Opinion
2021-03817 Index 85221/20
04-20-2022
In the Matter of Maria Z. (Anonymous), appellant; Bonifacio Z. (Anonymous), et al., respondents.
Mental Hygiene Legal Service, Garden City, NY (Michael D. Neville, Lisa Volpe, Felicia B. Rosen, and Dennis B. Feld of counsel), for appellant. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Lake Success, NY (Eric Broutman, Douglas Stern, and Sarah Chussler of counsel), for respondent Bonifacio Zaino.
Mental Hygiene Legal Service, Garden City, NY (Michael D. Neville, Lisa Volpe, Felicia B. Rosen, and Dennis B. Feld of counsel), for appellant.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Lake Success, NY (Eric Broutman, Douglas Stern, and Sarah Chussler of counsel), for respondent Bonifacio Zaino.
FRANCESCA E. CONNOLLY, J.P., SHERI S. ROMAN, LINDA CHRISTOPHER, WILLIAM G. FORD, JJ.
DECISION & ORDER
In a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian of the person and property of Maria Z., an alleged incapacitated person, Maria Z. appeals from an order of the Supreme Court, Richmond County (Charles M. Troia, J.), entered May 12, 2021. The order, insofar as appealed from, after a hearing, granted the petition.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The petitioner commenced this proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of Maria Z., his adult sister, an alleged incapacitated person. In an order entered May 12, 2021, the Supreme Court, after a hearing, inter alia, granted the petition. Maria Z. appeals.
For a court to exercise its discretion to appoint a personal needs and/or a property management guardian, it must make a two-pronged determination (see Mental Hygiene Law § 81.02[a]; Matter of Samuel S. [Helene S.], 96 A.D.3d 954, 957; Matter of Daniel TT. [Diane UU.], 39 A.D.3d 94, 96-97). With respect to the first prong, when seeking to appoint a personal needs guardian, the court must first determine that "the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety" (Mental Hygiene Law § 81.02[a][1]). Similarly, in appointing a property management guardian, with respect to the first prong, the court must first determine that "the appointment is necessary... to manage the property and financial affairs of that person" (id.). The second prong concerning either the appointment of a personal needs or a property management guardian requires that the court determine "that the person agrees to the appointment, or that the person is incapacitated" (id. § 81.02[a][2]). The petitioner has the burden of establishing the alleged incapacitated person's incapacity and need for a guardian by clear and convincing evidence (see id. §§ 81.02[b]; 81.12[a]). "Moreover, a guardian should be appointed only as a last resort, where no available resources or other alternative will adequately protect the alleged incapacitated person" (Matter of Fritz G., 164 A.D.3d 503, 504; see Matter of Harold W.S. [Mark P.-Lauralyn W.], 134 A.D.3d 724, 725).
Here, the hearing record established Maria Z.'s incapacity by clear and convincing evidence (see Mental Hygiene Law § 81.02[b]). Further, the evidence supported a finding that the appointment of a guardian was the least restrictive form of intervention necessary to provide for Maria Z.'s personal needs and to manage her property and financial affairs (see id. § 81.02[a]; Matter of Carolyn S. [Gaylor], 192 A.D.3d 1114, 1116; Matter of Harold W.S. [Mark P.-Lauralyn W.], 134 A.D.3d at 725; Matter of Barbara P. [Doar], 72 A.D.3d 827, 827).
CONNOLLY, J.P., ROMAN, CHRISTOPHER and FORD, JJ., concur.