Opinion
2019-1806
06-26-2020
In the Matter of the Application of JILLIAN B., Petitioner, Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Person and Property of v. BENNY D., an Alleged Incapacitated Person (AIP).
for Petitioner: Zachary Morahan, Esq., Coughlin & Gerhart, LLP, 99 Corporate Drive, Binghamton, NY 13904 For Respondent: Scott Moore, Esq. 231 W. Water Street, Elmira, NY 14901
for Petitioner: Zachary Morahan, Esq., Coughlin & Gerhart, LLP, 99 Corporate Drive, Binghamton, NY 13904
For Respondent: Scott Moore, Esq. 231 W. Water Street, Elmira, NY 14901
David H. Guy, J.
Procedural Background
On November 15, 2019, Jillian B. (Petitioner) filed a petition pursuant to Article 81 of the Mental Hygiene Law, seeking her appointment as the Guardian of the Person and Property of her father, Benny D., an alleged incapacitated person (AIP). The Court issued an Order to Show Cause, dated November 22, 2019, appointing Mental Hygiene Legal Service (3rd Dept.) as counsel to represent AIP and setting the hearing for this matter for December 23, 2019. The Order to Show Cause also appointed Petitioner and her sister, Doreen D., as temporary co-guardians with the authority to choose the place of abode of AIP, upon his or his counsel's consent only, based on the petition's allegations that AIP would be at risk of harm if he were to leave Woodbrook Assisted Living Residence (Woodbrook), where he was living at the time of the petition and where he remains to-date.
AIP retained Scott Moore, Esq. as his counsel to represent him in this matter, and the Court relieved Mental Hygiene Legal Service (3rd Dept.) from its representation, based on a finding that AIP freely and independently retained Mr. Moore. Mr. Moore has done a commendable job advocating AIP's position in this matter.
The hearing commenced on December 23, 2019, continued February 21, 2020, and concluded by virtual hearing via Skype for Business on May 13, 2020. Pending the conclusion of the hearing, the Court issued a temporary order dated February 26, 2020, sealing the record in this matter and prohibiting any change in the placement of AIP, directing his residence at Woodbrook continue pending the conclusion of the hearing and until further order of the Court.
Throughout the hearing in this matter, AIP appeared with his counsel, Scott Moore, Esq., and Petitioner appeared with her counsel, Zachary Morahan, Esq. At the conclusion of petitioner's case, Mr. Moore made a motion to dismiss the petition, arguing Petitioner had not met her burden. The Court denied the motion. At the conclusion of the hearing, the Court reserved its decision and allowed counsel to submit written summations, which both did by letter briefs. Mr. Moore submitted a reply letter brief dated May 22, 2020.
Upon review and consideration of the petition, testimony, written summations, and controlling authority, the Court now issues this Decision.
Petitioner's Case
In support of her petition, Petitioner testified and called witnesses to testify in support of the relief requested in the petition.
Petitioner testified she lives in North Carolina, and AIP generally has had a good relationship with her and her family. AIP has become more forgetful over recent years, with his memory issues becoming much worse in 2019. During a week long Christmas visit with Petitioner in the winter of 2018, he had moments of confusion and did not eat more than one time per day. In February 2019, Petitioner visited AIP again at his home for six days, in response to AIP's sister telling Petitioner she was concerned about AIP's care and well being. During that visit AIP did not look good and generally refused to eat. Following the visit, Petitioner hired aides to cook, clean, and supervise AIP's medication administration, though AIP resisted the help of caregivers and purposefully appeared nude in front of the caregivers on occasion. Petitioner also began contacting representatives at care facilities, including Woodbrook, to inquire about AIP's placement at a facility.
In May 2019, Petitioner brought AIP to North Carolina, where he stayed until the end of June. AIP was placed at an assisted living facility in North Carolina for ten days, which he did not like, and he joined Petitioner's family on trips to a beach house, which he complained about. AIP had incontinence issues he refused to acknowledge.
AIP agreed to move into an assisted living facility if Petitioner returned him to New York. He was admitted to Woodbrook on July 1, 2019. Petitioner agreed to pay the $5,000 per month fee for AIP's stay at Woodbrook from July through November, in exchange for taking possession of concrete construction forms owned by AIP, valued at $25,000. AIP agreed to this sale and participated when Petitioner picked up the forms in April 2019.
