Opinion
500198/2015
08-07-2020
In the Matter of the Application of Anonymous 1 and Anonymous 2, Petitioners, For the Appointment of a Guardian for v. Anonymous 3, A Person In Need of a Guardian.
For the Person in Need of a Guardian, Anonymous 3: Elizabeth Adinolfi, Esq. PHILLIPS NIZER LLP 485 Lexington Avenue, 14th Floor New York, New York 10017 (212) 841-0563 Email: eadinolfi@phillipsnizer.com For the Personal Needs Guardian, Barbara H. Urbach Lissner, Esq. Daniel G. Fish, Esq. McLaughlin & Stern, LLP 260 Madison Avenue New York, New York 10016 (212) 448-6224 Email: dfish@mclaughlinstern.com For the Property Guardian, Lawrence L. Flynn, Esq.: Slava Hazin, Esq. Warshaw Burstein, LLP 575 Lexington Avenue New York, NY 10022 (212) 984-7810 Email: shazin@wbny.com Amelia Brankov, Esq. Frankfurt Kurnit Klein & Selz PC 28 Liberty Street New York, NY 10005 (212) 826-5574 Email: abrankov@fkks.com For Anonymous 3's son, A.M.: Matthew S. Seidner, Esq. Law Offices of Seidner & Associates, PC The Garden City Center Building 100 Quentin Roosevelt Boulevard, Suite 401 Garden City, New York 11530 (516) 345-9900 Email: mseidner@seidnerlaw.com Anthony A. Capetola, Esq. Law Offices of Anthony A. Capetola Two Hillside Avenue Building C Williston Park, NY 11596 (516) 746-2300 Email: acapetola@capeto!alaw.com Brian R. Heitner, Esq. Seltzer Sussman Heitner, LLP Attorneys for Adam M. l00 Jericho Quadrangle Jericho, NY 11753 (516) 933-2600 Email: bheitner@sshlaw.com For Anonymous 3's daughter, L.M.: Linda A. Redlisky, Esq. Rafferty & Redlisky, LLP 438 Fifth Avenue Suite 101 Pelham, NY 10803 (914) 696-0006 Email: redlisky@randrlegal.com Harriet Newman Cohen, Esq. Cohen Rabin Stine Schumann LLP 11 Times Square - 10th Floor West 41st Street and Eighth Avenue New York, NY 10036 (212) 512-0825 Email: hcohen@crsslaw.com J. Ronald Denman, Esq. Grant Kindrick, Esq. Victoria Pearce, Esq. Bleakley Bavol Denman & Grace 15316 N. Florida Avenue Tampa, Florida 33613 (813) 221-3759 Email: rdenman@bbdglaw.com For ALP, company jointly owned by Anonymous 3 and his children: Jeffrey Eilender, Esq. Schlam Stone & Dolan LLP Attorneys for ALP 26 Broadway #19 New York, NY 10004 (212) 344-5400 Email: jeilender@schlamstone.com
For the Person in Need of a Guardian, Anonymous 3: Elizabeth Adinolfi, Esq. PHILLIPS NIZER LLP 485 Lexington Avenue, 14th Floor New York, New York 10017 (212) 841-0563 Email: eadinolfi@phillipsnizer.com For the Personal Needs Guardian, Barbara H. Urbach Lissner, Esq. Daniel G. Fish, Esq. McLaughlin & Stern, LLP 260 Madison Avenue New York, New York 10016 (212) 448-6224 Email: dfish@mclaughlinstern.com For the Property Guardian, Lawrence L. Flynn, Esq.: Slava Hazin, Esq. Warshaw Burstein, LLP 575 Lexington Avenue New York, NY 10022 (212) 984-7810 Email: shazin@wbny.com Amelia Brankov, Esq. Frankfurt Kurnit Klein & Selz PC 28 Liberty Street New York, NY 10005 (212) 826-5574 Email: abrankov@fkks.com For Anonymous 3's son, A.M.: Matthew S. Seidner, Esq. Law Offices of Seidner & Associates, PC The Garden City Center Building 100 Quentin Roosevelt Boulevard, Suite 401 Garden City, New York 11530 (516) 345-9900 Email: mseidner@seidnerlaw.com Anthony A. Capetola, Esq. Law Offices of Anthony A. Capetola Two Hillside Avenue Building C Williston Park, NY 11596 (516) 746-2300 Email: acapetola@capeto!alaw.com Brian R. Heitner, Esq. Seltzer Sussman Heitner, LLP Attorneys for Adam M. l00 Jericho Quadrangle Jericho, NY 11753 (516) 933-2600 Email: bheitner@sshlaw.com For Anonymous 3's daughter, L.M.: Linda A. Redlisky, Esq. Rafferty & Redlisky, LLP 438 Fifth Avenue Suite 101 Pelham, NY 10803 (914) 696-0006 Email: redlisky@randrlegal.com Harriet Newman Cohen, Esq. Cohen Rabin Stine Schumann LLP 11 Times Square - 10th Floor West 41st Street and Eighth Avenue New York, NY 10036 (212) 512-0825 Email: hcohen@crsslaw.com J. Ronald Denman, Esq. Grant Kindrick, Esq. Victoria Pearce, Esq. Bleakley Bavol Denman & Grace 15316 N. Florida Avenue Tampa, Florida 33613 (813) 221-3759 Email: rdenman@bbdglaw.com For ALP, company jointly owned by Anonymous 3 and his children: Jeffrey Eilender, Esq. Schlam Stone & Dolan LLP Attorneys for ALP 26 Broadway #19 New York, NY 10004 (212) 344-5400 Email: jeilender@schlamstone.com Shawn T. Kelly, J.
