Opinion
No. 100250/2012.
07-29-2015
In the Matter of the Application of Rosemary CAMOIA and Thomas Camoia, Petitioners, For the Appointment of a Guardian of the Person and Property of Rose Giaimo, An Alleged Incapacitated Person.
Irene Vitti, Esq., for petitioner. Morton M. Avigdor, Esq., for respondent.
Irene Vitti, Esq., for petitioner.
Morton M. Avigdor, Esq., for respondent.
KATHY J. KING, J.
Petitioners, Rosemary Camoia ("Rosemary") and her husband, Thomas Camoia, ("Thomas") commenced this guardianship proceeding, pursuant to Article 81 of the Mental Hygiene Law (MHL) by Order to Show Cause dated November 20, 2012, seeking the appointment of a personal needs and property management guardian for 96 year old Rose Giaimo, ("Rose"), an Alleged Incapacitated Person ("AIP"). Petitioners seek to be appointed co-guardians of the person and property for the AIP. Rosemary Camoia is the daughter of the AIP. Petitioners appear by their attorney, Irene Vitti, Esq.
Rosemary's twin brother, Vincent Giaimo, ("Vincent"), cross-moves for identical relief on behalf of Rose by Order to Show Cause dated December 3, 2012, except that he nominates himself to be the guardian, instead of petitioners. Cross-petitioner appears by Lee Nigen, Esq., counsel of record, and Morton M. Avigdor, Esq., co-counsel.
The Court's review of this matter consisted of one home hearing and nine in-court proceedings over a five month period, after which the Court reserved decision on the petition and cross-petition for appointment of a guardian for Rose. Thereafter, on September 9, 2014, the court issued an interim decision and order, appointing Randy S. Perskin, Esq. as guardian for the personal needs and property management for Rose Giaimo. The Court now issues this memorandum decision.
Both petitioners and cross-petitioner also commenced a companion case (Index No. 100249/12) for the appointment of a guardian pursuant to Article 81 for Dominick Giaimo ("Dominick"), the AIP's husband and the father of Rosemary and Vincent. At the conclusion of the hearing, Vincent's cross-petition to be appointed guardian of Dominick was denied. The petition of Rosemary and Thomas Camoia was granted upon Dominick's consent, wherein the Camoias were appointed his co-guardians. Dominick passed away on January 1, 2015.
Background and Procedural History
The petition and cross-petition appear to be precipitated by events arising from an investigation by Adult Protective Services ("APS"). Petitioners contacted APS after increasing concerns about the well-being of Rose due to her declining physical and mental health, and her inability to effectively provide for her daily needs. At the time of the investigation, Rose resided with Dominick in the home they jointly owned ("the family home"). Cross-petitioner also resided in the family home. At the conclusion of the APS investigation, Rose, together with her husband, left the family home and were released into the care and custody of the Camoias. Petitioners contend that Rose is frail and infirm, and Vincent leaves her to fend for herself until he returns home late in the evening after work. Petitioners also allege that Vincent's penchant for hoarding papers, books and other personal possessions creates an unsafe home environment by restricting Rose's mobility and puts her at risk for falling. Petitioners contend that by working together and utilizing their complementary skills in assisting individuals with special needs, they can provide care for Rose. They contend that their application for co-guardianship ensures continuity of care in the event one of them becomes unable to serve in the future.
In opposition, the cross-petitioner, asserts that he was leaving for work at the time of the APS investigation and did not have adequate time to prepare. He denies that Dominick and Rose were removed from the family home by APS. Since the investigation, Vincent contends that he has made arrangements for supervision of Rose and that he has substantially renovated and remodeled the residence to facilitate Rose's return home. Vincent produced a health care proxy dated March 21, 2010, and argues, that his authority under the proxy has been thwarted by the petitioners who have, among other things, given authorization for Rose to be treated with Seroquel, an anti-psychotic drug. Additionally, cross-petitioner asserts that the Camoias unduly influenced Rose to change healthcare plans, and diverted funds from Rose's individually held bank accounts.
Vincent also contends that if petitioners' request for relief is granted, they will seek to isolate him from Rose since his relationship with petitioners is estranged. Finally, Vincent contends that he is better suited than petitioners to be guardian because he has been taking care of all of Rose's general day to day care and personal finances.
The Court appointed Roberto Lopez, Esq., Court Evaluator upon the signing of the order to show cause of petitioners and cross-petitioner. At the commencement of this proceeding, Rose was a patient at St. Joachaim Nursing Home ("St.Joachaim"). Upon discharge from St. Joachaim, it was the intent of petitioners to permanently place Rose and Dominick into Sunrise at Mill Basin Assisted Living Facility ("Sunrise"), however, Sunrise was undergoing renovations due to Hurricane Sandy. As a result, following Rose's rehabilitation, she was discharged to petitioners' home where she joined Dominick. Cross-petitioner disagreed with Rose's placement into Sunrise. Accordingly, on January 11, 2013, the Court appointed Roberto Lopez, Esq., as Temporary Guardian for Rose, on consent of the parties to, inter alia, assist in discharge planning.
On February 15, 2013, over cross-petitioner's objection, the Court issued a decision and order granting the application of the temporary guardian to move Rose from petitioners' home and relocate her to Sunrise during the pendency of the proceeding and final determination on the appointment of a permanent guardian. The Court reasoned that Sunrise offered the necessary personal and therapeutic attention for the high level of care, necessitated by Rose's physical and mental condition. The Court considered, most importantly, that Rose would be afforded the companionship and society of her husband of 65 years, who would be also relocated to Sunrise. The cross-petitioner did not object to Dominick's relocation to Sunrise.
