Opinion
92220/06.
Decided May 19, 2009.
Respondent, Bernard Kufeld (Kufeld), an alleged incapacitated person (AIP), commenced the instant Art. 81 proceeding, via a self-petition, seeking to have a guardian appointed to manage his personal needs and his property. In his self-petition, Kufeld nominated Carmelina Iuliano (Iuliano), his neighbor, as his guardian. Following the filing of the initial petition, Michael Peskowitz (Michael), the nephew of Kufeld, filed a cross-petition similarly seeking the appointment of a guardian for Kufeld but opposing the nomination of Iuliano. Subsequent to the commencement of the cross-petition, Kufeld withdrew his self-petition. Following several conferences, the instant matter was set down for a hearing on March 20, 2009, wherein David Lesch, Esq., (Lesch), Maria Matos, Esq. (Matos), Joanne Peskowitz (Joanne), Michael, Michael Kufeld (M.Kufeld), Leland Turon (Turon), Iuliano, Dr. Selwyn Juter (Dr. Juter), and Loraine Corsa, Esq. (Corsa) testified.
Based upon the credible and documentary evidence adduced at the hearing, the court determines that cross-petitioner, Michael, has demonstrated by clear and convincing evidence that respondent Kufeld is incapacitated. Specifically, the court determines that Kufeld is unable to provide for his personal needs and the management of his property management. Kufeld cannot adequately understand and appreciate the nature and consequences of such inability and is likely to suffer harm if a guardian is not appointed. Though cross-petitioner has met his burden, the evidence reveals that Kufeld executed advance directives which address all of his personal needs and the management of his property. Thus, the appointment of a guardian is not warranted under the circumstances.
Summary of Trial Testimony:
David Lesch
The court credits the testimony of Lesch to the extent that he was appointed as the substitute Court Evaluator pursuant to a court order. Following his appointment, Lesch conducted an investigation. As part of his investigation he interviewed Kufeld, Iuliano and Michael. On or about July 21, 2008, Lesch was present for a portion of the medical examination conducted in his office by Dr. Juter who examined Kufeld. Additionally, Lesch testified that he personally interviewed the Kufeld three weeks later. Lesch noted that the AIP was a frail elderly man who required assistance with most activities of daily living, was unable to handle his finances and that he suffered from long term memory deficits. Lesch testified that Kufeld did not recall having met Lesch three weeks earlier, appeared confused at times, was non-responsive to various questions, and had difficulty recalling facts about his past, including information concerning his siblings who had passed away years earlier. Based on his observations, Lesch recommended the appointment of a personal needs guardian and an independent property management guardian.
Maria Matos
Matos, who was initially appointed as Court Evaluator and subsequently asked to be removed, interviewed Kufeld on or about January 4, 2007. Though Matos did not recall much about the interview, she testified that Kufeld appeared to be confused at times, changed topics and at times was not responsive to her questions. Matos similarly recommended the appointment of a guardian. More specifically, Matos recommended appointing Iuliano as guardian for personal needs and an independent guardian for property management.
Following Matos' acceptance of employment with the N.Y.S. Unified Court System, she requested and was allowed to be relieved of her responsibilities as Court Evaluator.
