Opinion
26048X/09
01-06-2012
In the Matter of the Application for the Appointment of a Guardian for A.L., A Person Alleged To Be Incapacitated.
Attorney for Petitioners: Elizabeth Valentin, Esq. Court Evaluator: Gregory D. Harmon, Esq.
Attorney for Petitioners: Elizabeth Valentin, Esq.
Court Evaluator: Gregory D. Harmon, Esq.
Alexander W. Hunter Jr., J.
A petition has been filed for the appointment of a guardian of the person and property of A.L., an alleged incapacitated person (hereinafter known as "the person"). The Court is satisfied that the person was served with the order to show cause and petition by personal delivery at least fourteen (14) 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. Gregory D. Harmon, Esq., was appointed to serve as the court evaluator.
The hearing was held on January 3, 2012. At the hearing the person was present and given the opportunity to testify but he did not answer any questions. M.L., the person's son, D.L., the person's other son, 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 83 years of age. The person presently resides at his two-family house located at 3312 XXXX Avenue, Bronx, New York.
2. The person has been diagnosed with dementia. In August 2011, he left his house to go to his doctor's appointment but ended up getting lost and was unable to remember how to return home. He was missing for approximately forty-eight (48) hours and when he was found, he was taken to New York Presbyterian Hospital for observation. According to M.L., the person's son, the person is ambulatory but requires assistance with his activities of daily living such as bathing, dressing and grooming. He is unable to prepare his own meals or take medications on his own. He is also unable to leave his house alone or make medical appointments. As a result, the person requires a guardian of his person.
The person is also unaware of what bank accounts he has and the location of the banks. He is unaware of the bills he has to pay and is unable to balance his checkbook. As a result, the person requires a guardian of his property.
The guardianship is required for an indefinite duration.
3. The person's income and assets consist of two Certificates of Deposit at HSBC Bank with a total of $73,024.99. He also has three (3) bank accounts at HSBC Bank held jointly with his son, M.L., with at total of approximately $58,225.62. The person also receives social security in the amount of $1,250.00 per month and a pension in the amount of $1,206.00 per month. Moreover, the value of his house is approximated to be $450,000.00.
4. M.L., the person's son, stated that he wished to be appointed the co-guardian of the person and property along with his brother, D.L. M.L. stated that he resides in the State of Maryland and, lately, he visits the person approximately two (2) times per month. M.L. stated that the person resides at his two-family house with his grandson, R.L., R.L.'s wife, a niece and his cousin, V.M. M.L. further stated that the person's dementia has affected his ability to take care of himself and be independent. He is currently being cared for by his cousin V.M. who is paid $2,000.00 per month to look after the person approximately five (5) nights per week. A home attendant takes care of the person during the day.
M.L. stated that the person is a native of Jamaica and prior to becoming ill, he visited Jamaica once a year where his son, D.L., his sister and several nieces and nephews still reside. Moreover, since the person became nearly deaf, he has deteriorated and has isolated himself to the point where he no longer travels or goes to church.
M.L. further stated that he is aware of the requirements of serving as guardian and is willing to comply. He is unmarried and has two (2) children. He has no criminal convictions and has never filed for bankruptcy. Moreover, if appropriate, he is willing to hire a geriatric care manager to assess the person's needs and implement them.
M.L. also stated that he wishes to relocate the person to Jamaica during the winter months to live with his son, D.L. He requests that he be authorized to spend up to $16,000.00 of the person's funds for the person's care and maintenance during his stay in Jamaica for the winter months. Upon questioning by the court evaluator, M.L. acknowledged that when the person is in Jamaica, he will be out of this court's jurisdiction if something should happen to him. Moreover, he admitted that the person is a wanderer and is combative. Upon re-direct, M.L. stated that the geriatric care manager that is hired can implement a plan of care for the person and mirror it in Jamaica.
5. D.L., the person's other son, stated that he wished to be appointed the co-guardian of the person and property of his father. He stated that the person used to visit him in Jamaica but the last time he went there was in 2005. D.L. stated that if the person is permitted to spend the winter months in Jamaica, the person would stay with him at his home and he would employ the services of a practical nurse to be with the person twenty-four (24) hours per day, seven (7) days per week. D.L. is willing to have a care plan reduced to writing and is willing to have a geriatric care manager set up a care plan for the person in Jamaica.
D.L. stated that he is employed as a supervisor at a telecom company in Jamaica. He stated that if the person is permitted to spend the winter months in Jamaica, he and his brother, M.L., will continue to take care of the person's house in New York. D.L. further stated that he has an idea of what the person's assets are, he has spoken to the person's doctors in the past, and his involvement as the guardian will be the same as his brother's.
6. The person was called to testify by the court evaluator, but was unable to answer any questions which were asked.
7. The court evaluator stated that after interviewing the person's family members and conducting his investigation, he believed that M.L. and D.L. should be appointed as the co- guardians and be given an opportunity to care for the person. He confirmed through his discussion with the person's doctor, that the person suffers from dementia, he wanders and has delusions. The person's cousin, V.M. takes care of the person when the home attendant is not working. The court evaluator further stated that when he visited the person, the person attempted to leave the house but V.M. blocked his exit. He stated that V.M. is familiar enough with the person that he knows when is a good time to take the person out for walks.
The court evaluator expressed his reservations about the person spending the winter months in Jamaica. He stated that because the person is a wanderer, if something should happen to the person, the court would bear some responsibility for permitting him to be taken out of the country. He could not recommend that the person be permitted to spend winter months in Jamaica unless he saw a proposed care plan.
With respect to a bond, the court evaluator stated that he believed the assets were insufficient for a bond to be imposed.
8. Petitioner's counsel requested that the bond be waived as the person does own property but is "cash poor." He is not on Medicaid and his medical care is paid by HIP insurance plan and cash.
CONCLUSIONS OF LAW
1. Upon the testimony adduced at the hearing and the documents submitted, as well as the court evaluator's recommendation, M.L. and D.L., the person's sons, are hereby appointed the co-guardians of the person and property.
2. The co-guardians of the person are granted the powers listed under Mental Hygiene Law §81.22 which are necessary and sufficient to provide for the personal needs of the person. These 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;
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 co-guardians shall make treatment decisions consistent with the findings 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.
3. The co-guardians of the property are 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 co-guardians 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 co-guardians 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 co-guardians. However, payment of fees to such persons shall only be made with prior approval of the Court;
e) the co-guardians 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 co-guardians 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.
4. The guardianship is required for an indefinite duration.
5. These powers constitute the least restrictive form of intervention consistent with the person's functional limitations.
6. The request by the co-guardians to relocate the person to Jamaica during the winter months is reserved pending the submission by petitioners' attorney of a detailed care plan for the person while he is in Jamaica as well as a clear estimate of the cost for same.
7. The co-guardians of the property shall, pursuant to Mental Hygiene Law §81.25, file a bond with sufficient sureties, conditioned that said co-guardians 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.
8. The co-guardians shall receive as compensation for performing their duties that compensation as is provided under §81.28 of the Mental Hygiene Law and as approved by the Court.
9. The co-guardians 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 co-guardians.
10. The court evaluator may make application to this court for his fees to be paid out of the person's assets.
11. Petitioner is directed to submit an order and judgment on notice, with a copy of this decision, in accordance with Mental Hygiene Law §81.16(c) and the co-guardians are directed to file their 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.
J.S.C.