In the Matter of the Application of T.K

DECISION AND ORDER AFTER HEARING FACTUAL BACKGROUND: On September 19, 2023, a Verified Petition was filed by T.K., son of K.K., seeking appointment of a Guardian for K.K.’s Personal Needs and Property Management under Mental Hygiene Law Article 81. The Petition alleged, inter alia, the following: “§10. Petitioner believes that [K.K.] is presently suffering from severe delusions which have caused him to engage in behavior which has put his safety and well-being at substantial risk of imminent harm, and that he continues to engage in self-destructive behavior as a result of these severe delusions which is likely to result in catastrophic financial loss. Upon information and belief, [K.K.] is unable or unwilling to accept that these delusions he believes to be real are in fact a fallacy, despite having been provided evidence by law enforcement agents as to their falsehood, and Petitioner does not believe that [K.K.] has received any psychiatric treatment to address these issues. Petitioner does not believe that [K.K.] has the ability to seek help to address these issues without the intervention of the Court. As a result of these delusions, [K.K.] has become the victim of a criminal “scam” perpetrated by an individual known as Eugene “Hugh” Austin (hereinafter referred to as “Hugh”) and his son, Brian Austin.” On September 20, 2023, this Court signed an Order to Show Cause, setting the matter down for a hearing on October 24, 2023 at 9:30am. The Order appointed Tara Scully, Esq. as Court Evaluator, and Mental Hygiene Legal Service as counsel to K.K., the Alleged Incapacitated Person (Hereafter “AIP”). On October 24, 2023, this Court conducted a hearing on the Verified Petition. The AIP was present, and was ably represented by Dan Barker, Esq. of Mental Hygiene Legal Service. Testimony was provided by T.K. (son of the AIP), L.K. (wife of the AIP), and Tara Scully, Esq. (court-appointed Court Evaluator). FINDINGS OF FACT TESTIMONY OF T.K. The Court finds the testimony of T.K. to be credible in all respects. T.K. (hereafter “TK”) is the son of the AIP. The AIP is 80 years old and is a retired advertising executive. He has been retired for approximately twelve (12) years. The AIP resides with his wife of more than fifty (50) years in their jointly owned house located [in] Port Jefferson, NY. The AIP has another son, C.K., who resides with his parents. In the last ten (10) years, the AIP’s mental condition has deteriorated. TK reports that the AIP has become more confused, stressed, agitated and that he consumes alcohol more regularly and in larger amounts than in the past. TK recounted that, particularly in the evening, the AIP has difficulty answering questions or keeping thoughts organized and it appears the AIP has difficulty fully understanding topics. Further, he tends to repeat thoughts and exhibits mental confusion. In 2009, the AIP was hospitalized while on vacation in Florida as the result of a “mental breakdown.” The AIP was thereafter placed on medication. The AIP was subsequently treated twice at Mather Hospital for similar mental health crises. Currently, TK does not believe the AIP is able to make informed decisions about his mental health or psychiatric care. The AIP executed a Health Care Proxy in 2005, designating L.K. as primary agent, and TK as alternate agent. The AIP executed a Power of Attorney in 2005, designating L.K. as agent. Significantly, TK reports that the AIP’s financial judgment has deteriorated in the last decade. TK is aware that the AIP had a fifteen (15) year-long business relationship with a person named Eugene Austin, who uses the nickname Hugh (hereafter “Hugh Austin”). Hugh Austin lives approximately 2 miles away from the AIP. In 2021, while TK was on vacation with the AIP, the AIP became obsessive and manic when he was locked out of his Capital One account. TK facilitated the AIP regaining access to the account. TK learned that T-Mobile had submitted a charge for $3,700, despite the fact that the AIP did not use T-Mobile for cell phone service. When questioned, the AIP explained the charge was to activate Hugh Austin’s family cell phones. TK further testified that the AIP provided a personal loan to Hugh Austin which remains unpaid. Following that vacation, TK and L.K. reviewed the previous two (2) years of bank statements from the AIP’s Capital One account. TK observed that, beginning in April of 2021, the Capital One account was regularly drained of its funds via use of smart-phone apps, including Cash App and PayPal. TK indicated that the AIP did not have a smart phone at the time these transactions took place. TK then questioned the AIP about these transactions, and the AIP explained that these transactions were used to keep Hugh Austin’s businesses open. Over the course of several months, these transactions totaled approximately $36,000. TK further recounted the details of multiple financial transactions between the AIP and Hugh Austin, wherein he calculated the total amount given by the AIP to Hugh Austin to be the staggering sum of approximately $2,500,000. Some of these conveyances involved promissory notes which remain unpaid. The AIP characterized these transfers as an “investment” to keep Hugh Austin’s businesses open, which he believed would result in the imminent return on investment of millions of dollars. To date, the AIP has not received any repayment or return on investment from Hugh Austin. TK researched Hugh Austin and learned that he and his son had been arrested and indicted on federal fraud charges. TK informed the AIP of the indictment. TK learned that Hugh Austin was indicted for fraud crimes against twenty (20) victims in excess of ten (10) million dollars and that the criminal matter is pending in the Southern District of New York. In fact, the AIP was interviewed by law enforcement agents regarding Hugh Austin, yet the AIP