Joanne Peskowitz
Joanne testified in relevant part that she was the niece of Kufeld and the sister of the cross-petitioner, Michael. Joanne recalled regularly interacting with Kufeld during the summers in Hunter, New York, while she was growing up. Joanne recalled speaking to Kufeld in 1995 when Kufeld was caring for his sister Helen who was ill. Joanne offered to help Kufeld care for her aunt but Kufeld informed her that he did not need any assistance. Following Helen's death, Joanne recalled visiting Kufeld in 1998. Kufeld was purportedly conversational and friendly. Joanne made various attempts to keep in contact with her uncle there after, via telephone and mail, but her uncle was not very receptive. In 2004, Joanne's mother Lorraine became ill. Joanne visited Kufeld in his Bronx County home with the intention of seeking help with her mother's healthcare expenses. It was Joanne's belief that Kufeld was in possession of or in control of funds left by his parents for the benefit of Kufeld and his siblings. Joanne informed Kufeld of his sister's illness and asked Kufeld to release some of the family funds or that portion of Lorraine's funds to help offset her medical expenses. Kufeld purportedly only released a small sum of the money to Lorraine's husband. In mid-2006 and sometime thereafter, Joanne recalled seeing her uncle. It was around the time that her mother became terminally ill. Joanne recalled picking up her uncle at his home in Hunter and driving him to her mother's home. During the ride, Kufeld asked what was wrong with Lorraine. Joanne explained that her mother was suffering from Alzheimer's. After visiting with his sister, Kufeld once again asked Joanne what was wrong with Lorraine and asked if she was going to get better. Joanne's mother passed away on or about June 2006. Despite various attempts to contact her uncle, Joanne testified that they were unable to reach him and inform him of the passing of Lorraine. Joanne, however, recalled seeing Kufeld accompanied by Iuliano at the unveiling of Lorraine's grave stone. Joanne described Kufeld as being appropriately dressed, hunched over and requiring assistance while ambulating.
In October 2007, sometime around Columbus Day, Joanne recalled seeing Kufeld at his Hunter home. Kufeld was accompanied by Iuliano and a male, purportedly Iuliano's husband. Joanne spoke to her uncle briefly and he informed her that he was doing okay, "that people were watching him — the lawyers and accountants-and that he was in control of everything." Joanne noted that he was not responsive to her questions, frequently went off topic and once again stated "he was being watched, its very complicated." Joanne described Kufeld as being "fearful." Joanne also testified that back in 2004 she also had to repeat several questions to Kufeld.
Michael Kufeld
M. Kufeld testified that he is Kufeld's nephew, the son of Kufeld's brother Leon. Since the passing of his father in 1983, M. Kufeld has had very little contact with his uncle. Within the last two years, M. Kufeld has spoken to his uncle on at least one occasion. Previously, M. Kufeld visited his uncle in 1990 and sporadically sent letters to his uncle. Though M. Kufeld believed his uncle was always odd at times, he indicated that he believed that to be so because his uncle frequently forgot his son's name.
Michael Peskowitz
Michael testified that he is Kufeld's nephew, the son of Lorraine and the brother of Joanne. In 1976, after completing college, Michael lived with his uncle in Bronx County for a couple of weeks. In 1978, Michael worked in the World Trade Center, the same building as his uncle. Although Michael made attempts to meet with his uncle Kufeld, he regularly resisted Michael's overtures. Despite his uncle's reluctance to meet with him, Michael frequently saw his uncle during the summer months in Hunter. In 1995, Michael recalled being informed that his aunt Helen had fallen and fractured a bone. Michael traveled to the Bronx to assist Kufeld and to ensure Helen was fine. Following Helen's fall, Michael maintained some contact with his uncle. From 2001 through 2004, Michael's contact with his uncle centered around family related events and issues. Michael also had discussions with his uncle concerning an alleged bank account which was jointly held by Lorraine, his mother, and Kufeld. Michael also indicated that Kufeld was frequently evasive when discussions were held about the account. It was Michael's belief that the account was created by his grandparents for the benefit of both Lorraine and Kufeld but that Kufeld had lone access to the account.
In 1998, Michael's mother became ill with Alzheimer's. Sometime around 2001, Lorraine's illness began to worsen and she required 24 hour care. Michael or his father, Jerome Peskowitz, called Kufeld for the purpose of having him release Lorraine's funds in order to pay for her mounting medical expenses. In response, Kufeld sent a small sum. When Michael asked Kufeld why he was unwilling to assist financially or unwilling to release Lorraine's funds, Kufeld purportedly stated that he was having difficulty getting access to the monies and that people were watching him.
