Opinion
917XX-10.
Decided April 25, 2011.
Attorneys for Petitioner: Stephen B. Kaufman, Esq. and Howard Vargas, Esq.
Attorney for the Alleged Incapacitated Person: Lauren B. Hyman, Esq., from Mental Hygiene Legal Service.
Court Evaluator: Linda Chin, Esq.
A petition has been filed for the appointment of a guardian of the person and property of L.M., 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 days prior to the return date and that all other persons required to be served under Mental Hygiene Law section 81.07 were timely served with the order to show cause and petition. Linda T. Chin, Esq., was appointed to serve as the court evaluator.
The hearing was held on February 22, 2011. At the hearing, the person was not present and her appearance was waived by her attorney. Adela C., who provides home care services for the person and was employed by the petitioner, the petitioner, who is the person's brother, John V., a family friend 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:
The court evaluator met with the person on December 12, 2010 at her home. The person, 71 years of age, weighs approximately 80 pounds and is five feet five inches tall. She sat on a chair in the kitchen. She looked disheveled and the sweater she was wearing was torn in the back. Several of her front teeth were missing.
Her brother, the petitioner introduced the evaluator as someone from the court. She screamed at her brother, "You got some damned nerve bringing someone here." And "I can't stand you."
She told the evaluator that she did not need a guardian and she indicated that she did not want her brother to be her guardian "because he only cares about himself."
Later by phone, the person stated that she did not need a guardian and did not want her brother to be her guardian. She said that she can make her own decisions.
Regarding John V., the proposed co-guardian, the person objected to his serving as the co-guardian, indicating that he had helped to involuntarily place her in Jacobi Hospital twice.
"I assume they want to control my money."
The person conceded that she needed some help with shopping and cooking, but not from the type of guardian that was discussed in the court papers.
A.M., the petitioner and the person's brother and only sibling, is 70 years old. He is a retired New York Fire Department firefighter. He retired to Florida in 1990. He has been living in the basement apartment of their home for approximately the last seven months while the person resides in the upstairs unit. He has three children who live in Florida as well. Both of their parents are deceased.
Their father died in 2005. Their mother died on August 6, 2010. She was the primary caregiver for the person and handled all of her financial affairs and personal needs. Since her death, A.M. has stepped in to fill the shoes of the mother and to provide the care and treatment that the person needs. However, he cannot address any of her medical needs without becoming the personal needs guardian
Their parents left the person in excess of one million dollars. Testamentary trusts were created in their parents' wills. A.M. is the trustee of both trusts. Upon the death of the person, petitioner's children will receive the remainder of these two trusts.
Petitioner has hired a home attendant to care for his sister from 12 p.m. to 8 p.m., Monday through Friday.
A doctor and psychiatrist have examined the person at her home.
On September 3, 2010, the person was involuntarily admitted to the psychiatric emergency room at Jacobi Hospital. However, the hospital's social worker could find no reason to hold her involuntarily. As such, the person was released to her friend, R.W.
The person is afraid to go outside of the house. The person has, essentially, not left the house in the last 40 years. She will not change her clothes or bathe and sleeps on a chair in the kitchen.
The person is ambulatory, is able to go to the toilet without assistance and can eat by herself.
Of significant note was the testimony of John V., called as petitioner's third and final witness. John V. is an attorney and a family friend, who has known the person all of his life. The person used to be his babysitter. He cares for her and wants her to receive the proper medical attention. John V. was a proposed guardian along with the petitioner in this proceeding.
John V. stated that the person needs a guardian but that the guardian should not be the petitioner due to serious conflicts of interest.
A: I think that it would be extremely helpful to him (petitioner) if he had someone appointed by your Honor to assist him for a number of reasons. Number one, his family and children are in Florida, he need to get home and see his family. Number two, he's under tremendous pressure on one hand, he loves his sister and want to care for her, but on the other hand, he's holding millions of dollars in trust for L.M. and his children are the beneficiaries of that trust. And he feels a lot of pressure on one hand to care for the sister and another, on the other hand to protect her funds for future generations. And I think it would be in his best interest and L.M.'s if he served along with somebody appointed by the court.
Q: Mr. V., my question was to the personal needs guardian?
A: I heard A.M. testify and I was some what shocked by his testimony. He talked about L.M.'s medical needs but never once about her psychological problem that prevents her from going outside. L.M., in my opinion, is as intelligent as you or I. She is extremely intelligent, if I could, Your Honor, she reminds me of a woman in a burning building in shock. All someone need to do is lift her up and carry her out of the building, and get her some psychological help and she would be fine. And A.M. never once mentioned getting L.M. any psychological help. I know he knows she need that so I'm at a loss. I believe that with psychological help L.M. could be fine in several months.
Q: When the application for the appointment of a guardian arose that was prepared by a law firm that you are familiar with?
A: Yes.
Q: You also requested to be appointed co-guardian?
