Lillian Wan, J.

Ira Salzman, Esq. (attorney for the guardian, New York Foundation for Senior Citizens Guardian Services, Inc.)

Leslie Salzman, Esq. (attorney for Richard A.)

Jonathan L. Geballe, Esq. (court evaluator)

Lillian Wan, J.In this Guardianship proceeding, Richard A., represented by Cardozo Bet Tzedek Legal Services, has filed a motion seeking to terminate the guardianship. The guardian, New York Foundation for Senior Citizens Guardian Services, Inc. (hereinafter NYF or guardian), opposes the motion. The Court held a hearing on Mr. A.'s application over several court dates. Based on the reasons set forth below, the motion is granted.

NYF was appointed as guardian of Mr. A.'s personal needs and property management on August 31, 2017 for an indefinite duration. (See Order and Judgment of the Hon. Andrea Masley). Following an Article 81 hearing, the Court found Mr. A. to be a "person in need of a guardian" having the ability to consent to the appointment of a guardian. Mr. A. consented to the appointment of a guardian based on exigent circumstances that existed in his life at the time of the hearing. Mr. A. had broken his neck, rendering him wheelchair-bound. Based on his severe physical limitations he was unable to manage payment of his rent and was facing eviction. The Court found that Mr. A. had certain functional limitations, and that he understood those limitations, and the resulting harm that could be caused to him based on those limitations. The Court's decision was based, in part, on the testimony of psychiatrist Dr. Gregory Lacchini, who testified that Mr. A. suffered from depressive disorder. Pursuant to the Order and Judgment, the guardian was given personal and property management powers, including the authority to defend the landlord-tenant case and to marshal and manage Mr. A.'s income and assets.

The central issue in this case is the legal standard for terminating a guardianship that was entered on consent of the alleged incapacitated person pursuant to MHL § 81.02. Mr. A. now seeks to withdraw his consent and opposes the continuation of the guardianship. While case law is sparse regarding due process procedures that must be followed upon withdrawal of the person's consent in a consent guardianship, and on consent guardianships in general, the statutory language of Mental Hygiene Law is instructive. Although the statute refers only to an incapacitated person and makes no reference to the term "person in need of a guardian," 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.

Specifically, MHL § 81.02(a) distinguishes between a guardianship based on the consent of the person and a guardianship based on a finding that such person is incapacitated. The statute states that a court may appoint a guardian if the court determines that the appointment is necessary to provide for the personal needs and financial affairs of that person and "that the person agrees to the appointment, or that the person is incapacitated." (emphasis added). Likewise, MHL § 81.15(a) sets forth the findings that a court must make when a person agrees to the guardianship, while MHL § 81.15(b) only addresses findings to be made by the court when determining that a person is incapacitated. MHL § 81.16, which addresses dispositional alternatives, separately refers to a person who has agreed to the appointment of a guardian and a person who is found to be incapacitated. See MHL § 81.16(c)(1) and (2). Notably, though the phrase "person in need of a guardian" is never used in Article 81, the phrase is widely used in guardianship proceedings and court orders. See In re Landis , 114 A.D.3d 458, 979 N.Y.S.2d 577 (1st Dept. 2014) ; In re Jaar-Marzouka , 51 Misc.3d 1226(A), 2016 WL 3044209 (Sup. Ct., Dutchess County 2016).

Pursuant to MHL § 81.36(a)(4), the court can discharge a guardian if it appears to the satisfaction of the court that "the appointment of the guardian is no longer necessary for the incapacitated person, or the powers of the guardian should be modified based upon changes in the circumstances of the incapacitated person." MHL § 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 Matter of Marvin W. , 306 A.D.2d 289, 760 N.Y.S.2d 337 (2d Dept. 2003) ; Matter of Rebecca P. , 24 Misc.3d 1222(A), 2009 WL 2170239 (Sup. Ct., N.Y. County 2009).

Matter of Deborah P. , 133 A.D.3d 602, 18 N.Y.S.3d 710 (2d Dept. 2015) involved an individual who initially consented to the appointment of her sister as guardian for the limited purpose of establishing and funding a supplemental needs trust. Approximately eight years later, the alleged incapacitated person filed a petition to terminate the guardianship. The supreme court held a hearing in which the guardian asked to resign from her position as guardian but requested that a successor guardian be appointed in her place. The trial court accepted the guardian's resignation and removed her as guardian. However, the court denied the alleged incapacitated person's application to terminate the guardianship, making a determination that she was an incapacitated person pursuant to MHL § 81.02, and appointed a successor guardian. The Appellate Division, Second Department reversed the trial court's decision and set forth the legal standard for the appointment of a guardian:

In exercising its discretion to appoint a guardian for an individual's property [a] court must make a two-pronged determination: first, that the appointment is necessary to manage the property or financial affairs of that person, and, second, that the individual either agrees to the appointment or that the individual is ‘incapacitated’ as defined in Mental Hygiene Law 81.02(b). Id. , at 603, 18 N.Y.S.3d 710, quoting Matter of Maher , 207 A.D.2d 133, 139-140, 621 N.Y.S.2d 617 (2d Dept. 1994).