From 2004 through 2005, Michael had very little contact with his uncle. During the same period, Lorraine's medical condition was worsening. Michael recalled that during the summer of 2004, he had a conversation with his uncle concerning Lorraine's financial needs. Michael informed Kufeld that he did not understand why Lorraine's funds were not being made available to her. In response, Kufeld stated that he was having problems with his investments, that people were watching him, that the Russian mafia was after him and that he did not want Michael's assistance.
In May 2006, Lorraine passed away. Despite their best efforts, Michael and the family were unable to reach Kufeld. In the summer of 2006, Michael discovered that Kufeld was purportedly missing after spending a weekend in Hunter. After making several phone calls to Kufeld's regular taxi driver, the local police and several hospitals, Michael discovered that Kufeld had been taken to Montefiore Medical Center. Purportedly, Kufeld was taken to the emergency room after suffering heat stroke. After a two day stay in the hospital, Kufeld was released and sent home. Michael made several attempts to contact Kufeld upon his release from the hospital but he never received a return phone call.
In early 2007, Kufeld filed a self-petition with the court seeking the appointment of a guardian and nominating Iuliano as his guardian. In May 2007, Michael spoke to Kufeld at the unveiling of Lorraine's head stone. Michael informed Kufeld that he and the family made attempts to contact him following the passing of Lorraine but that they were unsuccessful. During their conversation, Kufeld expressed concerns that "the lawyers wanted his money." Since May 2007, Michael has had very little contact with his uncle. Lastly, Michael testified that he subsequently became aware that Kufeld executed a health care proxy, a durable power of attorney and executed a deed wherein he conveyed an interest in his Bronx County home.
Leland Turon
Turon testified that he is a self-employed taxi driver and resides in Hunter, NY. He first met Kufeld in the mid 1990's. From the mid 1990's and continuing thereafter, Turon routinely transported Helen and Kufeld to and from the Bronx and Hunter. During the time he drove Kufeld and his sister, Turon met many of the family members, including Lorraine and her husband. In the summer months, Turon would make in excess of seven round trips. This routine continued until Helen passed away. Turon last drove Kufeld home from Hunter on or about August 7, 2006. Just before the ride to the Bronx, Turon noticed that Kufeld was disoriented and disheveled. On the ride home, Kufeld was not talkative as usual. Despite noticing that Kufeld was not well and that he needed assistance getting into the house, Turon dropped Kufeld off and drove back to Hunter. Upon his arrival to Hunter, Turon called Iuliano at her home to inform her that Kufeld needed assistance. Sometime later, Turon called Iuliano who informed him that Kufeld was taken to the hospital for dehydration and blood issues. Turon made several subsequent calls to Kufeld's home but was only able to speak to Iuliano who informed him that Kufeld was doing fine. That was the last communication Turon had with Kufeld and Iuliano.
Carmelina Iuliano
Iuliano testified that she has lived at her Bronx County residence for approximately twenty five years. She is a neighbor of Kufeld and resides in the house adjacent to Kufeld's home with her daughter and formerly with her husband, who passed away. Iuliano has known Kufeld since 1985 when she befriended him, as well as his sister Helen. Sometime after 1990, Iuliano saw less and less of Helen and when she asked Kufeld about her, he would frequently state that Helen was not well. Iuliano also testified that her husband and Kufeld frequently spoke and that her husband would often help Kufeld run errands.
Iuliano testified that from the mid 1980's through 2000, Kufeld was fairly active. He would travel to and from work, travel to and from upstate New York, went to doctor's appointments, and shopped. During that time, Kufeld required little or no assistance. From 2000 through 2005, Iuliano saw no real changes in Kufeld but noticed that he traveled less frequently. During the same period, Iuliano would frequently prepare meals for Kufeld. After Helen's passing, Iuliano prepared more meals for Kufeld and noted that on weekends he ate out.