By Order to Show Cause dated February 1, 2013, Roberto Lopez, Esq., as Temporary Guardian of Rose Giaimo moved for an order expanding his powers as Temporary Guardian to relocate, return, and place Rose into Sunrise. Affirmations of support for the requested relief were submitted by the Temporary Guardian and Fern Finkel, Esq ., Dominick's court appointed counsel. Cross–Petitioner submitted opposition to the motion.
The record highlights a proceeding that was both protracted and contentious in nature. Cross-petitioner moved to appeal the Court's order declining to appoint counsel for Rose Giaimo. (J. King, Order dated February 5, 2015). The Appellate Division, Second Department dismissed cross-petitioner's motion for leave to appeal. By order dated July 25, 2013, the Appellate Division, Second Department also denied cross-petitioner's request for a stay of the proceeding pending an appeal of the Court's February 15, 2013 order expanding the powers of the temporary guardian. Further, by the conclusion of the proceedings, Morton Agvidor, Esq., had replaced, Lee Nigen, Esq., as counsel of record for the cross-petitioner.
Based on the allegations raised by the parties in the petition and cross-petition, various applications were made by the respective parties which resulted in the issuance of numerous interim orders to ensure that Rose's rights were protected during the pendency of the proceeding and to allow the Court appointed fiduciaries to fully explore the issues raised by the petition and cross-petition. The orders directed that:
All of the assets, bank accounts and other property belonging to Dominick Giaimo and Rose Giaimo solely, jointly, or with any other person, be frozen and prohibited any transfer, withdrawal or negotiation until further order of the court, except one HSBC account entitled Dominick or Rose Giaimo to be used only for the sole and express purpose of providing for the needs of Dominick and Rose Giaimo (Orders, dated January 11, 2013 and February 6, 2013);
The Last Will and Testament of Dominick Giaimo and Rose Giaimo be deposited with the Clerk of the Surrogates Court in Kings County by February 8, 2013 (Order, dated February 5, 2013);
Roberto Lopez, Esq., as Court Evaluator, further investigate and review all financial statements, information, papers, and documents of Rose Giaimo on her behalf, and further investigate the source, contribution, ownership and transactions of all assets, accounts and other property belonging to or naming in title Rose Giaimo, or Dominick Giaimo, solely, jointly, or with any other person, legally or beneficially, including but not limited to identified accounts and the accounts held by or for the benefit of Dominick Giaimo and/or Rose Giaimo (Order, dated March 5, 2013);
Roberto Lopez, Esq., Court Evaluator and Temporary Guardian, have access to bank account records in the name of Vincent and Rose Giaimo (Order, dated March 12, 2013);
Robert Lopez, Esq., as Temporary Guardian of the Property and Person of Rose Giaimo, have the authorization to sign and file any and all tax returns and related documents on behalf of Rose Giaimo, to communicate with the IRS or any other governmental entity concerning local, state and/or federal taxes, and to obtain financial and/or tax documents and to communicate with other persons or entities with respect to taxes arising, concerning, or related to Rose Giaimo (Order, dated March 12, 2013); and
Rose Giaimo's medical records be sealed (Order, dated May 29, 2013).
The Court must now address three issues in this guardianship proceeding: (1) whether Rose Giaimo is incapacitated; (2) whether a guardian should be appointed on behalf of Rose Giaimo; and if so, (3) who should be appointed to serve as guardian.
Petitioners' Direct Case
Testimony of Petitioners
The petitioners both testified in support of the petition. Thomas and Rosemary testified that Rose is frail and in declining health. According to petitioners, Rose's health experienced a downward spiral once she had one of her kidneys removed due to cancer about five years ago. They also testified that this time period also coincided with Vincent's increased penchant for hoarding and that over time, cross-petitioner created a living environment which put Rose at risk for harm. The first floor of the family home was filled with papers, bottles of vitamins, and boxes; the upstairs bedrooms were filled with additional boxes and clothes; and the basement, as well as the driveway and backyard had multiple barrels of books.
The Camoias testified that due to the clutter, Rose, in her frail condition, was particularly susceptible to falling. In 2011, Rose was hospitalized twice at Beth Israel, due to falling in the home. According to the petitioners, Rose's first admission was due to a hip fracture resulting from tripping over Vincent's bags. As a result, Rose had hip surgery at Beth Israel, and upon discharge from the hospital she was admitted to Shorefront Rehabilitation ("Shorefront") for physical therapy.
Petitioners also noted that during this time Rose's mental condition was deteriorating. Shorefront contacted them one night to advise that Rose had a screaming and yelling episode. After consulting with Rosemary, Rose's physician prescribed Seroquel, an anti-psychotic, to calm her down.
Petitioners' also testified about the effect Vincent's decision-making had on Rose when she returned home from Shorefront. Vincent stopped Rose from taking Seroquel due to what he described as a "mortality risk." According to Rosemary, without Seroquel, Rose became agitated, confused, and violent, prompting Dominick to call Thomas and Rosemary, a few times a week for assistance to calm Rose down.
When Rose returned to Vincent's care upon discharge, she had no home care assistance and had to traverse the stairs by herself in order to get to her bedroom and the bathroom on the second floor. Three days after she was discharged from Shorefront, Rose fell, again, this time falling on the stairs. Despite petitioners repeated requests, Vincent, citing money issues, refused to install a bathroom on the first floor where Rose spent the majority of her time. Additionally, Vincent refused to place a hospital bed in Rose's room, which had been ordered as part of Rose's discharge plan.
The electric hospital bed remained on the first floor of the house, and was not moved into Rose's bedroom. About three to four weeks after delivery, the bed company contacted Thomas for a co-payment, however, Thomas indicated that Vincent disagreed with the bed being moved upstairs and would not make the co-payment. Thomas, in turn, called the company and had them pick up the bed. Thomas described Rose's bed on the second floor, as "broken" with the "springs sticking out."
