Opinion
No. 9XXXX/2015.
06-12-2015
In the Matter of the Application of J.E., Petitioner, for the Appointment of a Guardian for N.E., An Alleged Incapacitated Person.
Todd Fishlin, Esq., Fishlin & Fishlin, PLLC, Mt. Kisco, for Petitioner.
Todd Fishlin, Esq., Fishlin & Fishlin, PLLC, Mt. Kisco, for Petitioner.
Opinion
ALEXANDER W. HUNTER JR., J.
A petition has been filed for the appointment of a guardian for the person and property of N.E., an alleged incapacitated person (hereinafter known as “the person”). This 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 necessary interested persons required to be served under Mental Hygiene Law § 81.07 were timely served with the order to show cause and petition. Mental Hygiene Legal Service (MHLS), was appointed to serve as the court evaluator.
The hearing was held on June 4, 2015. The person was present and testified at the hearing. J.E., petitioner and the person's son, G.T., the person's daughter, and Naomi Weinstein, Esq., as 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 79 years of age. The person resides at * * * *, Bronx, New York, with her son, petitioner J.E.
2. Prior to moving in with her son, the person resided in the community at XXXXXX, Bronx, New York, and still pays rent on that apartment. The person went to live with her son, petitioner J.E., five to six years ago. The person has been diagnosed with Alzheimer's dementia, kidney failure, and chronic obstructive pulmonary disease (COPD).
3. The person is a widow and has six children: G.E., who resides in South Carolina; G.T., who resides in Connecticut; A.E., who resides in New York; J.E., who resides in New York; L.E.; and J.E., Jr. L.E. and J.E., Jr. predeceased the person.
4. The person receives social security benefits in the amount of $650.00 per month. The person's estimated assets include a Ponce de Leon Federal Bank account with an unknown balance, a Chase bank account with a balance of $216,727.06, and two TD bank accounts with balances totaling $8,351.86. The person has other bank accounts with balances believed to range anywhere from $300,000 to $500,000.
5. J.E., the person's son and petitioner, testified that the person has been diagnosed with Alzheimer's dementia, COPD, kidney failure, and other medical conditions. Mr. E. stated that the person requires assistance with all of her activities of daily living, including cooking, taking her required daily medications, and bathing. He testified that the person is unable to take care of herself and, therefore the petitioner, petitioner's fiancée, and petitioner's children take care of the person and her finances. The person also receives eight hours of home care services seven days a week through HHH Choices Managed Long Term Care. He further stated that the person's other children infrequently visit the person. Mr. E. testified that when it was brought to his attention that his sister G.T. was funneling money out of the person's bank accounts, he withdrew $5,000 from the person's Ponce de Leon Federal Bank account, in order to hold it for safekeeping to ensure that G.T. would not able to acquire it.
J.E. testified that he is interested in serving as guardian of the person and property because he has been taking care of the person in his own home for the past five to six years and wishes to continue taking care of her. He stated that he has no judgments, liens, bankruptcies, or foreclosures against him, nor has he been convicted of a felony. He is aware of and willing to comply with all of the requirements of serving as the guardian.
6. G.T., the person's daughter, testified that on November 28, 2014, she and the person agreed to open a bank account to deposit a distribution inheritance check in the amount of $93,575.79 for alleged safekeeping. She then stated that on December 2, 2014, she withdrew $100.00 from the joint account to reimburse herself after taking her mother shopping. She further stated that she transferred $90,000 from the joint account into an undisclosed account in her name only and used $10,000 of the transferred money to complete home repairs in order to make her home functional for the person with the expectation that the person is going to move in with her in the near future.
7. The person testified briefly at the hearing, stating that she wants help with her finances. The person testified that she is unaware of the purpose of a guardianship. Nevertheless, the person is in favor of petitioner serving as her guardian and expressed a desire to continue residing with him.
8. The court evaluator testified that she met with the person in the person's residence at XXXXXX, Bronx, New York on March 13, 2015. At that meeting, the person appeared to be nervous and requested that her home care attendant stay with her during the interview. The court evaluator testified that the person is agreeable to J.E. being appointed to serve as her guardian. Currently, the person's bank accounts have been frozen in order to determine the amount of the person's assets and to prevent possible fraud.
Due to her functional limitations and resultant inability to manage her personal and financial affairs, the court evaluator stated that the person will likely suffer harm without the assistance of a guardian. The court evaluator believes that J.E. is a suitable guardian of the person only and that an independent guardian of the property should be appointed. The independent guardian of the property should be tasked with obtaining clear documentation as to the amount the person received as an inheritance from the estate of her uncle, M.G.G., Jr., in order to ensure that all of the person's money is properly accounted for. In addition, the court evaluator proposed that the court order J.E. to turn over the $5,000 that was withdrawn from the person's Ponce De Leon Federal Bank account and that those funds be placed into a guardianship account
CONCLUSIONS OF LAW
1. After examination of the documents submitted, the testimony adduced at the hearing, and the court evaluator's recommendation, the application for the appointment of a guardian of the person and property is granted. Accordingly, J.E. is hereby appointed the guardian of the person for an indefinite duration. Rudyard F. Whyte, Esq., with offices located at 233 Broadway, 5th Floor New York, New York 10279, telephone number (718) 553–9145, is hereby appointed the guardian of the property for an indefinite duration.
Additionally, Rudyard F. Whyte, Esq., is appointed the temporary guardian of the property with the limited power to immediately access and make withdrawals from the person's Ponce de Leon Federal Bank account(s), funds in said account to be used for the person's continued care and maintenance pending the qualification and commission of the co-guardians.
Furthermore, J.E. is directed to turn over the $5,000 that he withdrew from the person's Ponce de Leon Federal Bank account, said funds to be deposited into a guardianship account.
2. The guardians shall afford the person the greatest amount of independence and self-determination with respect to her personal and property management 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. These powers include the following:
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;
g) determine whether the person should travel;
h) defend or maintain any civil judicial proceeding.
4. The guardian of the property is granted the 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 the following:
a) the property guardian 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;
I. to ascertain the full extent of the person's inheritance from the estate of M.G. G., Jr.
b) to marshal 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 guardian 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 guardian. However, payments of fees to such persons shall only be paid with prior approval of the court;
e) the guardian 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 guardian 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.
5. These powers constitute the least restrictive form of intervention consistent with the person's functional limitations.
6. The guardian of the property shall file a bond in an amount equal to the total value of the person's assets. However, during the period of temporary guardianship, the bond which is normally required pursuant to Mental Hygiene Law § 81.25 is hereby waived.
7. The guardians shall receive as compensation for performing their duties that compensation as is provided under Mental Hygiene Law § 81.28.
8. The property guardian shall have the power to retain an attorney solely necessary for legal work, or an accountant to assist in the preparation of the initial report, annual accountings, and final report or to assist in the preparation of federal and state income tax returns, subject to court approval of fees.
9. The 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 guardians.
10. 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 guardians are directed to file their designations in accordance with Mental Hygiene Law § 81.26. Said order and judgment should be filed in a timely fashion due to the exigency of these proceedings.
Any and all prior and existing Power(s) of Attorney are hereby annulled, voided and are of no legal effect. They are superseded by this order.
The County Clerk is directed to seal the file in this action in its entirety upon service of a copy of this order on the County Clerk.
Amid allegations of financial abuse of alleged incapacitated person, court froze bank accounts and appointed son as guardian of person only; independent guardian was appointed as both permanent and temporary guardian of property.