Opinion
2020-681
06-08-2021
In the Matter of S. E. M. A Person Under Disability.
David J. Berti, Esq., Court appointed Guardian ad Litem
David J. Berti, Esq., Court appointed Guardian ad Litem
S. E. M. is a daughter and distributee of M. L. M., whose estate is currently pending in this Court. S. E. M. is a person under disability; her interest in her mother's estate passes to a pre-existing Supplemental Needs Trust ("SNT") for her benefit.
David J. Berti, Esq. was appointed Guardian ad Litem ("GAL") for S. E. M. in connection with her mother's estate. Mr. Berti has participated actively in that role, including facilitating interim distributions to S. E. M.'s pre-existing SNT while the probate petition has been pending.
In furtherance of his duties as GAL in the estate, Mr. Berti became aware of two annuities payable to S. E. M., as beneficiary. Mr. Berti has requested and received from this Court supplemental orders authorizing him to obtain information about the annuities. In the context of Mr. Berti's request for that authority, the Court opened File No. 2020-681 in the name of S. E. M.
Having obtained the value of the annuities, and being aware of S. E. M.'s ongoing disability, including confirming to his satisfaction that S. E. M. is unable to independently petition the Court, Mr. Berti filed a letter petition with the Court on May 27, 2021, requesting authority as GAL to petition for the establishment of a first-party SNT for the benefit of S. E. M., to receive the annuity benefits payable to her.
S. E. M. would have the ability to petition for the establishment of a SNT herself, if the SNT had the appropriate payback provisions. EPLT §7-1.12(a)(5)(v). Mr. Berti, as GAL for S. E. M. in her mother's estate and in furtherance of his additional authority to gather information relating to the annuities payable to S. E. M., has concluded that S. E. M.'s disability precludes her from self-petitioning for this relief. The Court is not aware of an agent under a power of attorney or other individual or entity with legal authority to appear on behalf of S. E. M.. SCPA §402(1). The Court finds it appropriate to confirm Mr. Berti's continued service as GAL for S. E. M. and his authority in that role to appear on her behalf for the purpose of petitioning for the establishment of a first-party SNT. SCPA §402(2). In addition to the typical duties of a GAL to investigate and report with respect to the interests of the person for whom they are appointed, a GAL can have a more active role, prosecuting an action on behalf of the person under disability, to protect the person's rights and interests. This includes the right to ask the Court for relief, if it appears that the person's assets are in risk of being dissipated. Matter of Young, 76 Misc 2d 208 (Dutchess County Ct 1974).
The Court notes that if S. E. M. had a guardian appointed pursuant to Mental Hygiene Law Article 81, that guardian could petition on her behalf for the establishment of a SNT in this Court. SCPA §402(1). The time may come when a petition under MHL Article 81 for a guardian for S. E. M. may be appropriate. In the Court's view, the need to establish a SNT is not by itself sufficient to warrant an Article 81 application for guardianship. That would not be consistent with the least restrictive standard applicable to Article 81 proceedings. MHL §81.01; see, Matter of C.O. (G.P.), 65 Misc 3d 1230(A), *4 (Sup Ct, Broome County 2019). That is particularly true here, where the relief sought is ancillary to the responsibility already vested in the GAL. Therefore, it is hereby
ORDERED, that David J. Berti, Esq. is authorized as GAL for S. E. M. to petition for the establishment of a first party SNT for her benefit, to receive the annuity benefits payable to her as a result of her mother's death.
This Decision constitutes the Order of the Court. Dated: June 8, 2021 __________ Hon. David H. Guy Surrogate