The Camoias' testified that around November 2011, Rose was, again, hospitalized at Beth Israel, after Vincent called to tell them that Rose had fallen at home. The Camoias called an ambulance because Rose was on the floor when they arrived, and Vincent had not called for assistance. After Rose's second discharge from Beth Israel, Rose stayed with the Camoias. Rosemary advised Vincent that the AIP was not returning to the family home until a bathroom was installed on the first floor. A bathroom was finally installed in 2011, and Rose returned home. Around this time, Vincent also installed a chair lift which the Camoias testified was essentially useless because neither Rose nor her husband were taught how to work the chair lift.
Thomas testified that generally Rose sits in a chair for most of the day, dressed in a hospital gown without undergarments, except for her adult diaper. He stated that, at times, Rose had an odor. While he and Rosemary provided food for Rose and her husband, they essentially ate one meal a day, if at all. Prior to leaving for work, Vincent would put a plate of food in the oven for both Rose and Dominick to eat. By the end of the day, the food was not edible.
The Camoias' testified that they called APS in October 2012 due to a concern about Rose's welfare. During a weekly home visit, they observed that Rose had a bruise under her right eye and that Rose's broken glasses were on the floor. When asked for an explanation about Rose's condition, Vincent was unresponsive. The Camoias' indicated that this was the second call to APS, the first call having been made in March 2011, when they called APS due to cluttered living conditions and Rose's repeated falls. The Camoias' testified that APS closed the 2011 case based on Vincent's representations that he would clean up, get help for Rose and her husband, and eventually retire. However, Vincent failed to live up to any of these promises.
The Camoias' stated that on October 4, 2012, APS Caseworker, Diana Blue, conducted a thorough investigation of the Giaimo family home which included an inspection of the basement, first, and second floor. Ms. Blue, called APS Nurse Patricia Butka who went to the Giaimo home to examine Rose and Dominick. At the conclusion of the investigation by APS, petitioners brought both Rose and Dominick to their home. Rosemary indicated that Rose was in a highly agitated state when she was released to them, and that they called Dr. Neuhauser, Rose's treating M.D. at Beth Israel, who again prescribed Seroquel. Rosemary acknowledged that while Seroquel has some side effects, Rose's dementia diagnosis was confirmed by five physicians. Therefore, she was comfortable with her mother receiving a mild dose of Seroquel since Rose responded very well to the medication.
Thereafter, based on Dr. Neuhauser's recommendation, on October 7, 2012, Rose was admitted to Beth Israel due to extreme agitation. On October 12, 2012, Rose was discharged from Beth Israel and transferred to Sunrise. Rosemary recounted that Dominick visited Sunrise over a period of five years, was impressed with the facility and was desirous of living there with Rose. Rosemary testified that she was impressed that Sunrise had a dedicated unit for dementia patients and offered varied activities that both Rose and her husband could enjoy. Rosemary further testified that she carried out her father's wishes by assisting with Rose's transfer to Sunrise.
Rose was again admitted to Beth Israel on October 31, 2012, and diagnosed with an altered mental state. The Camoias' testified that Rose was unable to return to Sunrise due to damage by Hurricane Sandy, and upon discharge from Beth Israel, Rose was temporarily transferred to St. Joachaim, and then to petitioners home.
On cross-examination, Thomas acknowledged that he did not seek help sooner regarding the cluttered condition in the Giaimo family home that began around 2000 nor did he seek assistance regarding Rose's decline in health since it was "Dominick's house" and it was not "his place" to bring anyone in the house. Also, he explained that Vincent did not want anyone in the house. Thomas indicated that he did not pay for the installation of the first floor bathroom, however, he testified that he paid to furnish the Giaimos' home, and regularly bought food and other supplies. Thomas acknowledged that Vincent filled Rose's prescriptions. Thomas and Rosemary also conceded that Rose had not been removed from her home by APS, but had left voluntarily.
Contrary to the cross-petitioner's assertions, Thomas denied that he helped Rose disenroll from Health Insurance Plan ("HIP") as a primary insurance carrier, and re-enroll with Medicare as a primary insurance carrier and United Healthcare as a secondary insurance carrier. He testified that Dominick decided to change health care providers due to the difficulty in procuring medication from HIP at the time Rose was released to the Camoias' on October 4, 2012. Additionally, Thomas explained to Dominick that he would get better medical care with United Healthcare because unlike providers accepting HIP, United Healthcare doctors make house visits. Thomas further testified that Dominick executed a change of enrollment form and then directed Rose to sign the form. Thomas acknowledged that Rose may not have known what she was signing.
Thomas also acknowledged taking Dominick to the bank to assist with certain financial transactions, however, he testified that Rose's bankbooks were in Vincent's possession and denied personally engaging in transactions involving her accounts or any accounts jointly held with her husband. Rosemary testified that all of Rose's accounts, except, perhaps one, are controlled by Vincent.
Thomas and Rosemary both testified as to their ability and qualifications to serve as a guardian for Rose. As retired special education teachers, they indicated that they have extensive training in the care of special needs individuals. Thomas, at one time, was the care provider for his mother and son, both of whom passed away. Both petitioners testified that they completed the Article 81 guardianship training course on-line and received their respective certificates. Additionally, Thomas, as a former business owner, testified that he has 20 years' experience in financial management.
In support of their prima facie case, petitioners also produced representatives from APS, together with individuals charged with the care of Rose at St. Joachim, Beth Israel and Sunrise, respectively.