Though Kufeld was active, Iuliano testified that he hired workers to perform tasks in the outside portion of the house. When Kufeld needed assistance with other matters, such as ordering fuel she or a family member would assist him. Though Iuliano did not give a time frame, she testified that at some point in time she suggested to Kufeld that he stop driving and when he needed a ride she and her family would assist him.
Following Kufeld's hospitalization in 2006, Iuliano and her family would assist Kufeld with his medical appointments. She or a family member would take Kufeld to his appointment, drop him off and return to pick him up after he was done. Soon after his hospitalization, Iuliano also began assisting Kufeld with his banking needs. She prepared deposit slip forms for him, wrote checks for him, mailed payments, and escorted him to and from the bank. Similarly, she and her daughter assisted Kufeld with his medical appointments. Though Iuliano testified that she became aware that in May 2005, Kufeld executed a Durable Power of Attorney naming her as his agent, she did not take an active role in paying his bills until sometime after August 2006. In late 2006 or early 2007, Kufeld hired a live-in aide. Iuliano obtained the aide after Kufeld asked her to "get one." Originally, an aide was hired to work from 9:00 am through 4:00 pm but Kufeld purportedly fell one evening thereby creating the need for a 24 hour aide. Iuliano retained the aide on behalf of Kufeld after he indicated he did not want to be alone and because she thought it was best for Kufeld. Iuliano testified that an aide was not hired previously because Kufeld never requested the assistance of an aide and because Kufeld seemed to be doing just fine.
During the time that Iuliano and her family assisted Kufeld, they never received compensation for their services. She is aware, however, that in 2005, Kufeld executed a deed retaining for himself a life estate in his home and granting Iuliano and possibly her daughter a reminder estate. She testified that despite knowing of the existence of a Durable Power of Attorney and a Health Care Proxy naming her as Kufeld's agent, she has never sought to exercise any of the powers given to her pursuant to said documents.
In 2005, Kufeld asked Iuliano to obtain an attorney for him. After making several inquires, Iuliano was given the name of Lorraine Corsa, Esq. (Corsa) who Kufeld eventually meet. As a result of his meeting with Corsa, Kufeld executed a Durable Power of Attorney, a Health Care Proxy and a deed. Iuliano testified that she did not retain Corsa nor did she have a prior relationship with her.
It was Kufeld who retained her. Iuliano also testified that Kufeld executed the deed because he felt his family was after his money and because he was afraid his family was going to put him in a nursing home.
Iuliano testified that prior to Kufeld commencing the self-petition seeking the appointment of a guardian, which was subsequently withdrawn, Kufeld asked her to inquire about retaining an attorney. Iuliano spoke to several individuals at her work and she was given Steven Cottler's (Cottler) name. Kufeld purportedly subsequently met with Cottler, a meeting which Iuliano was not privy to.
Iuliano testified that to date, she continues to help Kufeld with his banking and some of his financial needs. She goes over the bills with Kufeld, prepares the checks for his signature and makes deposits on his behalf. With respect to Kufeld's caregiver, Iuliano writes the checks out and Kufeld signs them. All of Kufeld's tax related matters, including annual tax returns are prepared by his accountant.
During the pendency of this proceeding, namely in 2008, Iuliano became aware that Kufeld executed a will which was prepared by his attorney, Cottler. Iuliano has not seen the will and is not aware of the terms of the will and is not aware if she is a distributee. She believes, however, that Kufeld may have made a distribution to several charities. Prior to executing his will, Kufeld asked her for a list of charities and she provided him with such a list.
Dr. Selwyn Juter
Dr. Juter testified that he is a licensed psychiatrist. He examined Kufeld on July 21, 2008. Prior to examining Kufeld he examined a set of medical records concerning Kufeld's past medical history. Based on his examination, Dr. Juter reported that Kufeld suffered memory deficits. Upon being questioned, Kufeld gave vague answers, was unable to provide answers to relevant questions about his past and gave a very disjointed psychiatric history. Based on his examination, Dr. Juter also reported that Kufeld had a very poor insight about his medical needs. Kufeld was unable to give any relevant information concerning his current medical condition(s) and presented very disjointed medical information. When questioned about his social history, he again gave very disjointed information and did not recall many relevant facts.