persists in his belief that Hugh Austin has done nothing wrong. Rather, the AIP believes that law enforcement is engaging in a witch hunt in order to destroy Hugh Austin’s businesses. The AIP continued to send money to Hugh Austin after learning about the federal investigations, arrest and indictment. TK reported that the AIP sent Hugh Austin money as recently as within the month prior to the instant hearing. Further corroborating the financial harm to the AIP and his wife, TK reported that the AIP’s home in Port Jefferson, which had been owned outright, now is encumbered with a home equity line of credit which was obtained in order to provide funds to Hugh Austin. The AIP pays approximately $1,450 a month to service that loan. Additionally, the AIP is delinquent in paying real estate taxes on his home. In sum, TK does not believe that the AIP has the cognitive ability to manage his finances. TK, who appears genuinely concerned for his father’s welfare, has offered to serve as the guardian for personal needs and property management and he not seeking compensation for his services as guardian. TESTIMONY OF L.K. This Court found the following testimony of L.K. to be entirely credible. L.K. (Hereafter “LK”) is the AIP’s wife of 51 years. They live together [in] Port Jefferson, NY 11777. LK testified that, in 2009, the AIP suffered a “nervous breakdown” and received mental health treatment. LK is not aware of precisely what medications the AIP is prescribed nor whether he is compliant with his medication administration. LK reported that the AIP has not received mental health treatment in the past year. LK has observed that the AIP appears extremely stressed, resulting in substantial weight loss and a lack of mental clarity. She further reported that the AIP’s communication skills have deteriorated to the point that she has difficulty understanding the AIP’s words. During the marriage, LK has been financially dependent upon the AIP. They are joint account holders on all bank accounts. According to LK, the AIP competently handled all bill-payment during the marriage until approximately 2 years ago. LK became aware that the AIP loaned the sum of $41,000 to Hugh Austin years ago, which required repayment within 2 weeks but that loan has never been repaid. Further, approximately two (2) years ago, LK discovered that the AIP paid a $3,500 TMobile bill for Hugh Austin. LK then obtained the previous six (6) months of bank statements from Capital One Bank and she discovered that the AIP had given Hugh Austin $47,000. LK also learned that there were several withdrawals from their shared account for bills related to Hugh Austin, including an electric bill for a residence in Florida related to the Austins. The AIP informed LK that he had given Hugh Austin’s children (John and Brandon) the banking information for the AIP’s account. The AIP further told LK that the AIP had asked the Austins to stop withdrawing money from the AIP’s account, but they continued to do so. When LK asked the AIP why he gave the Austins access to their bank accounts, the AIP explained that he did so to keep the Austin’s business going. However, she appropriately related that expenses for Hulu, Tubi and Paypal are not typical business expenses. Ultimately, the Capital One Bank account was drained of its funds, and it was closed. The total amount of funds removed from the Capital One Bank Account was approximately $47,000 over a period of 6 months. The AIP advised LK that the AIP has given a total of approximately $2 million to $2.5 million to Hugh Austin. The AIP obtained the money to give to Hugh Austin by selling stocks, and real property. Real property owned in part by LK and the AIP was sold for approximately one million dollars, a portion of which the AIP provided to Hugh Austin. The home LK and the AIP share has a home equity loan for $180,000. The AIP confirmed he gave $160,000 of that loan to Hugh Austin in 2015. Approximately a year ago, investigators from the Department of Homeland Security visited LK and the AIP at their home and informed them that Hugh Austin was the subject of a federal criminal investigations. The AIP continued to send money to Hugh Austin and his family after learning about the federal criminal investigations and LK confirmed that Hugh Austin has not repaid any of the money to the AIP. Although the AIP has executed a Power of Attorney, naming LK and TK as agents, LK believes that the AIP will continue to suffer financial harm in the absence of appointment of a guardian. LK recommends that if a guardian is appointed, it be her son TK. LK has requested that their financial adviser, Donald Hehir, not make further distributions of their assets ($400,000) to Hugh Austin and he has thus far honored that request. LK acknowledged that their assets are sufficient at this moment for food, cable, internet, and homeowners’ insurance. However, in the past few years, LK has indicated that a lack of money resulted in an inability to take a vacation to Florida. In response to her concerns, the AIP repeatedly blamed the lack of funds on their older son, rather than acknowledging that it was due to the majority of their life savings being conveyed to Hugh Austin as the result of undue influence and fraud. LK reports that the loss of financial assets has severely altered their standard of living and that as a result of a lack of funds, the family home cannot be repainted and damaged furniture cannot be replaced. RECEIVED IN EVIDENCE: COURT EVALUATOR REPORT OF TARA SCULLY, ESQ. The Court received in evidence the 18-page Court Evaluator Report generated by Tara Scully, Esq. pursuant to MHL §81.09(c)(5). Ms. Scully reports of the AIP that he: “appears to have and continue to be victimized and financially exploited by Hugh Austin. He has become a willing participant in this exploitation. He has already suffered great financial harm and will continue to be