Testimony of Adult Protective Services
APS Caseworker Diana Blue stated that she went to the Giaimo family home on October 2, 2012, to conduct an investigation based on a complaint that petitioners called into the agency. She indicated that Vincent let her into the house upon her arrival. Rose was sitting in a chair and described her to be confused and "out of it." She observed that Rose had an old bruise underneath her right eye. She testified that the home was in squalor and filled with books and papers, which left no room to move around. According to Caseworker Blue, she explained to Vincent that the home environment was not conducive to elderly individuals living in the home, and that Rose, along with her husband, required home care. In turn, Vincent responded by yelling and screaming at Ms. Blue and, at the same time, stated that he was not going to pay for home care. Ms. Blue recommended to her office that a medical professional be brought in to consult on the case, and returned to the Giaimo home on October 4, 2012, with Ms. Butka. Ms. Blue testified that Dominick wanted to leave the home to be with the petitioners, both of whom were present, during this second visit. Ms. Blue further testified that Rose following her husband's lead, walked out of her home and was put in the custody of petitioners. Ms. Blue indicated that she then visited petitioners' home and found it to be clean and safe and closed the case file based on her finding.
Patricia Butka, R.N., testified that she is a nurse clinician for APS and that she performed an assessment of Rose Giaimo on October 4, 2012, accompanied by Caseworker Diana Blue, who had requested the assessment. Ms. Butka testified that Rose was confused and while Rose knew the names of her daughter and son, she did not know the time, date, or her address. Ms. Butka found that Rose was in a highly agitated state. Ms. Butka noted that Rose was not taking any medications to treat her mental condition, and indicated that if she had been taking medication she would have been in a more relaxed state. Physically, she indicated that Rose had a bruise underneath her right eye that appeared to be resolving, and stated that the injury was consistent with a fall. Ms. Butka was concerned that the AIP could wander based on her confused state and recommended to Vincent that 24/7 home care be obtained. Additionally, she stated that there were several risk factors in the Giaimo home which created risk/fall issues. She cited taping on the floor, clutter, and Rose's inability to operate the chairlift and/or navigate the stairs to the second floor. She observed that the clutter was so packed in some areas of the house that narrow walkways were carved out so that Rose could maneuver. She also stated that, Rose's box spring and mattress were not the same size. Consistent with Caseworker Blue's testimony, Ms. Butka explained that Rose followed Dominick when he walked out of their family home in order to live with the Camoias. Ms. Butka testified that she and Ms. Blue followed up on the case at the Camoia home, which she described as "meticulously beautiful." Rose, however, was still in an agitated state, and Ms. Butka consulted a physician who prescribed Haldol for Rose, which calmed her agitation.
Testimony of Mark Roberts
Mark Roberts testified that he is responsible for discharge planning at Beth Israel, and that he was assigned to Rose's case in October 2011 and, again, in October 2012. Upon admission, Rose was given intravenous fluid for dehydration and prescribed Seroquel for her altered mental state. She was stabilized in one day. Since Rose's records indicated that there was APS involvement and an unsafe condition in the home, Mr. Roberts' role was to ensure that Rose was discharged to the safest environment. Thus, he coordinated a discharge plan with Rose's social worker, attending physician, and the hospital's chief medical officer. As a result, it was determined that Rose's physical condition necessitated further nursing home rehabilitation and home care. According to Mr. Roberts, the planning process was prolonged due to Medicare regulations, combined with a difference in opinion between the hospital and Vincent who expressed his desire to have Rose return home with the assistance of Nannies for Grannies, a home health care agency. By contrast, Beth Israel's discharge plan consisted of transferring Rose to a skilled nursing facility because she had a full catheter and was still receiving total care, which she could not receive at home. While Mr. Roberts acknowledged that Vincent is Rose's health care proxy, he indicated that Vincent's wishes were not adhered to because Rose would be at risk if she were discharged home.
Mr. Roberts further testified that Vincent did not have an appreciation of the level of care required for his mother because he, together with his attorney, persisted in their efforts to have Rose return home against medical advice ("AMA"), and threatened to sign her out "AMA." He recalled that he spoke with Vincent and his attorney at least twice, and that Vincent's attorney kept emailing the legal department to have Rose discharged to the family home. While Dominick expressed a desire for his wife to return home, he accepted Mr. Robert's recommendation to place Rose in St. Joachim for sub-acute rehabilitation, as an alternative to discharge to the home.
Testimony of Karen Johnson
Karen Johnson, Rose's social worker at St. Joachim, testified that she has 12 years of experience working with psychiatric patients. She indicated that upon admission to St. Joachim on January 19, 2013, Rose was very agitated, screaming and hard to handle. Ms. Johnson also indicated that Rose's health care proxy designated Vincent as primary agent, and Rosemary as a stand-by agent. On cross examination, she indicated that pursuant to St. Joachim's policy, Rosemary was consulted as a designated family representative since she accompanied Rose to the hospital at admission.
Upon examination at the hospital, it was determined that Rose was confused and symptomatic with dementia. Ms. Johnson indicated after Rose was prescribed Seroquel, she adapted well to her surroundings, activities, rehabilitation, and family. She recounted Vincent's request to discontinue Seroquel. When she refused to comply with his request, Vincent directed her to call his attorney who indicated that she would "suffer the consequences" if Vincent was not allowed to make this decision. Ms. Johnson testified that Rose adjusted well to Seroquel, and opined that if Rose stopped taking Seroquel she would likely revert back to her pre-admission condition.
Testimony of Angie Giorlando
Angie Giorlando, Director of Community Relations at Sunrise, testified that her role is to provide placement for residents at Sunrise. In Rose's case, Ms. Giolrando indicated that Rose was placed in the "memory care" unit at Sunrise based on an assessment by Sunrise's medical staff, and provided with 24 hour care. Additionally, Ms. Giorlando testified that Sunrise has the capability of providing Rose with a life care plan which included the high level of care that Rose requires.