A: After a discussion with A.M. and several members of his family I offered to serve as L.M.'s co-guardian out of a sense of — Q: The property or the person?
A: I'm sorry, I don't recall, whatever the Court want.
Q: No, your papers. When you put the papers in was it for co-guardian of the property or co-guardian of the person?
A: I don't recall, it was six months ago, I believe. I don't know. I don't remember which co-guardian it was.
Q: Certainly, the firm that originally started this issue, you know there was an off the record conversation, the former application has been made and the attorney has asked to be withdrawn as counsel.
In that vain we are also going to be amending the petition not to include property management, just for personal needs guardian. I don't know if that is going to have some kind of pecuniary effect on you, having asked to be co-guardian or not but certainly that would be in the discretion of the court.
A: L.M. need someone to protect her interest. A.M. is an ideal candidate, however, A.M. need someone, and L.M. need someone independent appointed by this court to help and to make sure that L.M.'s funds are used for L.M.'s care. I have no particular desire to serve unless it is the Court's wish. I just want to see L.M. get the care she needs.
Q: You understand he is currently the trustee, correct?
A: Yes.
Q: And there are no allegations of financial mismanagement or anything like that. We are talking about personal needs help to care for L.M. which apparently she need. It appear to be a personal care need — THE COURT: Is there a question.
Q: You don't think A.M. is the one to do that?
A: Mr. Vargas, a couple of weeks ago I urged A.M. to get health care for L.M., to get health insurance for L.M. He went down to social security, I understand, to get her health care, he found out it is going to cost money. Next thing I know, I was no longer proposed as co-guardian and I received a number of angry phone calls from relatives in Florida asking me to step aside. I honestly believe that A.M. is in the middle of an enormous pressure cooker on the one hand the desire to spend L.M.'s money for her care, and on the other hand refusing to spend her money for her care. He even said to me, when I said to him, "A.M., you have got to get her health insurance." His response was, "I need to protect her money."
Q: Mr. V., are you owed any money for legal services?
A: No.
Q: You have been paid?
A: Yes.
Q: Do you know how much you have been paid.
A: For what?
Q: How much in legal services have you been paid?
A: For what?
Q: By A.M., for legal services?
A: I have been paid for legal work done fifteen years ago.
Q: Recently you have been paid?
A: Yes.
Q: So you recently submitted to A.M. a bill from fifteen years ago?
A: No. The bill was submitted fifteen years ago and paid in part.
Mr. Kaufman: Legal payment — regarding his management of the trust, is that correct?
A: Yes.
Q: And Mr. V., are you aware of how much money Mr. M. spends monthly on the AIP (person)?
A: No, I am not.
Q: Have you ever spoken — you mentioned that you received phone calls from Mr. M.'s children; was that recently?
A: Continuously. Primarily from his ex-wife and his daughter and I have returned the calls.
Q: Is his daughter one of the beneficiaries for the trust?
A: Yes.
Q: Is it your opinion that they see this money as their inheritance?
A: Absolutely.
Q: Did one of them say to you that they can throw L.M. out the window if L.M. interfered with their inheritance?
A: In a manner of speaking.
The person was unable to attend the hearing and would not have been able to participate in a meaningful way. Her appearance has been waived by the court.
The court evaluator, Linda T. Chin, reported her findings and recommendations to the Court. She recommended that the court grant a limited temporary guardian and that said guardian should not be either the petitioner or John V. The person opposes the appointment of a guardian, especially her brother.
CONCLUSIONS OF LAW
The petitioner, A.M., is not eligible to be appointed guardian of the person of L.M. In order to be appointed guardian under Article 81 of the Mental Hygiene Law one must survive the eligibility requirements outlined in subdivision 81.19 of the article. "Any individual over eighteen years of age who is found by the court to be suitable to exercise the powers necessary to assist the incapacitated person may be appointed as guardian, including but not limited to a spouse, adult child, parent, or sibling." MHL § 81.19(a)(1). In determining suitability of a potential guardian the court is required to consider the following factors: 1) any appointment or delegation made by the person alleged to be incapacitated in accordance with the provisions of 5-1501,5-1601 or 5-1602 of the General Obligations Law and sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law; 2) the social relationship between the incapacitated person and the person, if any, proposed as guardian, and the social relationship between the incapacitated person and other persons concerned with the welfare of the incapacitated person; 3) the care and services being provided to the incapacitated person at the time of the proceeding; 4) the powers which the guardian will exercise; 5) the educational, professional and business experience relevant to the nature of the services sought to be provided; 6) the nature of the financial resources involved; 7) the unique requirements of the incapacitated person; and 8) any conflicts of interest between the person proposed as guardian and the incapacitated person. MHL § 81.19(d). A conflict of interest arises when the interests of the proposed guardian are adverse to that of the AIP. See, In re Rothman, 263 NY 31 (1933). Most cases that prohibit the appointment of a proposed guardian as a result of a conflict of interest hinge on the potential financial gain to the person proposed as guardian at the expense of the AIP. See, e.g., In Re Chase, 264 AD2d 330, 332 (1st Dept. 1999); Mars v. Beyen , 13 AD3d 91 (1st Dept. 2004). Family members who are contingent remaindermen of supplemental needs trusts for an AIP are not per se excluded from serving as guardian but only because the assumption is there do protections exist to eliminate such a conflict. See e.g., In Re Pace, 182 Misc 2d 618, 621, 699 N.Y.S.2d 257, 259 (1999).
