PROCEDURAL BACKGROUND An order to show cause was signed on November 13, 2020, directing that S.Z., an alleged incapacitated person (“AIP”), show cause why a Guardian of the Person and Property should not be appointed for her, and granting other relief set forth therein. Mental Hygiene Legal Service (3rd Dept.) was appointed as Court Evaluator to investigate the claims made in the petition, determine whether counsel should be appointed by the Court, and report to the Court the functional abilities and limitations of the AIP in this proceeding. The order to show cause set the hearing for December 8, 2020 and required personal service of the petition and order to show cause by November 24, 2020. John Cadore, Esq., original counsel for the Petitioner — daughter of the AIP, filed a supplemental petition verified on November 9, 2020. In advance of the original hearing date, Mr. Cadore was unable to have AIP personally served as directed by the original order to show cause. On December 4, 2020, Scott Moore, Esq., appeared for AIP’s husband (Mr. Z) and a person on notice of the proceedings. The Court issued an amended order to show cause on December 17, 2020, setting a new hearing date of January 8, 2021 and requiring personal service on S.Z. on or before December 25, 2020. The Court issued an order directing substituted service of the petition and order to show cause on S.Z. by order dated January 20, 2021. The same order also set the hearing in this matter for February 19, 2021. On February 16, 2021, Mr. Cadore, on behalf of Petitioner, filed an affidavit alleging that Petitioner met with Scott D. Moore, Esq., in September 2020. Mr. Moore filed a letter dated February 17, 2021, confirming he met with Petitioner in a consultation and her information was not entered into his conflicts checks software. By letter dated February 18, 2021, Mr. Moore confirmed his withdrawal as counsel for Mr. Z and requested, on Mr. Z’s behalf, an adjournment of the hearing in this matter. By order dated February 18, 2021, the Court adjourned the hearing to March 23, 2021. Mr. Z retained Greg S. Catarella, Esq. to represent him in this proceeding. Mr. Catarella filed a consent to substitution of attorney on March 18, 2021 and a cross-petition seeking dismissal of the petition on March 22, 2021. With Mr. Catarella’s retention as counsel, the Court adjourned the hearing to March 30, 2021. The hearing convened on March 30, 2021, at which time Mental Hygiene Legal Service (3rd Dept.) (MHLS), Aaron Eberle, Esq. appeared as Court Evaluator; the presence of S.Z. was dispensed with by the Court for good cause shown; Petitioner, and John Cadore, Esq., then-attorney for the petitioner, appeared; and Mr. Z, cross-petitioner herein, appeared and Greg S. Catarella, Esq, attorney for the cross-petitioner, appeared. The hearing commenced, and the Court Evaluator gave his report as required by law, with the Court accepting in evidence the Evaluator’s original report dated December 15, 2020 and two letter updates, dated January 5, 2021 and March 23, 2021. In the middle of Mr. Cadore questioning her on direct examination, Petitioner indicated she wanted to obtain new counsel to represent her in this matter. After briefly conferencing with the attorneys, the Court adjourned the hearing to provide Petitioner the opportunity to obtain new counsel. Petitioner was given until April 13, 2021 for her new counsel to file a substitution of attorney. None was received and the Court set an adjourned date of April 22, 2021 for the hearing to continue. On April 19, 2021, Ronald Benjamin, Esq. filed a substitution of attorney for Petitioner. The Court reconvened the hearing on April 22, 2021, at which time Ronald Benjamin, Esq. appeared with Petitioner; Greg S. Catarella, Esq. appeared with Mr. Z; and Aaron Eberle, Esq., Court Evaluator, appeared. The Court granted Mr. Benjamin’s request for an adjournment to prepare for presentation of Petitioner’s case-in-chief and issued an order adjourning the hearing to May 4, 2021. On May 3, 2021, the Court received a letter filed by Mr. Benjamin, requesting another adjournment of the hearing due to a medical emergency he had on April 26, 2021. The hearing was adjourned to May 18, 2021, at which time it continued via Microsoft Teams and was completed. At the conclusion of the Petitioner’s case, Mr. Catarella made a motion to dismiss the petition on the grounds the Petitioner failed to meet her burden of proving the need for a guardian by clear and convincing evidence. The Court reserved its decision and counsel submitted written summations. Mr. Catarella also submitted a reply to Mr. Benjamin’s summation. Upon review and consideration of the petition, testimony, written summations, and controlling authority, the Court now issues this Decision. THE HEARING Aaron Eberle, Esq. testified in support of the Court Evaluator’s report and updates, all of which were received in evidence. Mr. Eberle and Hollie S. Levine, Esq. (formerly of MHLS), spoke with: AIP, Petitioner, Mr. Z, S. Z. (son of AIP), staff at the Facility, Dr. Carl Charnetski, and Richard Keyser in investigating the matter. Mr. Keyser is the attorney who drafted a power of attorney executed by the AIP in 2015, naming Mr. Z as her agent and attorney-in-fact. Mr. Keyser did not remember the specifics of the interaction leading to the AIP’s execution of the document, but he explained his typical process for drafting and executing a power of attorney and confirmed that in his 40 years of practice, he has encountered situations where he stopped the process because he questioned the client’s capacity to sign the document or suspected his client was acting under undue influence. Because he completed the process with the AIP, he was comfortable that those concerns were not present when the AIP executed her power of attorney. A copy of the power of attorney was included as an attachment