Cross–Petitioner's Direct Case
Testimony of Cross–Petitioner
Vincent Giaimo testified that he has resided with his parents, Rose and Dominick Giaimo, at 1157 East 29th Street, Brooklyn, N.Y. for his entire life and that he provided care for both of them through October 4, 2012, when they left to live with petitioners. He stated that APS did not remove Rose from the family home. Vincent also testified that he maintained the family home and managed the finances of his parents. Vincent stated that he was designated as Rose's health care agent in 2010 during her rehabilitation at Shorefront. Vincent has college and graduate degrees and has served in the United States Army Reserves, Dental Corps. Vincent testified that his training in dental and medical procedures enabled him to provide both his parents with assistance.
He testified that now that Rose is at Sunrise he visits her almost every day. By contrast, he testified that when Rose was at petitioners' house he had been barred from seeing her on at least two occasions.
Vincent described Rose as having dementia of a mild type, but acknowledged that Dr. Newhauser of Beth Israel, as well as the psychiatrist at St. Joachim had prescribed Seroquel for Rose, based on a diagnosis of dementia and agitation, and dementia and psychosis, respectively. Vincent stated that Rose was presently treated with Seroquel at Sunrise, however, he was unaware of her diagnosis. He did not agree with the use of Seroquel to treat Rose's dementia, since his consultations with two psychiatrists, together with his independent research of Seroquel showed that it had negative side effects, which included lethargy, drowsiness, and unresponsiveness. Vincent testified that Rose was vibrant, witty, and responsive when she was not taking Seroquel and that he wanted to obtain a second opinion to evaluate the necessity of Rose taking Seroquel. Vincent further testified that even though Sunrise has a copy of his healthcare proxy on file, the facility did not consult him regarding the use of Seroquel. He acknowledged that he stopped Rose's disenrollment from HIP from being processed, once it was brought to his attention.
Vincent further testified that he did not agree with Rose's placement in the dementia ward at Sunrise. If appointed guardian, he indicated that he would keep her at home with all the necessary therapeutic and medical services. Additionally, he would refer Rose to a geriatric psychiatrist to evaluate her for dementia with a view towards getting alternative medication for her condition.
On cross-examination, Vincent acknowledged that he works full time, and leaves for work early in the afternoon and returns home by 12 midnight to 1 a.m. He stated that he would leave Rose's meals in the oven, and Dominick would assist her. He testified that Rose did not need assistance with bathing, personal hygiene, or toileting. Out of a concern for Rose's safety, he acknowledged installing handicapped accessible hand bars on the first three steps of the stairs, by the toilet, and in the shower.
He admitted that the condition of the house at one time did not constitute a safe environment for Rose, and that his mother had fallen on numerous occasions. To remedy the dangerous conditions, he retained the services of a geriatric resource consultant to ensure that the house was safe and permitted Rose to be mobile. Additionally, he indicated that he made an effort to clear the clutter in the household and eliminate any obvious danger.
Vincent testified that in the months leading up to the APS investigation, Rose was able to get up and down the stairs to her bedroom on the second floor without assistance, and that Rose did not use the chair lift because she did not need it. Vincent further testified that Rose did not suffer from dementia, and that she is presently aware that she is not in the family home and wants to return home. While acknowledging that Rose appeared to be eating better at Sunrise, Vincent described her as depressed. He claimed that the therapeutic treatments and programs designed for patients like Rose were ineffective. Vincent did not think that Rose was improving at Sunrise. Vincent maintained that if appointed guardian, his plan of care contemplated the least restrictive intervention under the law. In this regard, his paramount concern was returning his mother to the community. In the event that his father was not desirous of returning home, Vincent, as guardian, testified that he would be willing to separate husband and wife.
In support of his prima facie case, Vincent produced Dr. Paul Rosenstock, Marianne Boyango, and Alison Schwartz, Director of the Alzheimer's Unit at Sunrise.
Ms. Schwartz's testimony is not probative regarding the issues to be decided by the Court and therefore is not considered in his decision.
Testimony of Dr. Rosenstock
Dr. Paul Rosenstock, a board certified geriatrician testified that he had not examined Rose and that his opinion was based solely on his review of Rose's medical records at Sunrise. He testified that the notes of Rose's treating physician contained contradictions. While the notes contained a diagnosis of dementia, Rose's neurological and psychiatric examination results did not support such a finding. Instead, the notes indicated that Rose is alert and oriented in many instances. However, he conceded that a person can be alert and still suffer from dementia. While he acknowledged that Rose was being treated with Seroquel, he opined that such treatment was inappropriate with a dementia diagnosis, and is more appropriately used with a patient presenting with agitation or depression. Additionally, he stated that since Seroquel is a psychotropic medication, patients are required to be weaned off the medication over time. He also stated that Cipro, an antibiotic prescribed for Rose's urinary tract infection at Sunrise, increased the level of Seroquel in the bloodstream. On cross-examination, however, Dr. Rosenstock stated that he was unaware that Rose had been prescribed Seroquel at Beth Israel, Shorefront and St. Joachim, and also acknowledged that there was no showing in the medical record that Rose had suffered adverse effects from taking Seroquel and Cipro together.
Dr. Rosenstock also opined that Rose's continued stay in an institutional setting would be deleterious and indicated that returning home under the care of a family member or aide would be preferable for an elderly person, like Rose, due to the familiarity and comfort level of being at home.
Testimony of Marianne Boyango
Marianne Boyango, Executive Director at Sunrise Mill Basin, testified that she is responsible for operations at Sunrise, and in 2011 she entered into a resident living agreement signed by Rose. According to Ms. Boyango, upon Rose's admission to Sunrise in 2011, she was unaware that Rose had a health care proxy. She stated that the proxy would have been included in Rose's file, if the document was provided to the facility. Boyango further testified that upon Rose's second admission to Sunrise on February 19, 2013, Ms. Giaimo was provided with a copy of her resident living agreement, which was not signed by her, but rather by her court-appointed temporary guardian, Roberto Lopez, Esq.