As part of his examination, Dr. Juter also conducted a mental status examination. Though Kufeld was oriented to self, he was not oriented to time and place. He did not know what season it was, he did not know where he was and he did not recognize his attorney, who accompanied him to the exam. When he was asked questions concerning his ability to conceptualize, his responses seemed to indicate that he had an impaired ability to thoroughly understand issues, make appropriate decisions and plan for the future. It was Dr. Juter's opinion that Kufeld had poor insight and judgment and was unable to understand and/or appreciate the extent of his short comings. Though Dr. Juter did not make a diagnosis he testified that Kufeld exhibits signs of Dementia, possibly Alzheimer's. He described Kufeld's Dementia as mild to moderate. It was Dr. Juter's opinion that Kufeld lacked the capacity to handle his personal needs and the management of his property.
Lorraine Corsa
Corsa testified that she is a licensed attorney. On May 18, 2005, Corsa meet Kufeld. The meeting was arranged by Iuliano. On the day of their meeting, Kufeld executed a deed, dated May 11, 2005. On the date of the meeting, Corsa spent approximately one to two hours explaining to Kufeld the contents of the deed prior to its execution. Although Iuliano accompanied Kufeld to her office, all discussion between Corsa and Kufeld were held in private. In addition to the deed, Corsa prepared a living will, a durable power of attorney, and a health care proxy naming Iuliano as Kufeld's agent. The documents were prepared at Kufeld's request and subsequently signed by him.
Kufeld was originally supposed to meet with Corsa on May 11, 2005 but the date was changed to May 18, 2005.
All the documents were admitted into evidence.
MHL § 81 Guardianship Proceedings, Generally
The legislative purpose of MHL § 81 is:
to promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person's life.
MHL § 81.01.
Incapacity, as defined by MHL § 81.02 (b), is a determination that an alleged incapacitated person is likely to suffer harm because of said person is unable to provide for personal needs and/or property management; and said person cannot adequately understand and appreciate the nature and consequences of such inability. Thus, whether to appoint a guardian is a matter of discretion requiring appropriate when the court to determine that the person alleged to be incapacitated consents to the appointment of a guardian or actually needs one. MHL § 81.02(a); Matter of Daniel TT , 39 AD3d 94 (3rd Dept. 2007); Matter of Maher, 207 AD2d 133 (2nd Dept. 1994).
A guardian should be appointed if and when the court determines that such appointment is necessary to provide for the personal needs and property management of a person alleged to be incapacitated and there is consent for the appointment or a finding of incapacity as defined by MHL § 81.02(b). Id. MHL § 81.02(b) defines incapacity as the inability to provide for personal needs and/or property management coupled with the inability to appreciate such inability. Whether someone can provide for his/her personal needs and or property management requires an inquiry and analysis of all available resources, such as a power of attorney. Matter of Maher, supra. Such a determination also necessarily involves an inquiry and analysis of an person's functional level and his/her ability to manage all activities of daily living. Id.
If there are mechanisms in place and resources, such as a power of attorney, which adequately provide for a persons needs, the court should deny the petition and not appoint a guardian. Id. In Matter of Maher, the court denied the petition seeking an appointment of guardian to manage respondent's property after finding,. inter alia, that the person alleged to be incapacitated, through the execution of a power of attorney, had adequately provided for the management of his property, thereby obviating the need for a guardian. Id
Determination of Incapacity
The criteria for a determination on the issue of incapacity under MHL § 81.02(a)(2) is "crucial to the detailed and fact-specific guardianships that Article 81 of the MHL was designed to produce." Matter of Edda, 223 AD2d 309, 315. "Conclusory allegations without specific factual allegations of incapacity are insufficient and warrant dismissal." Matter of Meisels, 10 Misc 3d 659 citing Matter of Petty, 256 AD2d 281. This is primarily because the Fifth Amendment protections against self-incrimination apply to Article 81 proceedings where a person's "life and liberty are at risk due to allegations of mental illness or incapacity," requiring a petitioner to present specific factual allegations regarding the AIP's incapacity. Matter of A.G. , 6 Misc 3d 447. The specific factual allegations must be supported by clear and convincing evidence of the AIP's incapacity. See, MHL §§ 81.02 and 81.12(a).