In this guardianship matter, Barbara Lissner, Esq., moved pursuant to Mental Hygiene Law (herein "MHL") §81.37 to resign as guardian of the person in need of a guardian (herein "PING"), Anonymous 3, due to unrelated personal matters. Anonymous 3 is a world-renowned artist who is currently 82 years old with advancing dementia. On May 16, 2020, Ms. Lissner withdrew her motion.
Prior to the withdrawal of the underlying motion, counsel for L.M., Anonymous 3's daughter, cross moved to remove Ms. Lissner pursuant to MHL §81.35 and to terminate the guardianship proceeding in its entirety pursuant to MHL §81.36. Additionally, L.M. requests hearings on this matter pursuant to MHL §81.11 and §81.36.
Over the course of this litigation, L.M. has retained the services of eleven different attorneys and is currently represented by six attorneys, one pending pro hac vice approval. When referring to counsel for L.M., this court is referring specifically to Linda Redlisky, Esq., who has been designated as counsel of record to avoid confusion.
Opposition papers to L.M.'s cross motion were filed by all parties including: Lawrence Flynn, Esq., the successor property guardian of Anonymous 3; A.M., Anonymous 3's son and an interested party; Elizabeth Adinolfi, Esq., counsel to Anonymous 3; and Barbara Lissner, Esq., Anonymous 3's current guardian.
Background
This proceeding was commenced on June 15, 2015, when Anonymous 1 and Anonymous 2, a purported friend, brought an Article 81 petition to have a property guardian appointed for Anonymous 3. Petitioners subsequently made an oral application, which was granted, to expand the petition to appoint a personal needs guardian for Anonymous 3. On September 15, 2015, Paul Mederos, Esq., was appointed as the interim temporary guardian of the person and property and Elizabeth Adinolfi, Esq., was appointed as Anonymous 3's counsel. It is evident that there has been familial tension since the beginning of this matter. The court evaluator noted that there have been allegations of mismanagement between different factions of Anonymous 3's friends and family and sadly, this remains true today.
Anonymous 1 was Anonymous 3's wife who was suspected of physically, verbally and emotionally abusing her husband and obstructing the guardian's efforts. Anonymous 1 subsequently committed suicide on June 9, 2019, a few days after Ms. Lissner was appointed and before Ms. Lissner could commission.
Ms. Adinolfi remains counsel for Anonymous 3 today.
On December 22, 2016, Judge Vistacion-Lewis issued an order and judgment finding that Anonymous 3 consented to being designated a person in need of a guardian. Sabrina Morrisey Esq., was appointed guardian of the person and Lawrence Flynn, Esq., was appointed guardian of the property. Ms. Morrisey subsequently moved to resign on May 2, 2018, citing difficulty getting along with Anonymous 3's family members. On October 18, 2019, Ms. Morrisey's motion was granted and Ruth Lippin was appointed guardian of the person. After further motion practice Ms. Lippin was discharged and Barbara Lissner, Esq. was appointed guardian of the person on June 4, 2019. Ultimately, Anonymous 3 has had three different personal needs guardians within two and half years. The result has been unnecessary upheaval and disruption for Anonymous 3.