Here, A.M., the petitioner and brother of the person moves to be appointed guardian of her person. The court has an obligation to prohibit this appointment because the interests of Mr. M. are adverse to those of his sister, the person. MHL § 81.19(d)(8), Rothman, 263 NY 31 at 34. Mr. M. and his children stand to gain financially at the expense of L.M. should he be appointed her guardian. The fact that Mr. M. seeks only to be appointed guardian of the person does not eliminate this conflict. For example, if appointed guardian of her person, Mr. M. will have power to relocate the person and to make medical decisions of her behalf. Mr. M. testified that he plans to place his sister in a facility, something the court evaluator revealed is medically unnecessary and adverse to the desires of the person, and once the person is relocated, he intends to sell their house. Selling the home creates financial gain for Mr. M. as the house is owned by both him and the person's trusts.
In light of the fact that removal from the home is not necessary for the safety of the person, Mr. M.'s motivation for relocating his sister certainly may be for personal financial gain and not protection of the person. Another motivation that cannot be ignored is that Mr. M. may no longer desire to directly care for his sister as he is currently doing. Placement in a facility and sale of the home will allow him to return to Florida where he lives. This also constitutes a conflict of interest in that Mr. M. may choose his own well-being over that of his potential ward.
The other conflict of interest facing the proposed guardian is protecting his children's financial interest as remaindermen of the person's trusts versus personally providing for the person. John V., a lifelong friend and the original co-petitioner on this application, testified as to the "tremendous pressure" facing the petitioner when it comes to protecting funds for future generations versus providing financially for the person. He revealed to the court that Mr. M.'s children see L.M.'s trusts as their inheritance and feel so much entitled to it that they recently resorted to threatening Mr. V. should he interfere. This conflict can adversely affect the person and apparently already has.
As guardian of the person, Mr. M. will be charged with providing medical care for his sister. However, testimony showed that he recently refused to purchase health insurance for the person because it was too costly and it was his obligation to "protect" L.M.'s money. Actions like this are some evidence of who the petitioner will choose when faced with a decision between personal care for his sister, which may cost money, and preserving future assets for his children.
Mr. M. is not prohibited outright from appointment as guardian merely because his children are remaindermen. However, actual existence of a conflict of interest caused by the fact that his children are the remaindermen does prohibit him from such appointment. See e.g., In Re Pace, 182 Misc 2d at 621, 699 N.Y.S.2d at 259 (1999).
Because a genuine conflict of interest exists in that A.M., the proposed guardian, can potentially gain financially at the expense of the AIP, he cannot be appointed guardian, personal or otherwise. MHL 81.19(d)(8), see, e.g., In Re Chase, 264 AD2d at 332, see, e.g., Mars v. Beyen, 13 AD3d at 92.
As a result of the foregoing, the petitioner's application for appointment of a personal needs guardian is granted. The guardian of the person will be appointed for the purpose of arranging ongoing home health care, medical, dental, and psychiatric care and related therapies and bill payments to safely secure L.M. in her home.
WHEREFORE:
1. Upon the testimony adduced at the hearing, the documents submitted by the petitioner, and the court evaluator's recommendation, Dominick Calderoni, Esq., is hereby appointed the guardian of the person of L.M. Motion to amend the petition to strike the request for appointment of a property management guardian is granted.
2. The guardian shall afford the person the greatest amount of independence and self-determination with respect to her personal needs in light of the person's functional level, understanding and appreciation of her functional limitations.
3. The guardian of the person is granted those powers listed under Mental Hygiene Law § 81.22 which are necessary and sufficient to provide for the personal needs of the person. Those 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 guardian 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; it is suggested that the person receive psychological care and inquiry should be made as to whether she should be admitted to the Rusk Rehabilitation Institute for therapy and treatment of her conditions;
g) determine whether the person should travel;
h) defend or maintain any civil judicial proceeding.
4. These powers constitute the least restrictive form of intervention consistent with the person's functional limitations.
5. The guardian shall receive as compensation for performing his duties that compensation as is provided under § 81.28 of the Mental Hygiene Law and as approved by the Court.
6. The guardian 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 guardian.
7. The court evaluator may make application to this Court for her fee to be paid out of the person's assets.
8. Petitioner is directed to submit an order and judgment on notice, along with a copy of this decision, in accordance with Mental Hygiene Law § 81.16(c) and the guardian is directed to file his designation in accordance with Mental Hygiene Law § 81.26.