harmed if said dealings continue.” ( 11) The Court Evaluator further reports that “[h]is singular limitation is with regard to his continued provision of monies to the detriment of his personal financial security.” ( 12(vii)). To that end, Ms. Scully discussed with the AIP the large donations to Hugh Austin. Of this conversation with the AIP, Ms. Scully reports: “K.K.’s relationship with Hugh Aust[i]n is important to him. He said that he supports Hugh Aust[i]n financially and emotionally. K.K. is sure Hugh Aust[i]n knows what he is doing and that “eventually he will be very rich.” He is not sure when, but K.K. believes he will get back all the money he has provided to Hugh Aust[i]n and/or allowed him to spend” ( 23) and that “K.K. continues to see Hugh Aust[i]n frequently and still gives him small amounts of money on occasion.” ( 24) The Court Evaluator discussed with T.K. the several mental health issues experienced by the AIP. She reports of this discussion with T.K. as follows: “He noted that approximately 13 years ago, his father had a mental breakdown while his parents were away with friends in Florida. At which time, K.K. had called the police himself and ultimately ended up hospitalized briefly for Mental Health issues while in Florida. After returning home to New York, K.K. ended up being hospitalized at Mather Hospital in Port Jefferson, again for psychiatric issues, after an outburst at the office resulted in Hugh Aust[i]n calling 911 himself.” ( 26) The Court Evaluator also discussed with T.K. the extent of the financial exploitation of the AIP by Hugh Austin. She reports of this discussion with T.K. as follows: “While [TK] does not have an exact understanding of his father’s transactions with Hugh Aust[i]n, it is his belief that dad has lost between $2.5 and $2.8 million and that he has less than $800,000 remaining. In addition, K.K. is in significant credit card debt and has taken a home equity line of credit on his home, both liabilities resulting from K.K.’s dealings with Hugh Aust[i]n. In addition to the outright transfer of large amounts of money, K.K. allowed Hugh Aust[i]n the direct use of his debit card (bank account) and credit card. The financial support of Hugh Aust[i]n first came to light when [TK] inadvertently noticed a $3,500 charge to K.K.’s account for a cell phone provider K.K. does not use.” ( 27) The Court Evaluator discussed with C.K. (the AIP’s other son) both the extent of financial exploitation and mental health concerns regarding the AIP. Of the extent of the financial exploitation, she reports: “Your affiant interviewed K.K.’s eldest son [C.K.], a Navy reservist and HVAC specialist who resides with his parents following a messy divorce. [C.K.] also relayed information about his father’s mental breakdown years earlier. He verified that his father has known Hugh Aust[i]n for years and stated that Hugh Aust[i]n had lured his father into sham investments promising he would make $15-20 million dollars. He also noted that his father had provided Hugh Aust[i]n with his checking account number and routing number and Hugh Aust[i]n in turn used the funds to pay for his personal travel and living expenses. According to [C.K.], these expenses included trips to Las Vegas, charges to ESPN, Chewy, Google payments, and cash applications. K.K. defended the expenditures as being necessary to keep the company going.” ( 35) Of the Court Evaluator’s conversation with C.K. on the AIP’s resistance and refusal of the AIP to receive mental health treatment, she reports: “[C.K.] concurred that his father visits Hugh Aust[i]n’s home regularly, as if he is part of the legal team and that he responds quickly whenever Hugh Aust[i]n asks for something. [C.K.] further noted that K.K. has refused to get any mental health treatment or evaluation” ( 38) and that “[C.K.] described K.K. as having been ‘really smart and really quick’ and feels that his father has not quite been the same since his breakdown 14 years ago. He said that the family simply cannot wrap their heads around his father’s behavior and that he believes everything his father has is still going to Hugh Aust[i]n.” ( 39) The Court Evaluator discussed with L.K. (the AIP’s spouse) both the extent of financial exploitation and mental health concerns regarding the AIP. Of the extent of the financial exploitation, she reports: “Once she became aware that the couple’s money was being used to pay for the Aust[i]n’s living expenses, [L.K.] began reviewing their bank statements and noted large amounts of money leaving their Capital One bank account (which is closed now) to pay for things like rent, Hulu and other payees she did not recognize (PayPal, John Aust[i]n, Brandon Aust[i]n, etc.). When she confronted her husband about the expenditures, he initially admitted to having spent $47,000 on Hugh Aust[i]n. Shortly thereafter, [L.K.] said, K.K. admitted the number was closer to $2.5 million. Since then, [L.K.] said, her husband continues to say that he is working on deals.” ( 44) Of the Court Evaluator’s conversation with L.K. on the AIP’s mental health crises, she reports: “Like sons, [L.K.] recounted her husband’s breakdown in 2009 when the couple went to Florida with their friends. She described other behavior changes like K.K.’s inability to sit still, often being antsy, and seemingly manic. Though her ability to recall incidents chronologically was fuzzy, she made note of the hospitalization in Florida and the subsequent stays at Mather Hospital here in New York.” ( 43) The Court Evaluator recommended appointment of a temporary guardian for property management with limited powers to investigate the prior dealings between the AIP and Mr. Austin and to pursue potential recovery from Mr. Austin for previous financial exploitation, coupled with an injunction preventing the AIP from further acting to transfer funds to Mr. Austin or Mr. Austin’s agent to the AIP’s further