Court Evaluator's Report
Roberto Lopez, Esq., the Court Evaluator, conducted an investigation regarding the allegations contained in the petition and cross-petition. He interviewed the AIP, and at their meeting, he attempted to explain to her that she had a right to an attorney, however, she was unable to hold a conversation or respond to questions appropriately. The Court Evaluator found that Rose's behavior during her interview was consistent with her medical records which stated that Rose suffers from dementia, and that she had been treated with a low dosage of Seroquel daily.
He also interviewed the petitioners and cross-petitioner, the AIP's husband, as well as Rose's primary physician, treating psychiatrist, attending nurse, social worker at St. Joachim, and APS Caseworker, Ms. Blue. The findings of the Court Evaluator were incorporated in an initial report dated December 17, 2012, and a supplemental report dated January 10, 2013. Both reports were submitted into evidence. Mr. Lopez also testified at the hearing.
The initial report cited a conflict between Vincent and the Camoias on a number of issues. Prior to Rose's hospitalization, Vincent wanted to continue to provide care without the assistance of home health attendants; petitioners maintained that Rose could not remain home without home health attendants. Vincent did not want Rose to reside at Sunrise; on the other hand, petitioners wanted to carry out Dominick's wishes to reside with his wife at Sunrise. Vincent did not want to utilize Rose's resources to pay for care and renovation of the family home to conform to Rose's changing needs, while petitioners desired to utilize the AIP's resources to provide care and sustenance for Rose. Vincent wanted to discontinue Seroquel treatment, while petitioners wanted to continue Rose's use of Seroquel.
The report indicated that Rose had assets in excess of $1,000,000 .00 which are held in her name individually, and, jointly, with her husband or Vincent. According to the report, petitioners and cross-petitioner raise allegations of undue influence as to each other regarding Rose's assets. However, no conclusive findings regarding these allegations were made, instead, the court evaluator indicated that further investigation is warranted.
The Court Evaluator found that Rose had physical, mental, and cognitive deficits, which warranted the appointment of a guardian of the personal needs and property management for an indefinite period of time. The Court Evaluator also recommended that petitioners' prayer for relief be granted in its entirety, including the power to investigate any misappropriation or mismanagement of the AIP's assets, and the appointment of Rosemary and Thomas Camoia as co-guardians.
The supplemental court evaluator's report was prepared in anticipation of Rose's discharge from St. Joachim. Rose's health care proxy dated March 21, 2010, designating Vincent as agent was annexed to the report. Revocation of any and all existing health care proxies and the appointment of a temporary guardian were recommended in order to coordinate Rose's discharge, placement and continuity of care. This recommendation was prompted by Vincent's attempt to act as Rose's health care agent by ordering the nursing home staff to discontinue Seroquel contrary to doctor's orders.
The court evaluator also indicated that the appointment of a temporary guardian with the consent of all parties would eliminate the need under MHL § 81.10 for the Court to appoint counsel for the AIP since Rose is unable to request counsel, unable to contest the petition, cannot either consent to or oppose the appointment of a guardian, cannot consent or oppose placement at a facility versus her home and cannot consent or oppose any medical treatment needed. Significantly, the report noted that no conflict existed between the Court Evaluator's role and the advocacy needs of the AIP under MHL § 81.10 [c][6].
Discussion
Under New York law, before appointing a guardian, the Court must find the AIP functionally incapacitated, unable to appreciate her functional limitations, and without sufficient advanced directives or other measures in place to safeguard her person and/or property. (MHL § 81.02 ).
The evidence adduced at the hearing establishes that Rose was initially diagnosed with senile dementia in 2007 by her treating physicians, Preferred Health Partners. Subsequently, Rose's medical records from 2010 through 2013, which include admissions to Beth Israel, Shorefront, and Sunrise, establish that she was consistently diagnosed with dementia, and that, her condition had progressively worsened to include dementia with psychosis and/or agitated behavior symptoms. She also suffers from numerous physical illnesses including hypertension, congestive heart failure, enlarged heart, and ulcers of the foot. She is wheelchair bound, requiring 24–hour care and assistance with activities of daily living. As a result, she cannot make healthcare or financial decisions. There is no indication from Rose's medical providers or from the medical records that Rose has any prognosis for recovery. In this regard, the Court Evaluator's report indicates that Rose is a person in need of a guardian for the personal needs and property management for an indefinite period.
Accordingly, the Court concludes that Rose Giaimo is incapacitated within the meaning of Article 81 of the Mental Hygiene Law, is likely to suffer harm because of the inability to provide for her personal needs and property management and cannot adequately understand and appreciate the nature and consequences of her actions due to such inability. (MHL § 81.02[b][1] and [2 ] ). In reaching this determination, the Court gives significant weight to the Court Evaluator's report. (MHL § 81.02[a] ). The Court also considered Rose's functional level and functional limitations in accordance with MHL § 81.02[c] and [d], which the Court had the opportunity to observe firsthand at the home of petitioners. Consistent with the Court Evaluator's findings, the Court found that Rose was unresponsive when addressed and was unable to hold a conversation.
While this Court has made a determination of incapacity, the Court must still consider whether the health care proxy dated March 21, 2010, which appoints Vincent as Rose's health care agent, negates the need for the appointment of a guardian. "In deciding whether the appointment of [a guardian] is necessary, the court [is required] to consider the court evaluator's report (MHL § 81.02[a] ) and the sufficiency and reliability of available resources (MHL § 81.02[a][2] ) which may be available to satisfy the AIP's personal needs and property management without the need for a guardian." Mental Hygiene Law § 81.03[e] defines "available resources" as: "powers of attorney, health care proxies" (See, In re G.S., 17 Misc.3d 303 [Sup.Ct.2007] ). In the instant case, the Court Evaluator's report recommends that a personal needs guardian is warranted, notwithstanding the March 21, 2010 health care proxy.
