Even when multiple members of a family desire the appointment as sole guardian, and are qualified to do so, it may be in the best interest to appoint one of the siblings and have independent co-guardians additionally appointed to avoid conflicts and advise the court (see, In re Margaret S., 2006 NY Misc. LEXIS 2833, 236 N.Y.L.J 9 [Sup Ct., Richmond 2003]).
Here, there are two daughters/sisters who both want to be Josette M.'s guardian, and frankly it is difficult to decide which person should be the guardian since they both merit the appointment. However, they cannot work together as there is dissension between them, which was clear during the hearings and substantiated by the court evaluator in her testimony and report; the court evaluator recommended that an independent person from the Part 36 fiduciary list be appointed guardian. Usually the Court will pick an independent guardian under these circumstances. Josette M. indicated her desire to have her children equally in control. Despite the children wanting the best for their mother, and Josette M.'s wishes that they have equal say, unfortunately it is not in the best interest of Josette M. to have both individuals appointed as co-guardian as it may lead to future contention and disagreements resulting in harm to Josette M.
However, based on the testimony and evidence adduced at the hearing, the Court finds that it is in the best interest of Josette M. to have at least one of the petitioners appointed as guardian along with a neutral third-party co-guardian and to assist in all disputes. In view of the fact that Pascale M. currently pays Josette M.'s bills, does her laundry, and provides her with other necessities, the Court finds that it is in the best interest of Josette M. that cross-petitioner Pascale M. be appointed guardian of the personal needs and property management needs of Josette M., and that Olguine Charleston (Fiduciary No. xxxxxx), West Babylon, New York, be appointed as co-personal needs guardian.
Although Josette M. needs a guardian for an indefinite period of time, the appointment of Pascale M. and Olguine Charleston shall be for a period of one year from the date of the order and judgment; Pasquale M. shall bring an order to show cause at that time to either continue serving as guardian or request that another person serve as guardian, and the appointments herein will be reassessed. The order and judgment to be submitted herein shall provide for the guardians to have all of the powers requested in the cross-petition as authorized under sections 81.21 and 81.22 of the Mental Hygiene Law. Any prior advanced directives which may have been executed by Josette M. are revoked. Pascale M. is directed to obtain a bond in the amount of $100,000.00; however, that amount may be adjusted lower or higher after the initial 90 day report in the event there are assets marshalled which are greater than $100,000.00. In the event that Josette M. does not reside with Pascale M., Pascale M. shall visit with Josette M. at least 24 times per year; the co-personal needs guardian shall meet with Josette M. a minimum of 12 times per year. Pascale M. shall be required to complete, at no cost, a training program given online via the internet by the Office of Court Administration in accordance with section 81.39 of the Mental Hygiene Law. Pascale M. may request, if she wishes, reasonable compensation for the services she will provide as guardian.
With respect to compensation to the court appointees, the court directs court appointed counsel and the court evaluator to submit, at the time of the submission of the order and [*3]judgment, an affidavit or affirmation of the services they provided in this proceeding, and the Court will award reasonable compensation from the guardianship estate. The geriatric care manager, Virginia Belling, shall continue in that capacity and submit her affidavit of the services she provided at the time of the submission of the order and judgment. Counsel for Pascale M. may submit his affirmation for the professional service he provided to Pascale M. and the court will award reasonable compensation from the guardianship estate.
Based on all of the foregoing, the cross-petition is granted in accordance with the findings as indicated above, and the order and judgment shall be settled on appropriate notice to the petitioner, court appointed counsel, and the court evaluator.
The foregoing constitutes the decision and order of this Court.
January 12, 2023HON. GARY F. KNOBEL J.S.C.
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