detriment. In short, she finds significant functional limitations sufficient to constitute a necessity for a guardianship and opines that the least restrictive remedy to address this need would be a limited guardianship and injunction. TESTIMONY OF TARA SCULLY, ESQ. This Court found the following testimony of Tara Scully, Esq. to be credible. Tara Scully (Hereafter “TS”) is the Court-Appointed Court-Evaluator. During her investigation, TS met with the AIP, who informed her that he had given over $2 million to Hugh Austin and received absolutely no return on his investment from Mr. Austin. The AIP acknowledged that Hugh Austin is under house arrest, yet insisted that Hugh Austin has done nothing wrong and that he continues to meet with him and support him. The AIP maintains a belief that one day Hugh Austin will be very rich. TS reports that the AIP’s sole functional limitation relates to the exorbitant amount of money he has given to Hugh Austin, which has resulted in damage to the AIP’s family financial security. While there is a power of attorney, TS believes that it is insufficient to prevent harm to the AIP as it permits the AIP to continue to divert family resources to Hugh Austin, further damaging the AIP’s financial well-being. TS confirmed that the AIP’s real estate taxes are delinquent. During her investigation, TS met with the AIP’s eldest son, C.K. (Hereafter “CK”), who informed her that the AIP has been lured into an investment scam by Hugh Austin with promised returns of $15-$20 million dollars. CK reported that he observed that the AIP’s funds were used to pay for Hugh Austin’s personal expenses, including trips to Las Vegas, charges to ESPN, Chewy, Google payments, and Cash App payments. CK observed emails from Hugh Austin to the AIP where he acknowledged that he failed to re-pay money as promised and instead, asked for an additional $10,000 “investment” from the AIP. CK indicated that the alarming financial abuse began around the time of the AIP’s first mental health crisis fourteen to fifteen (14-15) years ago. TS reported that the AIP’s assets include: a joint Capital One account with less than $400; a joint Chase checking account with approximately $6,000; a joint brokerage account with approximately $387,000; a Penn Mutual qualified annuity retirement fund with approximately $365,000; the real property [in] Port Jefferson, NY with a value between $600,000 and $800,000; social security income of $2,967 per month; annuity income of $3,500 per month and 401K distribution income of $2,500 per month. TS believes that the AIP is vulnerable to financial abuse and that the AIP has an inability to admit or understand that the ongoing transfer of his funds to Hugh Austin are causing financial harm. TS believes that TK would be the best choice to serve as guardian of the AIP. CONCLUSIONS OF LAW: Based upon the credible evidence adduced at the within hearing, this Court finds that it has subject matter and personal jurisdiction of the AIP, who is a resident of the State of New York and that Suffolk County is the proper venue of this proceeding, in that the AIP’s residence is located [in] Port Jefferson, NY 11733. MHL §81.04(a)(1), MHL §81.05(a). The clear and convincing evidence before the Court establishes that the AIP is an incapacitated pursuant to MHL §81.02(a)(2), in that the AIP is likely to suffer harm because he is unable to manage his property management needs due to emotional and cognitive impairment which renders him susceptible to ongoing undue influence and fraud. Further, the AIP is unable to adequately appreciate and understand the nature and consequences of such inability. See MHL §81.02(b). In reaching this conclusion, the Court is giving primary consideration to the functional level and functional limitations of the AIP. MHL §81.02(c). FUNCTIONAL LIMITATION The AIP’s functional limitation relates to an emotional and cognitive impairment which has resulted in an irrational attachment to Hugh Austin and a delusional belief system wherein the AIP insists that one day he will receive many millions of dollars in return on his investment of approximately $2 to $2.5 million, despite proof that Hugh Austin and his son have been indicted and are being prosecuted for systematic fraud of twenty (20) victims. Hugh Austin has psychologically victimized the AIP for years, by convincing the AIP to provide money and support to Hugh Austin and his family, while consistently failing to effectuate any of the promised repayments to the AIP. Yet, the AIP believes that Hugh Austin is trustworthy. The bulk of the AIP’s family savings have been conveyed to Hugh Austin, resulting in financial distress and extreme psychological stress upon the AIP which is manifested by substantial weight loss, excessive consumption of alcohol and diminished abilities to concentrate and communicate. Whether or not Hugh Austin is found guilty in his upcoming federal fraud trial, it has been established by clear and convincing evidence that the AIP has suffered financial and emotional harm because of his susceptibility to undue influence and his delusional belief system. The Court finds that there is a very strong likelihood that the AIP will continue to engage in the self-harming activities described above in the absence of court intervention. Significantly, in reaching a determination that a person is incapacitated, the Court need not make a finding of complete incompetence, but only that the person has a particular incapacity which can be addressed by tailoring the guardianship powers to fit those needs (see, Matter of Eggleston, 303 AD2d 263, 757 NYS2d 24 [1st Dept 2003]; Mental Hygiene Law §81.02[a]). To determine incapacity, the court must undertake a detailed analysis of the physical, mental and financial health of the alleged incapacitated person. In the Matter of the Application of Bernard Kufeld, 23 Misc. 3d 1131(A) [Sup. Ct. Bronx 