For the purposes of Public Health Law § 2981, every adult is presumed competent to appoint a health care agent. (Public Health Law § 2981 [1 ][b] ). In light of the presumption of competency, the burden of proving mental incompetence is upon the party asserting it. (See, Smith v. Comas, 173 A.D.2d 535 [2d Dept 1991], citing Feiden v. Feiden, 151 A.D.2d 889 [3d Dept 1989] ; Matter of Obermeier, 150 A.D.2d 863, 864 [3d Dept 1989] ). However, where there is medical evidence of mental illness or a mental defect, the burden shifts to the opposing party to prove by clear and convincing evidence that the person executing the document in question possessed the requisite mental capacity. (See, Hubbard v. Gatz, 130 A.D.2d 622, 623 [2d Dept 1987] ; see also Matter of Shapiro, NYLJ, Apr. 19, 2001, at 25, col 1). Here, Rose's medical records conclusively establish that she was diagnosed with dementia at least three years prior to the time the health care proxy was executed on March 21, 2010, thus, rebutting the presumption of competency. Cross-petitioner fails to demonstrate that Rose was competent at the time she signed the health care proxy. Further, neither of the two witnesses to the health care proxy were produced by cross-petitioner to attest to Rose's competency. Based on these circumstances, the Court finds that Rose lacked the mental capacity to execute the March 21, 2010 health care proxy, and the proxy is, hereby, vacated.
The Court Evaluator recommends revocation of the health care proxy, however, based on the Court's finding, the Court shall not consider the merits of this recommendation.
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In regards to Rose's finances, the record establishes that Rose is unable to manage her financial and/or personal affairs. The allegations contained in the petition and cross-petition resulted in the freezing of Rose's assets and an investigation into alleged undue influence and misappropriation. While the Court Evaluator's reports were inconclusive as to the allegations raised in the petition and cross-petition about Rose's finances, the report recommended further investigation by the prospective guardian.
For these reasons, the Court finds that Rose Giaimo is a person in need of a guardian to protect her personal needs and property interests pursuant to Article 81 of the Mental Hygiene Law.
It is important to note that, contrary to the contentions of cross-petitioner, the appointment of a guardian in the instant case, in all respects, complies with the procedural protections afforded by Article 81 of the Mental Hygiene Law. A Court Evaluator was appointed who prepared a written report and recommendation regarding whether or not a guardian should be appointed (MHL § 81.09[c][5] ); the parties consented, in court, to the appointment of a temporary guardian (who is also an attorney) for Rose during the pendency of the proceeding; and an extensive hearing was conducted on the record. (MHL §§ 81.02[b], 81.11, and 81.15[b] ). While the Court declined to appoint counsel for Rose, the appointment of counsel is not mandatory in every guardianship case. In the instant case, none of the circumstances warranting mandatory appointment of counsel as set forth in MHL § 81.10 were present. Namely, the AIP did not request the appointment of counsel; the AIP did not contest the petition; the AIP resided in a nursing home at the time of the petition; the petition did not allege the need for any major medical or dental treatment, nor request the appointment of a temporary guardian; and no conflict existed between the Court Evaluator's role and the advocacy needs of the AIP. Thus, the Court in its discretion determined that the appointment of counsel for the AIP was not warranted (J. King, Order dated February 5, 2013), and, thus, Rose's due process rights were not violated.
The Court is now presented with the issue of appointing a guardian pursuant to MHL § 81.19[d].
At the outset, the Court notes that both petitioners and cross-petitioner possess the requisite educational, professional and business experience to qualify as a guardian. They also demonstrate a genuine concern for Rose's well-being. To that end, petitioners have utilized their personal financial resources to provide supplemental provisions and necessities for the AIP. They also spend considerable time monitoring the AIP and serve as "stand-by" caregivers, supplementing the care provided by Vincent. While the record does not indicate to what extent, the AIP, if at all, communicated her desires prior to her declining health, it is clear that the petitioners when assisting Rose, factored in the wishes of her late husband, Dominick Giaimo, who identified Sunrise as an assisted living facility that could provide the high level of quality care Rose requires over the long term. In that regard, the record shows that Rose has adapted well to the care and treatment provided in Sunrise's dedicated dementia unit. On the same note, Vincent, has lived with Rose his entire life. He has managed Rose's personal finances, and in fact, is a joint account holder with her on several bank accounts. Vincent has also provided day to day care for Rose to the best of his ability, which includes taking Rose for medical visits and obtaining medication. However, the record is devoid of any evidence to support Vincent's contention that "[he] has always been the preferred sibling" to care for Rose. (Cross–Petition ¶ 24).
While the responsibilities undertaken by petitioners and cross-petitioner on behalf of the AIP are certainly factors to be considered when determining whether an individual is qualified to serve as guardian, these factors, standing alone, are not dispositive on this issue.