Mr. Flynn remains guardian of the property today.
On September 25, 2019, Justice Kennedy held a telephone conference in which she denied L.M. permission to make the same application she makes here. Justice Kennedy found that Anonymous 3 is a PING and that absent withdrawal of his consent to the guardianship, or his objection to Ms. Lissner serving as his Personal Needs Guardian, there was no basis to remove Ms. Lissner or terminate the guardianship. Justice Kennedy issued an Order on October 3, 2019, denying L.M.'s request as moot in light of Anonymous 3's continued consent to the Guardianship and his approval of Ms. Lissner serving as his Personal Needs Guardian. Notwithstanding the foregoing, L.M. now moves to remove Ms. Lissner and terminate the guardianship. L.M.'s Cross Motion
Article 81 creates two classes of guardianships - consent guardianships wherein the AIP consents to the guardianship, and non-consent guardianships in which there is a finding of incapacity. The distinction between classes is codified in the appointment procedure, the findings the court must make, and the dispositional alternatives available (see MHL §81.02, §81.15 and §81.16).
The central issue in this case is the legal standard for removal or termination of a guardian in a consent guardianship pursuant to MHL §81.02, and further, who can move to remove or terminate a guardianship which was entered on consent. There is little case law regarding consent guardianships in general, but the statutory language of Mental Hygiene Law is instructive (see Matter of JS, 24 Misc 3d 1209[A], 2009 NY Slip Op 51328[U] [Sup Ct, Nassau County 2009] ["case law on the appointment of a guardian with the consent of the AIP pursuant to MHL §81.02(a)(2) is likewise lacking" citing Matter of Marie E. Loccisano, NYLJ, Aug. 28, 1996 at 27, col 6]). Although the statute refers only to an incapacitated person and makes no reference to the term "person in need of a guardian," or "PING" as a person adjudicated as a person in need of a guardian is customarily referred to, it does set forth a clear distinction between the findings a court must make when the alleged incapacitated person either agrees to the guardianship, as is the case here, or is found to be incapacitated.
To appoint a guardian on consent of an alleged incapacitated person, a court must first determine that the appointment of a guardian is necessary. Only after the court finds that a guardian is necessary, may the court permit an alleged incapacitated person to agree to the appointment (see Mental Hygiene Law § 81.02 [a]; Matter of Daniel TT, 39 AD3d 94 [3d Dept 2007]; Matter of Crump, 230 AD2d 850 [2d Dept 1996]; Matter of O'Hear, 219 AD2d 720 [2d Dept 1995]; Matter of Maher, 207 AD2d 133 [2d Dept 1994]). However, to reach this determination, the court must be satisfied that the alleged incapacitated person has the capacity to consent to the guardianship (see Matter of Loccisano, NYLJ, Aug. 18, 1996, at 23, col 1 [Sup Ct, Suffolk County 1996]).
Unfortunately, Article 81 of the Mental Hygiene Law is silent as to what standard should be applied to determine whether an alleged incapacitated person has the capacity to consent. In contrast, as noted in Banks v Richard A., 64 Misc 3d 191, 100 NYS3d 818 (NY Sup Ct 2019), the "legislature has provided guidance with respect to the standard to apply when determining if a person had capacity to execute a power of attorney (see General Obligations Law §§ 5-1501 [2] [c]; 5-1501B [1] [b]) and a health care proxy (see Public Health Law § 2981)." (see Banks, 64 Misc 3d at Footnote 1). Generally, to determine an individual's capacity to consent to a guardianship, courts will consider the individual's ability to meaningfully participate in the proceedings, his or her understanding of the nature of the proceedings, and his or her comprehension of the personal or property management powers being relinquished. This inquiry is not equivalent to the examination that occurs in a full hearing to determine incapacity (see In re Buffalino, 39 Misc 3d 634, 636, 960 NYS2d 627 [2013]).