To determine incapacity, the court must undertake a detailed analysis, on the record, of the physical, mental, and financial health of the alleged incapacitated person. MHL § 81.06; Matter of Edda Wogelt, 223 AD2d 309, 314. The Court "is required to make an assessment of . . . any physical illness, any mental disability . . . and all other relevant facts and circumstances . . . regarding . . . functional level and understanding and appreciation of the nature and consequences of his or her functional limitations." Matter of Jaczak, 167 Misc 2d 766, 770. The totality of the circumstances including limitations in understanding, vulnerability to undue influence and fear of loss of assistance caused by dependence on a guardian and extent of isolation from other resources. In re Eccleston, 303 AD2d 263 citing MHL § 81.06(1).
Discussion
The court credits the testimony of Lesch, Matos, Joanne and Dr. Juter, which collectively reveals that as early as January 2007, Kufeld was exhibiting signs of Dementia. Kufeld is described as being confused, unfocused, unresponsive to questions, and frequently changed topics in the middle of conversations. Similarly, there was evidence to suggest that Kufeld, an elderly frail man, required assistance with most activities of daily living and was unable to manage his finances. The most compelling testimony was elicited from Dr. Juter who testified that he examined Kufeld on July 21, 2008 and that based on his exam he concluded Kufeld exhibited signs of Dementia. He noted that Kufeld was a poor historian, was not oriented to place and time, when prompted provided disjointed medical information, and displayed both short term and long term memory lapses. It was Dr. Juter's medical opinion that Kufeld suffered from mild to moderate Dementia, possibly Alzheimer's. Further, Dr. Juter testified that Kufeld lacked poor insight and judgment and was unable to understand the extent of his shortcomings.
Though the court credits the testimony of Joanne, M. Kufeld and Michael, most of their testimony concerned the time period between 1983 and prior to 2005. M. Kufeld provided very little relevant testimony concerning Kufeld's functional limitations. Most of Joanne's testimony concerned her interaction with her uncle from 1995 through 2004. Of some relevance, Joanne testified that in mid 2006, she recalled seeing her uncle in Hunter and tried to explain to him that her mother, Lorraine, was ill, suffering from Alzheimer's. Though Joanne testified that she had to repeat information previously given, there is no contemporaneous medical evidence to support a finding that Kufeld suffered from a mental illness at that time.
Similarly, the court credits the testimony of Michael that from 1976 through 2003, he has had sporadic contact with his uncle. Most of his contact with his uncle centered around family events, mostly summer time gatherings in upstate New York. From 2004 through 2005, Michael had very little contact with his uncle. Michael, however, testified that in 2004 or 2005 he had a conversation with Kufeld concerning the release of family funds or funds purportedly belonging to Lorraine, Michael's mother. During the conversation, Kufeld indicated that he was having difficulties with investments, people were watching him and he raised concerns about his safety. Though the testimony was uncontradicted, there is also evidence that Kufeld was routinely secretive of his and his family's finances and that he was often times reluctant to release funds to family members. Other than isolated instances where Kufeld requested that information be repeated to him or he asked repeated questions, there is no medical evidence to demonstrate that at or about the time of the conversations referred to by Michael or Joanne, Kufeld suffered from a mental illness.