2009]. MHL §81.06; Matter of Edda Wogelt, 223 A.D. 2d 309, 314. The court must consider the totality of the circumstances including limitations in understanding and vulnerability to undue influence. In re Eccleston, 303 A.D.2d 263 citing MHL §81.06(1). In Matter of Ludlow B. McKay v. Lynette Crawford, Sup Ct, Suffolk County, April 15, 2011, J. Luft, Index No. 30006/10, Justice Luft addressed the question whether susceptibility to undue influence can result in a finding of incapacity within the meaning of Mental Hygiene Law Article 81. Under the unique facts and circumstances presented, Justice Luft found the Alleged Incapacitated Person to be incapacitated because her “functional limitations, made evident by her susceptibility to undue influence, reflect her inability to provide for personal needs and property management.” “The concept of undue influence does not readily lend itself to precise definition or description……it must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist.” Matter of Walther, 6NY2d 49, 188 NYS2d 168 [Ct. Appeals 1959]. Further, “undue influence is rarely proven by direct evidence; rather, it is usually proven by circumstantial evidence. Matter of Zoeller, (2009 NY Misc. LEXIS 6527, 2009 Slip Op 33142U [Surr. Ct. Nassau County]. The evidence in the within matter demonstrates that the AIP, while suffering mental health issues and cognitive decline, developed an emotional dependence upon Hugh Austin during retirement. This emotional dependence rendered the AIP unduly susceptible to a persistent pattern of fraud perpetuated by Hugh Austin and his family. This is abundantly clear because the AIP deviated from his normal pattern of making prudent financial decisions when he conveyed the majority of his financial holdings, persisted in a delusional belief that Hugh Austin was trustworthy despite proof he was indicted for defrauding twenty (20) other victims in a similar manner, became increasingly confused and unable to communicate effectively, lost weight and became dependent upon increased consumption of alcohol to cope. Additionally, the AIP has a history of psychiatric hospitalizations. In this case, the totality of the circumstances establish by clear and convincing evidence that the AIP suffers a functional limitation as a result of his diminished mental and emotional capacity such that he is susceptible to on-going undue influence and fraud. Having found that the AIP is incapacitated, pursuant to MHL §81.02(b), the Court must next address the necessity for a Guardianship under MHL §81.02(a), in view of the reliability of available resources, pursuant to MHL §81.02(a)(2). A Power of Attorney was executed by the AIP, naming LK as agent. However, that power of attorney does not restrict the ability of the AIP to continue to convey money and assets to Hugh Austin, thereby causing financial and emotional harm to himself. This Court has therefore evaluated the sufficiency of the extant Power of Attorney to provide for the property management of the AIP and finds it insufficient to adequately address the AIP’s needs. Rather, to prevent harm to K.K. by reason of his functional limitations and lack of understanding and appreciation of them it is necessary to appoint a Property Management Guardian, and the Court finds that this constitutes the least restrictive intervention that will address the needs of the AIP. The well-established rule is that appointment of a family member as a Guardian is generally preferable to the appointment of someone who is not a member of the family (see, e.g., Matter of Anonymous, 41 AD3d 346, 839 NYS2d 78 [1st Dept 2007], lv denied 9 NY3d 999, 849 NYS2d 25 [2007]; see also, Matter of Bertha W., 1 AD3d 603, 767 NYS2d 657 [2d Dept 2003]). As recited in Matter of Naquan S. (2 AD3d 531, 767 NYS2d 906 [2d Dept 2003]): “The case law in this state has firmly established that a stranger will not be appointed as Guardian of an incapacitated person ‘”unless it is impossible to find within the family circle, or their nominees, one who is qualified to serve” (Matter of Dietz, 247 App. Div. 366, 367, 287 N.Y.S. 392 [1936])’ (Matter of Klein, 145 A.D.2d 145, 538 N.Y.S.2d 274 [1989]; see also Matter of Gustafson, 308 A.D.2d 305, 764 N.Y.S.2d 46 [2003]; Matter of Robinson, 272 A.D.2d 176, 709 N.Y.S.2d 170 [2000]; Matter of Chase, 264 A.D.2d 330, 694 N.Y.S.2d 363 [1999]).” In this case, the Petitioner is the AIP’s son and has testified to the genuine affection and care Petitioner has for the AIP. Petitioner has offered himself as potential guardian of Personal Needs and Property Management for the AIP. Accordingly, the Court appoints Petitioner, T.K., as Property Management Guardian. The Court notes that the Petition also sought appointment of a Personal Needs Guardian, but it has not been established, by clear and convincing evidence, that K.K. has incapacities related to his personal needs sufficient to satisfy MHL §81.02. Additionally, it is noted that the AIP executed a Health Care Proxy in 2005 designating L.K. as primary agent, and TK as alternate agent, which is an alternate resource that constitutes a less-restrictive alternative to guardianship, should the need arise. FINDINGS PURSUANT TO MHL §81.15(c) Mental Hygiene Law §81.15(c) requires that “Where the petition requests the appointment of a guardian for property management for the person alleged to be incapacitated, and the court determines that the person is incapacitated and that the appointment of a guardian is necessary, the court shall make the following findings on the record:” 1. The type and amount of the property and financial resources of the person alleged to be incapacitated; 2. The person’s functional limitations which impair the person’s ability with respect to property management; 3. The person’s lack of understanding and appreciation of the nature and consequences of his or her functional limitations; 4. The