AIP lost his driver's license in February 2019 and in July he sold his truck for $9,000. AIP's trailer-style home was sold by Petitioner as agent under Power of Attorney for $5,000 after his admission to Woodbrook. The proceeds of these sales have been held or used for AIP's benefit, some in accounts not in his name.
AIP was generally doing better as of September and October 2019, though he would still drive the vehicle of Judy F., whom he met (and began a relationship with) at Woodbrook. When Petitioner visited AIP during that time, AIP told Petitioner he was going to move into Judy F.'s room, to cut his rent expense in half. AIP also indicated he wanted to leave Woodbrook, but Petitioner tried to talk him out of it.
Through Petitioner's testimony, a Power of Attorney and Health Care Proxy, both executed by AIP in 2015, were admitted into evidence. Petitioner testified that neither document, to her knowledge, had been revoked.
A document entitled "Health Care Power of Attorney," dated June 7, 2015, was entered into evidence. There also appears to be a separate document, the standard form Health Care Proxy, executed by AIP on the same date.
Petitioner is the successor agent under the Power of Attorney and Health Care Proxy. The original named agent resigned from both in February 2019. The Power of Attorney and Health Care Proxy were both drafted as springing in nature, to become effective upon a physician making a determination that AIP lacks capacity. No such determination was ever made, but Petitioner confirmed she signed the bill of sale for AIP's trailer as the agent under his Power of Attorney and deposited the money in AIP's bank account without question or difficulty. Petitioner was unaware the documents were not currently effective.
Lauri Sweeney, registered nurse and executive director of Woodbrook, testified that she sees AIP daily. She said that he toured the facility prior to his admission, and AIP was not happy during the time of his transition to living at Woodbrook. She has observed him suffering some forgetfulness, but she believes that with AIP receiving lots of stimulation and prompting at Woodbrook, his short-term memory has improved. Ms. Sweeney expressed concern about AIP's ability to independently manage his medications, which Woodbrook assists with. She opined that Judy F. is behind three months in payments to the facility and does not exhibit good financial management skills.
Ms. Sweeney explained Woodbrook does not restrict residents from leaving the facility and that AIP could terminate his residence contract at any time. AIP leaves frequently, with Judy F. If AIP were to terminate his contract, Ms. Sweeney would make a referral to Adult Protective Services to ensure the implementation of necessary community services, which she does not have to do but sometimes does in certain cases. Ms. Sweeney did not have first-hand knowledge of AIP's housekeeping skills; Woodbrook addresses those needs as well.
Doreen D., AIP's daughter, testified that she lives in Texas but often speaks with AIP on the phone. She noticed a change in AIP's behavior in the fall of 2018. He began to call her and ask her for help, as he was starting to become unable to pay his bills and suffering confusion regarding his accounts. Doreen D. visited AIP in February 2019, and she described his house as smelling bad due to rotting food, which AIP did not seem to comprehend. She observed blood in AIP's bed, which he could not explain. AIP had not been taking his medications correctly but denied any issue with medication management. She tried explaining the use of a pill organizer to AIP, but he insisted he could do it on his own. During this time, she asked AIP the year, and AIP identified it as "1980."
Doreen D. testified that during the visit, AIP pointed a gun at her, which made her fearful for her life. She left his house after that incident and returned the next day to take away his guns and hunting knives. Doreen D. also testified as a rebuttal witness, to reiterate that AIP was in bed when she entered his home, came out of the bedroom, and pointed the gun directly at her.
Doreen D. took AIP for two surgeries in 2019, between February and July. He was not eating properly and losing weight. After his admission to Woodbrook, she would call AIP, but he eventually stopped taking her calls.
Julie P., AIP's sister, testified that she lives in Elmira, is a nurse, and has a close relationship with AIP. Julie P. believes AIP began to change about five years ago, when he would ask her frequent questions about his health. About a year ago, he began calling her daily with questions about a skin issue, asking the same questions every day. He did not seem to understand her answers. He also called her daily to ask about taking his medications.