Lastly, the court credits the testimony of Iuliano and Corsa, to the extent that up until his hospitalization in 2006, Kufeld was fairly active. He was able to perform most of, if not, all the activities of daily living with little or no help. Though Kufeld required the assistance of his neighbor, he was for the most part performing most of his daily functions. Kufeld was eating regularly, he was attending to his medical needs, and his finances were being managed. The evidence suggests, however, that his activities appeared to have lessened around the year 2005. He was traveling less and required further assistance from his neighbor.
In May 2005, Kufeld execute a deed conveying an interest in his home to his neighbor and her daughter. According to Corsa, she meet with Kufeld privately, explained the purpose of the document and thereafter Kufeld executed it. Similarly, Corsa testified that at Kufeld's request she prepared a durable power of attorney and health care proxy, naming Iuliano as his representative. She testified that the documents were explained to Kufeld and that he executed the documents thereafter. Though cross-petitioner contends that Iuliano arranged to have the documents prepared, there is no credible evidence to supported such a finding. Iuliano's sole involvement was to procure an attorney, at Kufeld's behest, and to drive Kufeld to the appointment/meeting with the attorney. Corsa testified that she had a private meeting with Kufeld wherein she discussed the contents of the documents to him and after discussing the documents, he executed them. There is no evidence of coercion nor any evidence that Iuliano instructed Corsa what documents to prepare and what the documents should provide for. Lastly, there is no evidence to suggest that Kufeld was incapacitated or in anyway incompetent at the time he executed the advance directives.
While the evidence clearly demonstrates Kufeld is incapacitated, is unable to provide for his personal needs and/or property management, cannot adequately understand and appreciate the nature and consequences of such inability, and is likely to suffer harm because of his shortcomings, the circumstances do not warrant the appointment of a guardian. It is well settled that even if all the elements of incapacity are present, a guardian should be appointed only as a last resort, and should not be imposed if available resources or other alternatives will adequately protect the person Matter of Maher, 207 AD2d 133 (2nd Dept. 1994), citing Law Revision Commission Comments, McKinney's Cons. Laws of NY, Book 34A, Mental Hygiene Law § 81.02. Such resources have been defined to include a durable power of attorney, health care proxy, and/or a home health aide. See, MHL § 81.03(e). The existence of such resources promotes the statutory goal of requiring dispositions which are the least restrictive form of intervention. MHL § 81.01. Here, Kufeld executed advance directives in May 2005. Though it is well settled that the court may, in its discretion, set aside, modify or amend an executed appointment or delegation of power upon a showing that the agent abused its authority See, MHL § 81.29(d); In re Isadora R., 5 AD3d 494 (2nd Dept. 2004), or that the document was executed at a time of incapacity, In re Mary J, 290 AD2d 847 (3rd Dept. 2002), or because the agent or grantee is unable or unwilling to fulfill its duties, In re Isadora R, supra, petitioner has not proffered sufficient evidence which warrants such action. Petitioner's assertion that the power of attorney and health care proxy were executed at a time of incapacity or when Kufeld was incompetent is not supported by the evidence. Such a finding would be, at best, speculative. Moreover, there is no evidence to support a finding that the designated agent, Iuliano, abused her discretion or that she is unable or unwilling to serve as a fiduciary.
Conclusion
Based on the foregoing, it is the court's determination that petitioner has demonstrated by clear and convincing evidence that Kufeld is incapacitated as defined by statute. MHL § 81.02 (b). The court, however, finds that prior to his incapacity, Kufeld executed a durable power of attorney and health care proxy naming Iuliano as his attorney-in fact and as his health care proxy. The evidence demonstrates that with the assistance of Iuliano and a home health aide, Kufeld has been able to manage his daily activities of living, his personal needs, his finances and property. It is the court's determination that no showing has been made to warrant the modification, amendment or revocation of the durable power of attorney or health care proxy. Under the circumstances, it is the court's determination that the appointment of a guardian is not warranted.
Respondent is directed to serve a copy of this decision and order, with notice of entry, upon petitioner, via certified mail within 21 days hereof. Settle Order.
This constitutes the Court's decision and order.