Though Mental Hygiene Law §81.15(a) distinguishes between a person agreeing to the appointment of a guardian and a person determined by the court to be incapacitated, the rest of Article 81 is silent as to the parameters of a consent guardianship. However, it is undisputed that allowing an alleged incapacitated person to consent to a guardianship permits the individual to sidestep a court determination of being found incapacitated. Further, it also allows the individual to maintain a greater degree of dignity and often creates a less adversarial guardianship (see re Buffalino, 39 Misc 3d 634 [2013]).
The Appointment of a Personal Needs Guardian
At the outset, L.M.'s contention that the court sua sponte appointed a personal needs guardian for Anonymous 3 is without merit. The September 23, 2015 order issued by Judge Visatacion-Lewis explicitly states that counsel for Anonymous 1, an initial petitioner in this matter, made an oral application to expand the petition to include a personal needs guardian, which was unopposed by all parties. After a thorough hearing, Judge Visatacion-Lewis issued an Order and Judgment on December 22, 2016, stating that Anonymous 3 was found to be a person in need of a guardian and that he consented to the appointment of a guardian for both his personal and property needs.
As a noticed interested party, L.M. was given the opportunity to oppose this oral application at the time it was made and she failed to do so.
Removal of Guardian Lissner
L.M. cross moves to remove Ms. Lissner based upon alleged repeated and egregious violations of both the judgments of this court and Mental Hygiene Law. Specifically, she contends that Ms. Lissner has failed to act in Anonymous 3's best interests by not allowing him the greatest amount of independence and self-determination of which he is capable in three main ways: (1) by failing to consult with L.M. regarding Anonymous 3's medical decisions; (2) by isolating Anonymous 3 from his family and friends; and (3) by limiting L.M.'s contact with Anonymous 3.
Removal of a guardian pursuant to MHL §81.35 specifies who may bring a removal action, "[t]he motion may be made by the person examining initial and annual reports pursuant to section 81.32 of this article, or by any person entitled to commence a proceeding under this article, including the incapacitated person." As a person entitled to commence a proceeding under MHL §81.06, L.M. would have standing to commence a removal motion.
L.M. argues that Ms. Lissner has failed to consult with Anonymous 3's children regarding "major medical decisions" as outlined in the Order and Judgment. L.M. asserts that not having access to Anonymous 3's "health and medical information" is a direct violation of the Order and Judgment. Specifically, L.M. raises the fact that she was notified by email more than an hour after an ambulance was called when Anonymous 3 suffered stroke-like symptoms. The court, as well as A.M. and L.M., were notified promptly after Ms. Lissner took all necessary steps to ensure her ward's health and wellbeing. Specifically, once notified by an aide of Anonymous 3's symptoms, Ms. Lissner immediately called Anonymous 3's nurse practitioner and then his doctor. She then coordinated video calls with both individuals so that they could quickly evaluate Anonymous 3's symptoms to determine whether an ambulance should be called. Due to the COVID-19 Pandemic, there were significant concerns as to the safety of having Anonymous 3 hospitalized. Once an ambulance was called and Anonymous 3 was transported to the hospital, Ms. Lissner informed the court, A.M. and L.M. of the situation and stated that she would update them as soon as she had more information. Thus, the court is satisfied that Ms. Lissner acted in an appropriate manner by contacting medical professionals who could evaluate and assist in getting Anonymous 3 medical care as quickly as possible and by promptly informing the parties and the court.
Secondly, L.M. alleges that Ms. Lissner has isolated Anonymous 3 from his family and friends in violation of the Order and Judgment and the Mental Hygiene Law. L.M. argues that prior to Ms. Lissner's appointment, Anonymous 3 was a highly social person who spoke and visited with his friends daily. To the contrary, Ms. Adinolfi, Anonymous 3's attorney, states that she interviewed several of Anonymous 3's long term aides in 2019 and that they stated that Anonymous 3 did not have many visitors and that he rarely, if ever, spent time on the phone. Ms. Adinolfi further states that from the beginning of the guardianship, individuals would come forward claiming to be "dear friends" of Anonymous 3's, but that A.M., L.M., and Anonymous 1 all had different opinions about who was a true friend and who was trying to take advantage of Anonymous 3. There have been significant concerns over individuals taking advantage of Anonymous 3. In May 2019, without the prior guardian's knowledge, a New York Times reporter was allowed into the apartment to interview Anonymous 3, resulting in a highly damaging article that referenced evidence from the guardianship proceeding that could only have been provided by one of the parties. The article also referenced unnamed "friends" as sources.