In the winter of 2018 and 2019, Julie P. visited AIP two to three times per week. His home had the odor of garbage, piles of dirty clothes, soiled sheets, and moldy fruit. She described AIP as having poor hygiene. AIP told her twice he did not know how to get to the doctor's office, and he admitted that while driving, he sometimes did not know where he was.
Julie P. was AIP's designated agent under his Power of Attorney and Health Care Proxy, but she resigned as agent under the Power of Attorney in February 2019, for reasons she did not articulate.
Janet R., AIP's ex-wife, testified she was previously married to AIP twice, and together they have three children. She and AIP had a mostly good relationship for 25 years, until about August 2019. According to Janet R., around that time AIP was not feeding himself properly or washing his clothes regularly. She offered to help AIP with his medication, and though he refused, she helped anyway. She observed moldy food in AIP's house during this time period, and she would take him out for meals three or four times per week. Janet R. often observed the stovetop of his electric range being left on, once resulting in a smoldering cereal box and a melted colander. On one occasion, she found feces in AIP's bed, and he denied anything had happened. Regarding his hygiene, she said he stopped shaving, would not brush his teeth, and on one occasion she found feces on his back, and he refused to shower or clean it off.
Around May 2019, Janet R. was helping AIP with his finances, including balancing his checkbook. Janet R. indicated checks would be unaccounted for and several bounced. AIP paid his taxes twice, resulting in a returned check.
After AIP had eye surgery, he accidentally put muscle rub on his eye instead of prescribed drops, and Janet R. had to assist him in flushing his eye out. She would accompany him to medical appointments, because AIP could not remember the information when he went alone.
Janet R. helped AIP pack and unpack his things and get situated at Woodbrook. Eventually, their relationship deteriorated, as AIP did not like Janet R. calling Woodbrook for updates about AIP.
Janet R. was present when AIP signed the title to transfer ownership of his truck when he sold it, after losing his license. Since then, he has continually forgotten he sold the truck.
AIP's Case
In opposition to the relief sought in the petition Judy F. testified, and AIP testified on his own behalf.
AIP testified he built the home in which he formerly resided about three years before moving to Woodbrook and spent about $75,000 on materials. A printout of the listing from when AIP put the property on the market in June of 2017 was entered into evidence, indicating the property was listed for $39,900. He testified he did not agree to Petitioner's sale of the home on his behalf for $5,000.
AIP denied getting lost while driving, having moldy food in the house, or having poor hygiene. He said he takes medications for blood pressure and his heart without any difficulty, admitting he might have forgotten to take them once or twice. His eye injury resulted from falling and slipping in the bushes, resulting in what he described as "very reduced sight in one eye." AIP believes he can still drive despite the vision issue, particularly when Judy F. helps him as a passenger, though he admitted Judy F. also only has vision out of one eye. AIP stated he is applying for reinstatement of his license, which has not yet been accomplished. He stated he does not need a guardian and does not want Petitioner to act as his agent under the Power of Attorney.
AIP denied putting muscle rub in his eye. He admitted to pointing his gun at Doreen D.'s dog but not at Doreen D. He said he was cleaning the gun when Doreen D. walked in, and he did not intend to cause any harm. He denied missing medical appointments or failing to properly take his medication. AIP acknowledged he chose to move to Woodbrook rather than stay in North Carolina, the two options Petitioner gave to him at that time. He admitted life is easier since he moved to Woodbrook, describing how staff cooks his meals, puts his medications out, does his laundry, and cleans his room. He acknowledged Petitioner manages his finances, arranging for the payment of his rent to Woodbrook.
AIP would like to leave Woodbrook with Judy F. and move into her home, or move west to Colorado, where Judy F.'s daughter lives. When asked what he would do if he and Judy F. lived there and a problem occurred, he responded that he did not know what would happen.
Judy F. testified that she resides at Woodbrook, sharing a room with AIP, whom she met at the facility in August 2019. She described having difficulty keeping up with her medication management prior to moving to Woodbrook. She indicated that when AIP drives, she tells him where he is and where he should be going. She acknowledged he does not have a valid driver's license, but she said it is safer for him to drive than her. Judy F. indicated she manages her own finances and pays her own bills, including for Woodbrook.