In the case at bar, the evidence overwhelmingly establishes that the level of care provided for Rose at the family home was not commensurate with her needs. Although APS did not record an affirmative finding against Vincent as Rose's care provider, the evidence shows that the condition of the family home put Rose at risk for harm, and served as a basis for Rose to be placed in the custody of petitioners. At the time of APS' investigation, the Giaimo family home was unquestionably in a state of squalor and disrepair. Petitioners proffered numerous photographs of the family home which depicted a clutter-filled environment characteristic of "hoarding." Similarly, APS described the home environment as "cluttered" and indicated that there was no room for Rose to move. APS also cited that Rose did not receive proper care in the family home. Vincent does not deny that these conditions existed, instead he emphasizes that since the commencement of this proceeding he has consulted "Nannies for Grannies," for home care services, "Doctors on Call," for physician visits, and "Meals on Wheels," for Rose's nutritional needs. Vincent also proffered photographs to demonstrate that he has performed a substantial re-organization and clean-up of the family home. While such corrective measures are commendable, Vincent did not consider or execute these measures until after the APS investigation. Thus, the Court questions whether these corrective measures were made in good faith and in Rose's best interests, or whether Vincent was motivated by his own self-interest in seeking Rose's return to the family home, especially since his request for relief seeks Rose's return "with or without Dominick." Although Rose's return home with Dominick is a moot issue based on Dominick's unfortunate demise, it should be noted that Vincent, unlike petitioners, did not consider the integral influence that Dominick had on Rose's ability to thrive.
The Court also notes that Vincent resisted the implementation of Rose's treatment plan, particularly her treatment with Seroquel, which resulted in the appointment of a temporary guardian. Vincent's objection to Rose's use of Seroquel is unreasonable and unjustifiable in light of the fact that Dr. Rosenstock never personally consulted with or examined Rose. By contrast, Rose's treating physicians from at least four medical facilities opined that Seroquel had a stabilizing effect on Rose. Finally, Vincent's use of bullying tactics, individually and through his attorney, to compel Rose's medical providers to adhere to his wishes contrary to doctor's orders is patently improper.
The Court finds that Vincent, while well intended, lacks the temperament to be a court appointed guardian. Additionally, Vincent has an inability to objectively assess the AIP's circumstances to execute any of the powers that would be granted to a guardian under Article 81 of the Mental Hygiene Law.
It is well settled that the appointment of a family member as guardian for an incapacitated person is preferable, however it is well within the court's discretion to appoint an outsider upon a determination that available family members are, in some way, not suitable. (MHL § 81.19[a][1], [c], [d] ; see Matter of Ardelia R ., 28 AD3d 485 [2d Dept 2006] ; Matter of Joseph V., 307 A.D.2d 469 [3d Dept 2003] ;;911;911 cf. Matter of Nellie G., 38 AD3d 547 [2d Dept 2007] ). Consistent with this statutory mandate, the case law has established that in a guardianship proceeding, "strangers will not be appointed [guardian] of the person or property of the incompetent, unless it is impossible to find within the family circle, or their nominees, one who is qualified to serve". (See, Matter of Ardelia R., 28 AD3d 485 [2d Dept 2006] ; Matter of Chase, 264 A.D.2d 330, 331 [1d Dept 1999], quoting Matter of Dietz, 247 App. Div. 366, 367 [1d Dept 2006] ).
In the instant case, petitioners ostensibly meet the qualifications to serve as guardian, since the allegations of undue influence asserted by Vincent remain unsubstantiated. However, since Rose requires a guardianship of the person and property for an indefinite duration, it is clear that the on-going conflict between petitioners and cross-petitioner regarding the care and treatment of the AIP weigh against appointing petitioners. (Matter of Ollie D., 30 AD3d 599 [2d Dept 2006] ; see also In re Karen H.M., 45 Misc.3d 858 ; Matter of Judas, 74 A.D.2d 874 [2d Dept 1980] ; Matter of Lyon, 52 A.D.2d 847 [2d Dept 1976] ; Matter of Kustka, 163 Misc.2d 694 [NY Sup. Dec. 23, 1994] ; Matter of Schunk, 136 A.D.2d 904 [1d Dept 1988] ; Matter of Weisman, 112 A.D.2d 871 [1d Dept 1985] ). In the twilight of her golden years, Rose could only benefit from having the society of the Camoias and Vincent, absent the conflict and acrimony that has burdened this familial relationship in recent years, and which could potentially continue should the Court appoint the petitioners.
Since the Court's paramount concern in an Article 81 proceeding is the best interests of the incapacitated person, the Court finds that it would be in Rose's best interests to appoint an independent guardian consistent with the Court's September 9, 2014 interim decision. (See, In re Cox, 47 Misc.3d 1211(A), 2015 N.Y. Slip Op. 50550(U), quoting from Seth Rubenstein P.C. v. Ganea, 41 AD3d 54 [2d Dept 2007] ).
Accordingly, based on the foregoing, it is hereby,
ORDERED, that the healthcare proxy dated, March 21, 2010 is vacated; and it is further
ORDERED, that the petition dated November 20, 2012 and cross-petition dated December 3, 2012 are granted to the extent that the Court finds that Rose Giaimo is an incapacitated person within the meaning of Article 81 of the Mental Hygiene Law, and denied in all other respects; and it is further
ORDERED, that Randy S. Perskin, Esq. of 20 River Terrance, No.22, New York, New York 10282, telephone number (212) 600–4441, is hereby appointed Guardian of the Personal Needs and Property Management of Rose Giaimo consistent with Interim Order dated September 9, 2014 with all powers contained in MHL §§ 81.22 and 81.21 ; and it is further
ORDERED, that temporary restraining orders dated January 11, 2013 and February 6, 2013 freezing all of the assets, bank accounts, and other property belonging to Dominick Giaimo and Rose Giaimo solely, jointly or with any other person and prohibiting the transfer, withdrawal or negotiation of said assets until further order of the Court is vacated forthwith; and it is further
ORDERED, that Roberto Lopez, Esq., as Court Evaluator and Temporary Guardian, Irene Vitti, Esq. as attorney for petitioners, and Morton Agvidor, Esq. as attorney for cross-petitioner submit their respective affirmations of services within 10 days after the date hereof; and it is further
ORDERED, that Randy S. Perskin, Esq. settle Order and Judgment within 15 days after the date hereof.