L.M. also raises Ms. Lissner's decision to remove five cats that were living in Anonymous 3's apartment. This decision was made in conjunction with Ms. Adinolfi who noted that a full-time housekeeper would spend considerable time caring for the cats instead of her other duties as the animals would defecate throughout the apartment. Additionally, as Anonymous 3's condition has changed and he is at risk of falling, the cats present a trip hazard. Since the cats have been removed, Anonymous 3 has not expressed any feeling of missing the cats.
Further, the rules established by Ms. Lissner regarding visitation procedures were approved by Justice Kennedy and have not been an issue for A.M. or Elizabeth, Anonymous 3's ex-wife and the mother of both L.M. and A.M. A.M. and Elizabeth have recognized that the procedure has been set up to provide notice so that Anonymous 3's schedule, whether previously arranged activities or activities of daily living, isn't disrupted. Unfortunately, Anonymous 3 has previously missed engaging in activities he enjoys such as yoga, as well as necessary medical treatments and physical therapy, when visitors disrupted his schedule. More alarmingly, the court notes that visitors in the past have prevented Anonymous 3 from eating and sleeping on schedule. Ms. Lissner's visitation procedure is designed to avoid these types of specific occurrences and maintain Anonymous 3's well-being.
As to visitation with L.M., the schedule and its associated procedures apply equally to A.M., who has not had any issue with arranging for multiple visits per week with his father and has also taken his father on several outings. In May 2020, Ms. Redlisky, counsel for L.M., emailed the court seeking guidance on why Ms. Lissner would not allow L.M to shelter in place with Anonymous 3 during the current COVID-19 pandemic. As the guidance around appropriate measures to ensure the safety of older individuals with pre-existing health concerns was rapidly changing, the court issued the June 16, 2020 order allowing Ms. Lissner to use her discretion in allowing appropriate social-distanced, outdoor visitation to occur. Despite efforts by both the guardian and the court to ensure that visitation could safely occur during the pandemic, L.M. did not to return from California to see her father.
L.M. and her attorneys have repeatedly and improperly communicated with the court. In the past five months, this court has received over forty-five emails from the various counsel representing L.M., far in excess of any other party in this litigation. Further, evidence has also been sent to the court including iphone videos in an effort to engage in improper "email-litigation."
Ms. Lissner, in consultation with his doctors, has made sure that Anonymous 3 has an appropriate daily schedule, a healthy diet, and appropriate exercise. Ms. Lissner noticed that there were no books available for Anonymous 3 to read so she encouraged the aides to take him to places like Barnes and Noble so that he could purchase books. She has purchased puzzles for him, something he greatly enjoys. As there was no radio in the apartment, Ms. Lissner purchased one so that Anonymous 3 could enjoy the jazz music he loves. Anonymous 3 is a longtime yoga practitioner, so Ms. Lissner arranged for him to have sessions with a yoga instructor. Ms. Lissner noticed that the bathrooms were unsafe as Anonymous 3 has developed a balance issue over the years, so she arranged for the bathrooms to be renovated and for him to receive physical therapy. Ms. Lissner has also made sure that Anonymous 3 has art, including several of his own pieces, hanging on his walls and has even ensured that he has art supplies and a sunny studio room where he can create art once again. All the parties, except for L.M., agree that Ms. Lissner has improved Anonymous 3's life greatly.
Lastly, L.M. alleges that her inability to contact Anonymous 3 whenever she wants is a violation of the Order and Judgment and the Mental Hygiene Law. L.M. has raised on multiple occasions her alleged inability to call her father whenever she wants. This issue was conferenced extensively before this court and the court is satisfied that Anonymous 3 may answer or not to answer his phone as he sees fit. Moreover, pursuant to the Interim Order, dated April 21, 2020, the court resolved this issue by ordering that Anonymous 3 may, at his discretion, receive telephone calls from his daughter at 11:00 a.m. and 8:30 p.m., and that his friends may call him and he may, at his discretion, receive their calls between the hours of 4:00 p.m. and 5:00 p.m. The Order further provides that nothing therein prevents these individuals from making or receiving calls outside of these hours. Despite L.M.'s repeated allegations that she has been prevented from contacting her father, Anonymous 3's health care aides have informed the court that L.M. has not made any effort to call regularly or in a timely manner and routinely calls five minutes or less before Anonymous 3's bedtime.
