Opinion
01-02-2015
In the Matter of the Application of William MITCHELL, Petitioner–Respondent, for the Appointment of a Guardian of the Person and/or Property of Deborah A.L., an Alleged Incapacitated Person, Respondent–Appellant. (Proceeding No. 1.) In the Matter of the Application of Michael G. Lang, Petitioner–Respondent, for the Appointment of a Guardian of the Person and/or Property of Deborah A.L., an Alleged Incapacitated Person, Respondent–Appellant. (Proceeding No. 2.)
Amdursky, Pelky, Fennell & Wallen, P.C., Oswego (John D. Conners of Counsel), for Respondent–Appellant. Shanley Law Offices, Oswego (P. Michael Shanley of Counsel), for Petitioner–Respondent Michael G. Lang. Rodak Law Office, P.C., Oswego (Joseph G. Rodak of Counsel), for Petitioner–Respondent William Mitchell.
Amdursky, Pelky, Fennell & Wallen, P.C., Oswego (John D. Conners of Counsel), for Respondent–Appellant.
Shanley Law Offices, Oswego (P. Michael Shanley of Counsel), for Petitioner–Respondent Michael G. Lang.
Rodak Law Office, P.C., Oswego (Joseph G. Rodak of Counsel), for Petitioner–Respondent William Mitchell.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, and SCONIERS, JJ.
MEMORANDUM: In these proceedings pursuant to Mental Hygiene Law article 81, respondent, an alleged incapacitated person (AIP), appeals from an order that determined that she is incapacitated and in need of a guardian. We agree with the AIP that Supreme Court erred in making that determination without considering "the ‘sufficiency and reliability of available resources' ( Mental Hygiene Law § 81.02[a][2] ) to satisfy the AIP's personal needs and property management without the need for a guardian" ( Matter of Samuel S. [Helene S.], 96 A.D.3d 954, 957, 947 N.Y.S.2d 144, lv. dismissed 19 N.Y.3d 1065, 955 N.Y.S.2d 542, 979 N.E.2d 802 ). It is undisputed that the AIP had "available resources," i.e., a power of attorney and healthcare proxy (see Mental Hygiene Law § 81.03[e] ), and the court should therefore have inquired whether those advance directives were adequate to protect the AIP's personal and property interests before determining that she is incapacitated and in need of a guardian (see Samuel S., 96 A.D.3d at 956–957, 947 N.Y.S.2d 144 ; Matter of May Far C., 61 A.D.3d 680, 680, 877 N.Y.S.2d 367 ; Matter of Maher, 207 A.D.2d 133, 140, 621 N.Y.S.2d 617, lv. denied 86 N.Y.2d 703, 631 N.Y.S.2d 607, 655 N.E.2d 704, rearg. denied 86 N.Y.2d 886, 635 N.Y.S.2d 951, 659 N.E.2d 774 ).
We therefore remit the matter to Supreme Court for further proceedings on the petitions.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, and the matter is remitted to Supreme Court, Oswego County, for further proceedings.