Judy F. testified she has learned more about her medication management since her admission to Woodbrook, though when pressed to further articulate what she has learned, she could not describe any of the pills she takes, when she takes them, or the underlying conditions requiring medication. On re-direct, she indicated she would follow a sheet that explains her medications and when to take them.
Judy F. testified that AIP takes care of himself, that she does not take care of him. She said she won't be managing AIP's medications if they move out of Woodbrook.
Judy F. testified that if they moved to her home, she has no concerns about their combined ability to take care of daily activities of living, including cooking, self-care, and finances. On cross-examination, Judy F. indicated that at the end of May, she would be moving out of Woodbrook, with or without AIP. She could not articulate a plan if they were to reside in her home and something were to happen to either one.
Law and Analysis
In considering this Article 81 petition for the appointment of a guardian, the Court must undertake a three-part analysis. First, the Court must examine whether AIP has limitations which render him unable to provide for his personal needs, including food, clothing, shelter, health care, safety, or to manage his property and financial affairs. MHL § 81.02. If such limitations exist, the Court must then consider whether the AIP has sufficient resources in place, either through efforts of the AIP, others, or statute, that adequately address those needs, obviating the need for a guardian. MHL §§ 81.02(a)(2), 81.03(a). Finally, if there are limitations that are not adequately addressed by available resources, the Court must consider who should be appointed as guardian, and the scope of the guardian's powers, consistent with the least restrictive alternative standard. MHL § 81.01 ; see also Matter of Kurt T. , 64 AD3d 819, 821-822 (3d Dept 2009) ; Matter of May Far C. , 61 AD3d 680, 680 (2d Dept 2009).
When the Court appoints a guardian based on a finding of the AIP's incapacity, the determination must be based on clear and convincing evidence and requires an additional two-part finding. The Court must find the AIP is likely to suffer harm because he is unable to provide for his personal needs and/or property management, and that the AIP does not "adequately understand and appreciate the nature and consequences of such inability." MHL § 81.02(b). In reaching its determination, the court must give primary consideration to the person's "functional level and functional limitations," including an assessment of the person's ability to manage the activities of daily living related to property management, such as money management and banking; his understanding and appreciation of the nature and consequences of any inability to manage these activities; his preferences, wishes, and values regarding management of these affairs; and the nature and extent of the person's property and finances, in the context of his ability to manage them. See Matter of Maher, 207 AD2d 133 (2d Dept 1994) ; MHL §§ 81.02(c) ; 81.03(h). The court must also assess, in pertinent part, "the extent of the demands placed on the person ... by the nature and extent of that person's property and financial affairs;" any mental disability and the prognosis of the disability; "any medications with which the person is being treated and their effect on the person's behavior, cognition and judgment;" and "other relevant facts and circumstances." MHL §§ 81.02 (c)(4) ; (d).
The mandate of Article 81 is that the Court must consider AIP's personal wishes, preferences and desires, allowing him to make the decisions affecting his life, to the extent he is able. MHL § 81.01 ; In re Matter of Cheryl B. K ., 45 Misc. 1227 (A) (Sup Ct, Broome County 2012). The Court must be careful not to unduly substitute its judgment, or that of others, for AIP's judgment. Id. ; Matter of Williams , 194 Misc 2d, 793 (Sup Ct, Suffolk County 2003). Article 81 cases are replete with references to respecting the AIP's wishes to the extent possible. Williams , supra ; Cheryl B. K., supra ; In re Pfluger , 181 Misc 2d, 294 (Sur Ct, New York County 1999). The Court should "approve any act as long as it falls within the range of reasonable actions for a given situation." Pfluger , supra , at 299. Whether to appoint a guardian is a matter of discretion requiring the Court to determine if the AIP actually needs one. Matter of Daniel TT , 39 AD3d 94 (3rd Dept. 2007).