to the original December 15, 2020 report. In his conversation with the Court Evaluator, Dr. Carl Charnetski, the AIP’s long-time general doctor, confirmed the AIP would have had the capacity to execute the power of attorney in 2015. He also reported Mr. Z always appeared caring in his treatment of the AIP, and cared for the AIP in their home for as long as he could before her placement at St. Joseph’s Hospital’s Skill Nursing Facility (the “Facility”), where she currently resides. In the report and updates, the Court Evaluator consistently recommended that the Court deny the request for the appointment of a guardian based on the existence of the AIP’s valid power of attorney, which has been used to meet her needs. In support of the Petitioner’s case, Dr. Carl Charnetski, Mary Ellen Hanley, and Petitioner testified. Petitioner also called Mr. Z to testify. Dr. Carl Charnetski is a licensed physician who has practiced in New York since 2007. He was the AIP’s treating physician from 2012 until October 2020. He has experience treating geriatric patients and over the course of his career has made recommendations about the level of care in which patients should live, based on a patient’s ability to care for herself, meet her needs in her home, and rely on the help of family, friends, and aides. Dr. Charnetski was not involved in the decision to place the AIP at the Facility. The Facility provides general services for individuals who cannot safely reside in the community. Dr. Charnetski described the care at the Facility as “adequate” for addressing what he understands are the AIP’s needs. Dr. Charnetski testified that generally an individual with dementia might fare better with being kept active and being stimulated by contact with loved ones, rather than remaining placed in a skilled-nursing setting such as the Facility. He testified that he has spoken with Petitioner, and she represented to him that she can provide 24-hour per day, seven days per week care for the AIP. On cross-examination, he admitted that he only had one conversation with Petitioner and did not take any action to confirm whether it would be suitable for the AIP to be discharged to Petitioner’s care and home. Dr. Charnetski confirmed that whether any discharge plan is deemed safe is within the purview of the Facility. Mary Ellen Hanley is a personal friend of Petitioner and has worked as a nurse in longterm care facilities for 12 years. In this capacity, she has also coordinated constant care for individuals who want to live in their homes or with family or friends. Petitioner asked Ms. Hanley to evaluate her as a professional caregiver. Ms. Hanley walked through Petitioner’s home and did not note any concerns if the AIP were to be discharged to Petitioner’s care. On cross-examination, Ms. Hanley indicated she has not reviewed the AIP’s care plan and her information about the AIP’s needs is not based on her own knowledge but on what Petitioner communicated to her. Petitioner testified that she is seeking guardianship of the AIP because she would like to give the AIP a home rather than allow her to be “institutionalized.” She testified that she could provide the same care for the AIP that the Facility provides. She does not have any monetary interest in the guardianship. She converted her open living and dining room area into an area that would be more conducive to the AIP being able to ambulate. A contractor is in the process of giving her an estimate for installing a ramp on the side of her home. She would install a bed alarm and shower seats and would enlist services like the Peace of Mind social adult program and Catholic Charities. She indicated she would spend 24 hours every day watching the AIP and could engage services from home health aides if needed. She is not currently employed and is in the process of flipping a house. She described the time commitment for the house flip as minimal. On cross-examination, Petitioner indicated she was previously discharged in bankruptcy. Her daughter owns the home in which she resides, so she has permission to make modifications to the home. No one resides in the home with Petitioner. She would not charge rent for the AIP to live in the home. She currently receives $744 per week as an unemployment benefit. She was unable to articulate how much it might cost to hire any home health aides to stay with the AIP during times when Petitioner would have to leave the home She has $65,000 set aside but was unaware how long that might last if she had to hire aides. She claimed she alone could lift the AIP to get her in and out of bed. Petitioner has not yet received the Covid-19 vaccine, though she articulated that her main concern about her mother remaining at the Facility is the risk of Covid-19. She would not wear a mask in her home, claiming she never really leaves the house. If Petitioner were granted guardianship, she would allow Mr. Z and her brother S. Z. to visit the AIP at her home, but not other sibling. LEGAL STANDARD In considering this Article 81 petition for the appointment of a guardian, the Court must undertake a multi-step analysis. The Court must examine whether AIP has limitations which render her unable to provide for her personal needs, including food, clothing, shelter, health care, safety, or to manage her 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). A power of attorney can constitute a sufficient resource to address an AIP’s needs and warrant the denial of a request for the appointment of a guardian, so long as the AIP had the capacity to execute the power of attorney or the duly named agent has not engaged in impropriety or negligence in using the power of attorney to meet the AIP’s needs. See, e.g., Matter of Kurt T., 64 AD3d 819, 821-22 (3d Dept 2009); Matter of May Far C., 61 AD3d 680 (2d Dept 2009); Matter of S.B. (E.K.), 60 Misc 3d 735 (Sup Ct, Chemung County 2018). To