The Deborah P. Court found that the guardian failed to meet her burden of proof by clear and convincing evidence that the alleged incapacitated person was unable to manage her finances or understand or appreciate her limitations as required by MHL § 81.02(2)(b).

In Matter of Buffalino , 39 Misc.3d 634, 960 N.Y.S.2d 627 (Sup. Ct., Suffolk County 2013), 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. In Buffalino , the alleged incapacitated person consented to the appointment of a guardian in 2009. The original guardian resigned three years later and a successor guardian was appointed. Subsequently, counsel for the alleged incapacitated person filed a motion to discharge the successor guardian, and the successor guardian cross-moved to have the person declared incapacitated. The court found that a consent guardianship based on an individual's agreement does not morph into a non-consent guardianship with a finding of incapacity because an "emergency occurs and an expansion of powers becomes necessary." Id. , at 637, 960 N.Y.S.2d 627. Such an outcome would be violative of due process, as it would effectively be a declaration of incapacity without having first held a hearing to determine capacity. In granting the motion to discharge the guardian, the Buffalino court noted that at the time of the original appointment the alleged incapacitated person suffered from brain cancer, had no resources, and required 24-hour home care and assistance with all his activities of daily life. However, at the time of the hearing his circumstances had improved, he no longer needed 24-hour home care, was able to attend to all of his activities of daily living without assistance, and had other available resources.

In the instant matter, at the hearing held on March 4, 2019, Mr. A. testified that he currently resides at an assisted living facility in Staten Island, and that since the time of the initial guardianship hearing his condition has improved "99%," and he is able to walk with a walker that assists him with balance. Mr. A. further testified that he has been hospitalized on occasion for alcoholism, but has not consumed an alcoholic beverage since December 2018. Mr. A. acknowledged that he was asked to leave an assisted living facility because he "got drunk." With respect to his financial resources, he further testified that his social security income is approximately $ 1,300 per month, and that his initial goals are to find himself a new apartment and establish himself in an alcohol rehabilitation program. Mr. A. expressed frustration about the guardian controlling his monthly stipend. On cross-examination, Mr. A. stated that he is able to shop and cook for himself, and that he can ambulate well enough to step over the ledge of a bathtub without assistance.

The guardian presented the testimony of NYF case manager Sharon Morton-Georges, who testified that she was Mr. A.'s case manager from December 2017 to January 2019. Ms. Morton-Georges testified that she arranged for the placement of Mr. A. at Brooklyn Boulevard ALP Assisted Living Community in April 2018, but that he was discharged from that facility for drinking alcohol. Ms. Morton-Georges stated that Mr. A. acknowledged his alcohol addiction and agreed that he needed help. She referred Mr. A. to outpatient alcohol rehabilitation services, but his attendance was initially inconsistent. By September 2018, Mr. A.'s attendance at an outpatient treatment program had improved, however he was subsequently hospitalized. Mr. A. eventually spent three weeks at an inpatient treatment program in Westchester County in November 2018. After his successful completion of that inpatient program, Mr. A. was discharged to the shelter system.

The guardian then presented the testimony of NYF case manager Yasmin Abdou. Ms. Abdou testified that she began working with Mr. A. on January 2, 2019. She testified that she provided him with $ 204 in cash on January 2nd, which Mr. A. spent in approximately eight or nine days on cigarettes and food. Ms. Abdou further stated that Mr. A. complained that he does not like his current assisted living facility because he has to share a room with another resident and the other residents of the facility are mentally ill. Ms. Abdou explained that this facility provides Mr. A. with a case manager, daily meals, and laundry and housekeeping services. She further stated that Mr. A. has recently expressed a willingness to attend outpatient rehabilitation treatment.

Because Mr. A. has withdrawn his consent, continuing the guardianship in this matter would require a finding of incapacity. No formal application seeking a determination of incapacity is properly before the Court. Prior to commencement of the hearing, the Court inquired of counsel for the guardian as to why a new application seeking a finding of incapacity was not filed. Counsel responded that the community guardian was precluded from doing so because filing an application would violate Social Services Law § 473-d. Counsel was steadfast that only the City of New York could bring this application because it would be a "new petition." The guardian has maintained throughout the entire proceeding that the only issue for the Court to consider is whether a guardian is still necessary, and that the Court need only engage in an analysis under MHL § 81.36 to reach that determination. However, because Mr. A. wishes to withdraw his consent to the guardianship, MHL § 81.02 requires that the Court's inquiry go beyond an assessment of merely whether the guardianship continues to be necessary. In order to continue the guardianship without Mr. A.'s consent, the Court must make a determination that he is incapacitated.