The Court finds that Petitioner has met her burden, by clear and convincing evidence, that a guardian is necessary for the personal needs of AIP. MHL § 81.02(a). It's clear that AIP's needs are appropriately addressed through his residency at Woodbrook. He receives meals, gets his clothing laundered, room cleaned, and medication management through the staff at Woodbrook. However, Woodbrook is not a secure nursing facility and does not require any planning or establishment of services before residents are discharged; AIP can terminate his contract and leave any time he wishes. This reality shifts the focus of the Court's consideration: while AIP's needs are being properly met today while he resides at Woodbrook, would those same needs be met, or would he unduly be at risk to suffer harm due to an inability to meet his needs, if he were to leave the facility tomorrow? See Cheryl B. K., supra , at *4.
The Court was presented with clear and convincing evidence that prior to his admission to Woodbrook, when AIP was residing on his own, AIP was not able to appropriately attend to his personal needs. Various witnesses testified to first-hand observations that AIP was not feeding himself properly; had consistent issues with medication management; kept moldy food in the house; had issues maintaining his hygiene, including incidents of incontinence; and suffered ongoing memory issues. Janet R. credibly testified that she frequently found AIP had left the stovetop on, once resulting in smoldering, melted items left on top. Disturbingly, Doreen D. credibly described AIP pointing a gun directly at her when she entered his home, which supports the conclusion that AIP would pose a safety risk to himself and others if he were to leave Woodbrook and have to attend to his personal needs on his own. AIP's driver's license was revoked, though he continues to drive Judy F.'s vehicle, despite sometimes not knowing where he is or where he is going while driving. This is another serious way in which AIP continues to place himself and others at risk of harm. AIP's personal needs require the appointment of a guardian.
The Court also finds AIP's property management needs require the appointment of a guardian. Petitioner testified AIP required her assistance managing his finances, including selling his home and truck and arranging for rent payment to Woodbrook on AIP's behalf. Janet R. also testified to helping AIP with his finances and balancing his checkbook for him, due to his inability to do it himself.
AIP acknowledges his reliance on Petitioner's assistance with his finances, including the current payments to Woodbrook, yet consistently threatens to revoke her authority. He now questions or fails to recollect transactions she and others made on his behalf, including the sale of his truck, house, and construction equipment. There was no evidence presented that these transactions were fraudulent, or the proceeds not put to his benefit, the facts of which AIP does not demonstrate adequate awareness.
The Court finds AIP does not have sufficient available resources in place to adequately address his needs. He executed a Power of Attorney and Health Care Proxy but has expressed he wishes to revoke both to preclude Petitioner from making decisions on his behalf. The Power of Attorney document is springing in nature, meaning it does not take effect until a physician deems AIP incapacitated, so this document is not currently a resource in place to address his needs. Petitioner's ability to continue to assist AIP with his finances is in doubt. As discussed above, AIP's residency at Woodbrook is itself a resource that currently addresses many of his needs, but like the Power of Attorney and Health Care Proxy, AIP can terminate his contract and move out of Woodbrook at any point, ultimately making it an ineffective long-term resource to address his needs and limitations. By her own statements, Judy F. is not able to be an adequate resource for AIP.
Petitioner presented clear and convincing evidence that AIP does not adequately understand and appreciate the nature and consequences of his inability to provide for his personal and financial needs. MHL § 81.02(b). While AIP acknowledged the Woodbrook staff cooks his meals, puts his medications out, does his laundry, and cleans his room, and that Petitioner effectively manages his finances, AIP could not remember or flatly denied the information about his needs and limitations prior to his admission to Woodbrook. AIP testified he does not need assistance with any activities of daily life, particularly if he were to leave Woodbrook and reside with Judy F., as he has stated he would like to do. Yet neither he nor Judy F. could articulate a plan if anything adverse were to occur there.
Petitioner has been assisted by her husband and others in AIP's family to secure placement in an outstanding facility. This included financial management of the waiting period expense of the long-term care insurance policy AIP is fortunate to have in place. On balance, AIP appears unsatisfied with his current residential situation. That is his prerogative. The Court cannot and should not substitute its judgment for AIP. Cheryl B. K., supra , at *3. The Court cannot force AIP to maintain his current voluntary residential situation, nor can it give a guardian authority to so restrain him. Were that the limit of the analysis in this case, the Court would not find a guardian necessary. AIP is expressing choices that the Court finds would place him unduly at risk of harm and establish his lack of appreciation of those risks, which compels the appointment of a guardian. See Cheryl B. K., supra , at *4; compare Matter of S. B. (E. K.), 60 Misc 3d 735, 746 (Sup Ct, Chemung County 2018), aff'd as modified by Matter of Elizabeth T. T., 177 AD3d 20 (3d Dept 2019).