support the appointment of a guardian, the petitioner must prove the need for a guardian by clear and convincing evidence. MHL §81.12(a). In an Article 81 proceeding, the AIP enjoys the doctor-patient privilege that precludes admission of her medical records or information into evidence unless she has affirmatively placed her medical condition at issue. Matter of S.B., supra at 741 (citing Matter of Rosa B.S. [William M.B.], 1 AD3d 355, 356 [2d Dept 2003].) FINDINGS OF FACT AND CONCLUSIONS OF LAW The Court makes the following findings based on the clear and convincing evidence proffered at the hearing. S.Z. is a 74-year old woman who was placed in the Facility in October 2020, and she currently resides there today. She requires constant supervision and assistance with all activities of daily living. She previously lived with her husband, who was providing care for the AIP in their home until she required a greater level of care than he felt he could provide. The AIP’s daily needs are being met at the Facility. AIP’s husband is the agent under the AIP’s power of attorney, which she executed in 2015. The AIP did not lack capacity at the time she executed that document, and it is valid and operative to provide for the AIP’s needs today. AIP’s husband is also the primary surrogate decision maker for the AIP pursuant to the Family Health Care Decisions Act. Public Health Law §2994-d. Petitioner is the AIP’s daughter and would like the AIP to be discharged to her home. There was no evidence presented that any staff at the Facility has deemed the AIP’s release to Petitioner’s care and home a safe discharge plan for her. The Facility retains the ultimate decision as to whether such a plan would be deemed a safe and suitable discharge for the AIP. Petitioner does not have a specific plan for hiring and paying for home health aides if the AIP were discharged to her care, which would be a likely requirement considering the AIP’s current needs and level of care. The Court finds that the AIP has limitations that impact her ability to provide independently for her activities of daily living. The fundamental question presented in this case is whether the AIP has sufficient resources in place to address those limitations. The AIP executed a valid power of attorney in 2015 and her agent — her husband — chose to place her at the Facility, to get the care she needed, and he admittedly could not provide. There was no evidence that the decision to place her at the Facility was inappropriate, or that power of attorney is invalid or has been abused or used inappropriately. The AIP’s long-time physician, Dr. Charnetski, confirmed that Mr. Z cared for the AIP in their home as long as he possible could before placing her at the Facility. Petitioner has effectively articulated that she disagrees with the decision her father made with respect to AIP’s care and placement. Petitioner’s main basis for seeking guardianship of her mother is that the AIP would be better served by discharge to her home rather than continuing to reside at the Facility. While this might be true, the argument is speculative at best. The AIP’s primary care physician testified that the care at the Facility is adequate for her needs. The petitioner presented no evidence that her mother has not received appropriate care at the Facility, or that the Facility would deem a discharge to Petitioner’s home safe and appropriate for the AIP. The petitioner did not offer clear and convincing evidence that she is in fact in a position to have her mother discharged to her care. Petitioner did not present any corroborating testimony about her home and was unable to fully articulate a plan for how she would provide 24-hour per day, 7-days per week care for her mother if she were to be discharged from the Facility and placed in her home. With the AIP currently placed at the Facility, it is ultimately a medical decision to be made by the Facility as to whether any discharge plan would be safe and meet the needs of the AIP. The Court declines to substitute its own judgment for that of the providers at the Facility, or for AIP’s husband and agent under power of attorney, who made the current placement decision. Petitioner’s counsel has advanced the argument that the Court should substitute its judgment for the AIP and grant access to and then consider the AIP’s medical records and information in deciding whether to appoint a guardian. The AIP enjoys an absolute right to doctor-patient confidentiality unless the AIP waives the privilege or places her medical condition at controversy. Matter of S.B., supra at 741 (citing Matter of Rosa B.-S. [William M.B.], 1 AD3d 355, 356 [2d Dept 2003].) The AIP was found to be unable to meaningfully participate at the hearing; thus, it is impossible for the AIP to waive the privilege or place her condition at issue. It is inappropriate and legally unsupported for the Court to circumvent the privilege and substitute its judgment as to whether the AIP would have wanted to waive the privilege or place her condition at issue, as argued by petitioner’s counsel. The Court finds the AIP has sufficient resources in place to address her limitations, through her placement at the Facility, the existing power of attorney and the Family Health Care Decisions Act. MHL §§81.02(a)(2), 81.03(a). Based on this finding, the Court declines to appoint a guardian for the AIP. In so finding, the Court gives great weight not only to the testimony provided at the hearing but also the report and updates provided by the Court Evaluator, who ultimately recommended the petition be denied because the AIP has sufficient resources in place to address her limitations. In furtherance of this Decision, it is hereby ORDERED, that the request for the appointment of a guardian of the person and/or property of S.Z. is DENIED, and the petition of Petitioner is DISMISSED. Dated: July 19, 2021