likelihood that the person will suffer harm because of the person’s functional limitations and inability to adequately understand and appreciate the nature and consequences of such functional limitations; 5. Any additional findings that are required under section 81.21 of this article; 6. The necessity of the appointment of a guardian to prevent such harm; 7. If so, the specific powers of the guardian which constitute the least restrictive form of intervention consistent with the person’s functional limitations and the likelihood of harm because of the person’s inability to adequately understand and appreciate the nature and consequences of such functional limitations; 8. The duration of the appointment; and 9. Whether the incapacitated person should receive copies of the initial and annual report.” As described more fully above, this Court adjudicated a petition seeking appointment of a guardian for property management for the AIP and has determined that the AIP is incapacitated and such appointment is necessary. Therefore, this Court makes the following additional findings, pursuant to MHL §81.15. The record reveals that the property and financial resources of the AIP consist of the following: 1. A joint Capital One account with less than $400. 2. A joint Chase checking account with approximately $6,000. 3. A joint brokerage account with approximately $387,000. 4. A Penn Mutual qualified annuity retirement fund with approximately $365,000. 5. The real property [in] Port Jefferson, NY with a value between $600,000 and $800,000. 6. Social security income of $2,967 per month. 7. Annuity income of $3,500 per month. 8. 401K distribution income of $2,500 per month. The Property Management Guardian shall have the following powers: A. Marshal the assets and income of K.K., including the power to marshal accounts jointly in the name of K.K. and others, without the consent of the listed joint tenant(s) provided that K.K. Social Security number was used to report income or dividends from the accounts to tax or government authorities; to provide for K.K.’s maintenance and support; to pay his necessary and continuing living expenses, including his outstanding bills and financial obligations; B. Endorse, collect, negotiate, deposit, and withdraw Social Security and/or other annuity or benefit checks and/or negotiable instruments, and to apply to be appointed as the Representative Payee of K.K.’s Social Security and/or other private or governmental benefits, if any, with the authority to redirect the monthly income to any residential health care/treatment facility or transitional housing program in which K.K. resides; C. Arrange for the payment of personal care and assistance services for K.K.; D. Enter into contracts (including contracts for the sale of real property), provided that prior to the closing of title the Court approves the terms of sale, upon submission of a copy of the fully executed Contract of Sale and a written appraisal of the value of the property; E. Take all lawful actions with regard to K.K.’s mail, including the establishment of a post office box in the Guardian’s name, if necessary; F. Buy, sell, invest or reinvest and/or assign securities; G. Sign and file income tax returns and all other tax documents for any and all tax obligations, and to appear before Federal, State and local tax authorities on all claims, litigation, settlements, and other tax-related matters; H. Claim, negotiate, obtain, and settle claims and actions for government entitlements and benefits of all kinds with all government administrations and agencies; I. Prosecute and defend civil proceedings, including administrative proceedings, and settle and compromise all matters related to such proceedings; J. Convey or release contingent and expectant interests in property, including any right of survivorship incidental to joint tenancy or tenancy by the entirety, subject to the prior approval of the Court in each such instance; K. Exercise rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value, subject to the prior approval of the Court in each instance; L. Retain attorneys, accountants, and investment counsel regarding the property and affairs of K.K., and to pay same, subject to the prior approval of the Court; M. Establish and fund irrevocable a prepaid funeral trust; N. Pay bills after death to the extent that such bills relate to administrative expenses associated with this guardianship proceeding, including the payment of any Courtappointees, and bills relating to reasonable funeral expenses out of any funds remaining in the guardianship account at death, to the extent that a prepaid funeral plan, if any, is insufficient to do so; O. Obtain and collect from financial institutions and government agencies any and all documentation required to secure approval of any Medicaid application filed on behalf of K.K.; to obtain any and all information from the appropriate Department of Social Services and/or New York State Department of Health with regard to such Medicaid application; and to attend, in person or by authorized representative, any conference or “face-to-face” interview at the appropriate Department of Social Services and any New York State Department of Health “Fair Hearing”; P. Implement prudent Medicaid planning on behalf of K.K., to the extent not already done; Q. Authorize access to and release of confidential and financial records, reports, and statements of K.K.; R. Apply for government and private benefits on behalf of K.K. and to re-certify for same, including but not limited to benefits through Medicaid assistance, Veterans Administration and/or the Social Security Administration; and to assist with any and all pending applications for same, including all claims, submission of applications and reapplications, fair hearings, appeals, recertifications and processing of hardship waiver(s); S. Investigate into the circumstances of