Pursuant to MHL §81.35, "the court appointing a guardian may remove such guardian when the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just." But where allegations of misconduct are either broad and conclusory or allege minor deficiencies, removal is unwarranted (In Re Solomon, 123 AD3d 934 [2d Dept 2014]; Matter of Beverly YY, 79 AD3d 1442 [3d Dept 2010]; Matter of Mary Alice C, 56 AD3d 467 [2d Dept 2008]; Matter of Carmen H, 90 AD3d 1049 [2d Dept 2011]). Contrary to L.M.'s broad conclusory arguments, the court is satisfied that Ms. Lissner is fulfilling her responsibility as guardian. Most importantly, Anonymous 3 is satisfied with his current guardian and her actions. Accordingly, L.M.'s cross motion for the removal of the guardian of personal needs, Ms. Lissner, is denied.
Termination of the Guardianship
In the present case, L.M. is also cross moving to terminate the guardianship of her father, Anonymous 3. Anonymous 3 is not withdrawing his consent, and in fact through his counsel, is expressing satisfaction with how the guardian is handling his personal needs. In opposition, the guardian, A.M., Anonymous 3's son, counsel for the PING and the PING's property needs guardian all submit papers contending that not only does L.M. not have the standing to move to terminate this consent guardianship, but that even if she did, as the PING has not withdrawn his consent the cross motion should be denied.
Mental Hygiene Law §81.36 expressly refers to discharge and modification of powers for incapacitated individuals and makes no mention of consent guardianships. Further, Mental Hygiene Law §81.36(d) provides that when a party seeks to terminate a guardianship, the burden of proof shall be on the person objecting to such relief to establish by clear and convincing evidence that the guardianship should not be terminated. (See Banks v Richard A., 64 Misc 3d 191, 193—94, 100 NYS3d 818 [NY Sup Ct 2019]; Matter of Marvin W., 306 AD2d 289 [2d Dept 2003]; Matter of Shari P., 24 Misc 3d 1222[A], 2009 NY Slip Op 51557[U] [Sup Ct, NY County 2009].)
In Banks v Richard A., 64 Misc 3d 191 (2019), the Supreme Court was faced with a motion to terminate the guardianship brought by the individual who had consented to his guardianship two years prior. The guardian was opposing the termination of the guardianship and therefore had the burden to establish by clear and convincing evidence that the guardianship should not be terminated (see Banks, 64 Misc 3d 191 [2019]). In Matter of Buffalino, the supreme court reasoned that the difficulty with consent guardianships is that in the event that the individual subsequently withdraws consent, or becomes incapable of consenting to an expansion of the guardian's powers, a new application to appoint a guardian must be filed to establish the person's incapacity (39 Misc 3d 634, 960 NYS2d 627 [2013]).
In the present case, an analysis under §81.36, would result in the burden falling on Anonymous 3 himself to establish by clear and convincing evidence that the guardianship should not be terminated. As the guardianship is a guardianship based on consent, not incapacity, forcing Anonymous 3 to bear the burden under §81.36 is wholly inappropriate. This court cannot find any basis in the statute or in any caselaw which suggests that §81.36 should apply to consent guardianships (see In re Mary WW., 125 AD3d 1269, 1271, 4 NYS3d 381 [2015] [holding that "Mental Hygiene Law §81.36(d) is inapplicable" when a PING's daughter brought a motion to modify the guardianship and the PING had not withdrawn her consent]). Accordingly, L.M.'s motion to terminate this guardianship is summarily denied.
Even if we assume that §81.36 applies to the present case and that L.M. has standing to bring a motion to terminate the guardianship (see §81.36 stating, "[t]he application for relief under this section may be made by the guardian, the incapacitated person, or any person entitled to commence a proceeding under this article"), Anonymous 3 is not withdrawing his consent to the guardianship and in fact, through his counsel, is expressing satisfaction with how the guardian is handling his personal needs. Anonymous 3's continued consent would satisfy any burden he might have under §81.36 and the result would be the same, the motion would be denied.