The Court is not persuaded by the guardian's argument that the only difference between a guardianship that is granted on consent and one where there is a finding of incapacity is the self-awareness of the alleged incapacitated person. The Court is equally unpersuaded by the guardian's contention that the term "incapacitated person" under Article 81 includes both individuals who have consented to guardianships and those who have not consented. There is no authority cited for this proposition, and MHL § 81.02 clearly creates two distinct types of guardianships, one based on an individual's consent and one based on a finding of incapacity. In support of its argument, the guardian relies on various sections of Article 81 that delineate the duties of the guardian which refer only to the "incapacitated person," such as the guardian's duty to "visit the incapacitated person not less than four times a year." The guardian further argues that the phrase "incapacitated person" must necessarily include an individual who has consented to the appointment of a guardian, because there would otherwise be no visitation requirement in those cases, which would be an absurd result. MHL § 81.20(1)(5).

The possible inartful drafting of Article 81 cannot be the basis for continuing a guardianship predicated on consent when the person subsequently withdraws that consent.

Here, because the guardian chose to oppose Mr. A.'s motion rather than make a new application for a determination of incapacity, the guardian is asking this Court to make a finding of incapacity without having first satisfied many of the procedural safeguards and processes expressly outlined in Article 81. These safeguards include proper notice pursuant to MHL § 81.07, whereby Mr. A. would be informed of the powers which the guardian would have the authority to exercise on his behalf, and a verified petition pursuant to MHL § 81.08, which would include a description of Mr. A.'s functioning level, and specific factual allegations regarding Mr. A.'s inability to manage his personal needs and provide for property management and the likelihood of suffering harm due to these inabilities. Further procedural safeguards outlined in MHL § 81.07(d) include the requirement to bring an application by order to show cause, and a specified legend in twelve point or larger bold face double-spaced type that enumerates the person's rights, such as the right to demand a trial by jury, and the right to have a lawyer of your own choosing. Article 81 also mandates the appointment of a court evaluator, a neutral party who is intended to be the "eyes and ears" of the court, and who is tasked with conducting a thorough investigation of the claims made in the application. 55th Management Corp. v. Goldman , 1 Misc.3d 239, 244, 768 N.Y.S.2d 747 (Sup. Ct., New York County 2003).

The court evaluator's investigation includes, but is not limited to, interviews with multiple parties and professionals who may be familiar with the person's condition and alleged disabilities, an assessment of the person's functioning with respect to the activities of daily living, the prognosis and reversibility of any physical and mental disabilities, alcoholism or substance dependence, an assessment of the person's understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living, and inspection of medical and financial records. See MHL § 81.09. The statute further requires the court evaluator to submit a written report and recommendation to the court which must include the court evaluator's personal observations as to the alleged incapacitated person's condition, affairs, and situation.

In the instant case, the Court reappointed the original court evaluator, Jonathan L. Geballe, Esq. for the limited purpose of the motion to terminate the guardianship. Mr. Geballe testified and was subject to cross-examination, and his report was received into evidence. Mr. Geballe testified that Mr. A. could not articulate his financial plans but was adamant about being in control of his finances, and that he demonstrated a clear desire to resume his creative life through photography and sculpture. Mr. Geballe recommended that Mr. A. "continues to need some assistance with a guardian." Mr. Geballe also testified that while Mr. A. did not show any signs of dementia or an inability to communicate, he had some concerns that Mr. A. would not follow through on his promises to continue the rehabilitation process. According to Mr. Geballe's report, Mr. A. does not have a disabling psychological condition that impairs his ability to function or take care of his daily needs. As the court evaluator's role was limited to making a recommendation on the instant motion, a full incapacity analysis pursuant to MHL § 81.09 was neither conducted nor expressly required.

Even assuming, arguendo , that the Court has the authority to continue the guardianship solely upon a finding of necessity, this Court would decline to do so as the guardian has failed to establish by clear and convincing evidence that the guardianship should not be terminated. There is no dispute that Mr. A. is an alcoholic. Mr. A. recognizes this, and when the Court inquired whether he believed he was an alcoholic, he answered, "I know so," acknowledging that he has been an alcoholic for 10-15 years. The mere use or even abuse of drugs or alcohol by itself does not generally constitute a functional limitation by clear and convincing evidence under Article 81. See Matter of Doe , 181 Misc.2d 787, 696 N.Y.S.2d 384 (Sup. Ct., Nassau County 1999). Similarly, proof of mental illness alone does not does not establish incapacity. See Matter of Fritz G. , 164 A.D.3d 503, 77 N.Y.S.3d 872 (2d Dept. 2018) ; Rivers v. Katz , 67 N.Y.2d 485, 504 N.Y.S.2d 74, 495 N.E.2d 337 (1986). The record has established that Mr. A. is now differently situated than he was at the time the guardian was initially appointed, and that his physical condition has greatly improved. In 2017, Mr. A. was debilitated due to a spinal injury, confined to a wheelchair, and unable to care for his daily needs without assistance. Mr. A. is no longer in that condition and is now able to ambulate freely and perform activities of daily living on his own.

Accordingly, it is hereby

ORDERED AND ADJUDGED, that the motion is granted and the guardianship is terminated; and it is further

ORDERED AND ADJUDGED, that the guardian is directed to file its final accounting, and the guardian will be discharged upon settlement of its final account.

Settle Order.

This constitutes the decision and order of the Court.