the disposition and any transfer(s) of K.K.’s assets and income pursuant to Mental Hygiene Law §81.43 and to commence a proceeding for the return of K.K.’s assets and income if said transfers appear to the Guardian to be actionable pursuant to Mental Hygiene Law §§81.29 and/or 81.43 or if said transfers adversely affect K.K.’s eligibility for government or private benefits; and, if it is deemed appropriate, refer this matter to the District Attorney’s office, Office of the Inspector General and/or appropriate local, state or federal governmental agency; and T. Investigate into the circumstances surrounding K.K.’s ownership interest in real property […] located [in] Port Jefferson, New York 11777, and take action to prudently manage same, and, if deemed appropriate and in the best interests of K.K., make appropriate application to this Court for approval to sell K.K.’s ownership interest. These powers constitute the least restrictive form of intervention consistent with this Court’s findings after the hearing.  The duration of the guardianship shall be indefinite. Within thirty days of the date of this Decision and Order, Petitioner is directed to prepare an Order and Judgment on ten-day’s notice to all participants. In addition to the above-described findings and appointment, said Order and Judgment shall include the following provisions: The Guardian shall be required to file a bond in the sum of $1 million dollars pursuant to MHL §81.25. The proposed Guardian shall submit the bond for judicial approval, and the designation of the Clerk to receive process and consent to act, and the proposed commission, within fifteen days from the date of the signing of this order and judgment. At the same time the proposed Guardian shall also serve upon the Court Examiner appointed herein copies of all the foregoing; and The Court Examiner shall notify the Court immediately if such bond, the designation of the Clerk to receive process and consent to act, or the proposed commission, are not timely received; and The failure of the proposed Guardian to file a bond, the designation of the Clerk to receive process and consent to act, or the proposed commission in a timely manner may serve as the basis for removal of the proposed Guardian and appointment of a different Guardian; and Pursuant to Section 81.27 of the Mental Hygiene Law, within five days after the Guardian has filed the above bond and designation, a commission shall be issued by the Clerk of the Court stating the title of this proceeding and the name, address and telephone number of K.K., the person in need of a guardian; the name, address and telephone number of T.K., the Guardian for Property Management and Personal Needs and the specific powers of the Guardian for Property Management and Personal Needs; and The Guardian file a certified copy of the commission with the Guardianship Clerk of the Court, and serve a copy of such commission on the Court Examiner within five days after its issuance; and The Court Examiner, upon receipt of a certified copy of the commission, shall thereupon report to the Court whether the certified commission accurately reflects the authority granted to the Guardian in the order and judgment; and The duration of the Guardianship shall be indefinite; and The authority of the property management Guardian shall extend to all of the property of (the incapacitated person), both real and personal; and All persons are hereby directed and commanded to deliver to the property management Guardian upon demand and presentation of a certified copy of the commission, all personal property of (the incapacitated person) of every kind and nature which may be in their possession or under their control; and The Guardian shall ensure that all bank account(s) and/or all brokerage accounts, and/or all trust accounts to be established hereunder shall provide duplicate monthly statements with copies of cancelled checks in imaged formats to the court examiner assigned herein. Proof of compliance with the foregoing shall be included as part of the 90 day initial report. It shall be the obligation of the Court Examiner to verify that this provision has been complied with by the Guardian and to immediately report any non-compliance to the Court; and With respect to the duty to visit the incapacitated person, irrespective of whether the Guardian resides with the incapacitated person, the Guardian shall submit to the Court Examiner, together with the annual report, proof of visitation and shall include a brief update on (the incapacitated person’s) condition; and The Guardian shall complete the guardianship training course in compliance with Mental Hygiene Law §81.39 before the time required for the filing of the initial report; and The Court Examiner shall promptly notify the Court if proof of completion of the training course is not provided with the initial report; and Jean Kalata, Esq., with offices located at Jean Kalata, 131 FRONT ST # 394, GREENPORT, NY 11944-1644, 631-921-9913, is appointed as the Court Examiner herein; and Pursuant to Section 81.30 of the Mental Hygiene Law no later than ninety days after the issuance of the commission to the Guardian, the Guardian shall file with the Court an initial report in a form prescribed by the Court; and At the time of such filing of the initial report, the Guardian send a copy of the initial report to the Court Examiner, the Court Evaluator, and [if the incapacitated person resides in a facility] the chief executive officer of [that facility], and [if the incapacitated person resides in a mental hygiene facility] the Mental Hygiene Legal Service of the judicial department in which the residence is located; and The Guardian send a copy of the initial report to (the incapacitated person) by mail; and Pursuant to Section 81.31 of the Mental Hygiene Law, in the month of May during the pendency of the guardianship, the Guardian shall