The Court includes AIP's ex-wife, in that group.
Though actions AIP takes may motivate recourse to appropriate public health authorities.
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Mr. Morahan presented the Court with authority showing a guardian may have the ability to choose where the incapacitated person lives, including selling the incapacitated person's home and having them placed at a facility. The cited Carol C. case involved the court allowing the guardian authority to sell the incapacitated person's home and move her to a more manageable condominium setting. In re Carol C. , 41 AD3d 474 (4th Dept 2007). In Marion A.W. , the court found that it was "not reasonable to maintain" the incapacitated person in the community and found she required placement at an assisted living nursing facility. In re Marion A.W. , 4 AD3d 432 (2d Dept 2004).
Those cases, however, do not include discussion of a facility that allows the incapacitated person to voluntarily move out of the facility whenever he chooses. Before the petition was filed, AIP voluntarily admitted himself to a facility that is not secure and permits him to terminate his contract at any time. Petitioner asks the Court to grant the guardian the authority to physically constrain AIP over his objection, which poses a unique issue. The Court is not prepared to expand the guardian's power to choose the incapacitated person's abode into the power to physically restrain the incapacitated person against his will at a non-secure facility.
The Court has now found that AIP is incapacitated, with all its attendant implications. Whether that finding will impact Woodbrook's decision to allow AIP to try to terminate his contract and leave the facility without appropriate discharge planning remains to be seen. The Guardian will have the discretion and authority to have AIP assessed by professionals to determine his appropriate level of care, and the place of abode that is most appropriate to suit his particular needs may ultimately require determination through that method. The Guardian may, in his discretion, pursue this course of action now, at the time AIP begins the process of terminating his contract to move out of the facility, or not at all. If there is a change in circumstances that warrants the Court reexamining the issue of AIP's abode, the Court will entertain such an application. Adult Protective Services remains another resource the Guardian or Woodbrook may choose to involve regarding the plan of Judy F. and AIP to reside in her home, as Ms. Sweeney indicated Woodbrook sometimes does contact Adult Protective Services when a resident seeks to move out.
In making this determination, the Court has taken into consideration AIP's personal wishes and preferences. The Court's decision constitutes the least restrictive alternative to meet AIP's needs and limitations.
Based on the foregoing, the Court grants the petition and will appoint a guardian of the person and property for AIP. The petition initially sought the appointment of Petitioner and her sister as co-guardians of AIP. In his post-hearing submission, Mr. Morahan indicates that since filing of the petition, the relationship between Petitioner and AIP has deteriorated, making Petitioner a less suitable option to work with AIP and assist him in making decisions. Instead, Mr. Morahan suggests Doreen D. would be best situated to act as guardian or, alternatively Petitioner's husband. While AIP has requested the petition be dismissed, in his reply summation Mr. Moore alternatively indicates that AIP would prefer Petitioner's husband, Wesley B., act as guardian if one is appointed. Both individuals have expressed a willingness to serve.
The Court will honor AIP's request and appoint Wesley B. as the Guardian of the Person and Property of AIP, with Doreen D. appointed as standby guardian if Wesley B. is unable or unwilling to continue as guardian in the future. MHL § 81.17. This appointment will be confirmed in a separate Order Appointing Guardian and Findings. The Court will also issue a separate Order revoking the Power of Attorney and all Health Care Proxy documents executed by AIP to date.
The Order Appointing Guardian and Findings will specify the powers granted to Wesley B. as the person and property guardian of AIP. The Court will grant Wesley B., as guardian, the personal needs power to choose AIP's place of abode. However, the power to choose AIP's abode cannot include the power to physically restrain him at a voluntary, non-secure assisted living facility like Woodbrook.
This Decision constitutes the Order of the Court.