The very first section of Article 81 of the New York's Mental Hygiene Law states:
The legislature declares that it is the purpose of this act to promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person's life. MHL §81.01
To allow L.M. to vitiate Anonymous 3's consent would clearly be inconsistent with his personal wishes, preferences and desires and would deny him any amount of independence and self-determination. The Appointment of L.M. as Personal Needs Guardian
L.M. does not specifically ask this court to appoint her as personal needs guardian for Anonymous 3, but she devotes a substantial portion of her brief to implicitly argue that the court should do so. The court will briefly address those arguments. Despite citing several cases for the proposition that courts should appoint family members as guardians when possible, L.M. ignores the fact that Anonymous 3 himself objected to having L.M. appointed as his guardian, that he was found to have the capacity to consent, and in fact did consent to having a personal needs guardian appointed by the court. Counsel for Anonymous 3, Ms. Adinolfi, has represented him since September 2, 2015. She states that based upon discussions with Anonymous 3, as his children L.M. and A.M. are unable to work together to be co-guardians, Anonymous 3 does not want to choose one child over the other to be his guardian and would prefer a court appointed independent guardian (see Matter of Audrey D., 48 AD3d 806, 807 [2d Dept 2008][noting that the alleged incapacitated person's preference supersedes the general preference for family member to be appointed guardian]).
Request for a Hearing
L.M.'s request for a hearing is denied. MHL §81.11 applies to the determination of whether the appointment of a guardian is necessary. L.M. is not seeking to have a guardian appointed. Moreover, when the present consent guardianship was established a hearing was conducted and L.M. was noticed as an interested party. At this juncture, there is no need to conduct a further hearing as to the necessity of a guardian and Anonymous 3's capacity to consent to a guardianship. Both have already been established by clear and convincing evidence. But most importantly, Anonymous 3 has not withdrawn his consent. Additionally, applying MHL §81.36 would yield the same result. A hearing may be dispensed with if the court finds that good cause has been shown. Moreover, because L.M. failed to come forward with evidentiary proof in admissible form which substantiates her conclusory allegations of misconduct, no hearing is required (see Matter of Beverly YY, supra, at 1443 [compare DeCarlo v Eden Park Health Servs., Inc., 66 AD3d 1211, 1213 [2009]). Accordingly, L.M.'s request for a hearing is denied.
Constitutional Arguments
L.M. strongly asserts that the court is "preventing her from caring for her father" and as such, her constitutional rights "enshrined in Mental Hygiene Law" are being violated. Specifically, she states that her freedom of intimate association is being violated. L.M. also claims that A.M., contrary to his own assertions, has "opted out of caring for" his parent by following the court's Order and Judgment, which appointed personal needs and property guardians with Anonymous 3's consent. L.M. argues that Article 81 "requires, (i) that a guardianship be 'the least restrictive form of intervention' possible (MHL §81.01), (ii) that the court consider 'the sufficiency and reliability of available resources' (MHL §81.02), and (iii) that the court consider 'the social relationship between the incapacitated person and the person proposed as guardian' (MHL §81.19(d)(2))." L.M. has not produced any evidence that the court, or Ms. Lissner as personal needs guardian, has intentionally interfered with her "constitutional right" to interact with her father. Instead, there have been multiple court orders clearly outlining the procedures for visitation and setting times Anonymous 3 would be available to answer his phone. Indeed, the very video evidence L.M. submits in support of her cross motion shows that when she does visit Anonymous 3, her visits are completely unencumbered.
Lacking in the nearly seven pages of constitutional arguments L.M. makes is the acknowledgement that her father, Anonymous 3, has not been found to be incapacitated, actively participated in his Article 81 hearing, and consented to having a personal needs and property guardian appointed to assist him. Further, as Ms. Adinolfi states, Anonymous 3 does not want to choose one child over another, and therefore has agreed to have a neutral court appointed party act as his guardian. Anonymous 3 has expressed that he is happy and satisfied with Ms. Lissner. As Anonymous 3 has not withdrawn his consent, L.M.'s constitutional contentions will not be considered.In conclusion, L.M.'s cross motion is denied in its entirety.
This constitutes the Decision and Order of the Court.
$SIG$
DATE August 7, 2020