file with the Court annual reports in a form prescribed by the Court; and At the time of such filing of the annual reports, the Guardian serve a copy of the annual report upon the Court Examiner and [if the incapacitated person resides in a facility,] the chief executive officer of that facility and [if the incapacitated person resides in a mental hygiene facility] to the Mental Hygiene Legal Service of the judicial department [in which the residence is located or where venue of the guardianship proceeding was located]; and The Guardian send copies of the annual reports to (the incapacitated person) by mail; and The Guardian has waived any compensation for services for guardianship; and The Order and Judgment shall contain paragraphs for compensation to the Court Evaluator for services and disbursements rendered, to be filled out by the Court upon the receipt and consideration of affirmations of service; and The Order and Judgment shall contain paragraphs for compensation to the Counsel for K.K. for services and disbursements rendered, to be filled out by the Court upon the receipt and consideration of affirmations of service; and The Order and Judgment shall contain paragraphs for compensation to any other Court Appointees for services and disbursements rendered, to be filled out by the Court upon the receipt and consideration of affirmations of service; and Notice of future proceedings in this matter shall be given to the Court Examiner, the Guardian, the person with whom the incapacitated person is residing (identified by name, if known) and all presumptive distributees (identified by name, if known, with address) and known prospective beneficiaries of the incapacitated person’s estate (identified by name, if known, with address); and Any and all persons identified as interested parties in the original Order to Show Cause or subsequently identified as an interested party by the Court shall receive notice of the incapacitated person’s death, the intended disposition of the remains of the decedent, funeral arrangements and the final resting place of the incapacitated person when that information is known or can be reasonably ascertained by the guardian. This directive shall in no way preclude the guardian from providing such information to any and all other persons that they deem appropriate; and Any and all persons identified as interested parties in the original Order to Show Cause or subsequently identified as an interested party by the Court shall receive notice of the incapacitated person’s transfer to a medical facility. This directive shall in no way preclude the guardian from providing such information to any and all other persons that they deem appropriate; and In the event the Temporary Guardian marshaled assets or collected income on behalf of the incapacitated person then within forty-five days after the date of this order the Temporary Guardian file their final report and account of their proceedings as Temporary Guardian for the incapacitated person, covering the period from the date of their qualification as Temporary Guardian to the date of the filing of the account; and The Temporary Guardian cause their account to be judicially settled, and that within fortyfive days after the date of this order a notice of motion for the settlement thereof, together with a copy of this order, be served either personally or by mail upon all presumptive distributees, any known beneficiaries, and all known creditors of the incapacitated person, the Court Examiner and any other parties that are entitled to notice of “further proceedings” in this matter as directed in the order and judgment or otherwise, at least twenty days prior to the return date of said motion; and To allow the Court to monitor compliance with the requirements of filing a final report and account and moving for judicial settlement of the final account, (Temporary Guardian)., appear for a conference before the Court Attorney Referee, Jacqueline A. Watters, Esq., [(631) 740-3895] on a date to be assigned at the Supreme Court, 400 Carleton Avenue, Central Islip, New York, Courtroom S-24. The conference may be cancelled upon confirmation that a motion for judicial settlement of the final account has been made; and Counsel for the petitioner, the Guardian or Co-Guardians, and the Court Examiner are directed to appear for a conference before the undersigned, or with the Guardianship Referee, Jeffrey T. Grabowski, Esq., [(631) 740-3894] on a date to be assigned at the Supreme Court, 400 Carleton Avenue, Central Islip, New York, to monitor compliance with the Court’s directives in its decision herein, unless prior to that date the conference is cancelled; and Counsel for the incapacitated person is directed to personally deliver to the incapacitated person a copy of this order and judgment and explain it to him in a manner which the incapacitated person can reasonably be expected to understand as required by Mental Hygiene Law §81.16(e)); and The Guardian(s) and Court Examiner appointed herein shall be granted access to the New York State Courts Electronic Filing System (NYSCEF) for the purpose of viewing and/or filing any, and all, electronic records related to this matter without the need for further Order of the Court. Such access shall also extend to any future appointees assigned pursuant to Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), and non-part 36 appointees, as may be appointed by the Court throughout the duration of this matter; and The information available to the Court demonstrates that the temporary guardian, now permanent guardian, needs to continue with the powers previously granted in the Order to Show Cause until the final order and judgment is signed. Accordingly, the powers appointed to the temporary guardian shall continue and remain in full force and effect until the execution of the final order and judgment. Dated: January 4, 2024