| Matter of Aida C. |
| 2009 NY Slip Op 06897 [66 AD3d 1344] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Rosanna E. Heckl et al., Respondents-Appellants,for the Appointment of a Personal Needs and Property Management Guardian of Aida C., anAlleged Incapacitated Person, Appellant-Respondent. Permclip Products Corp.,Intervenor-Respondent. |
—[*1] Lippes Mathias Wexler Friedman LLP, Buffalo (Kevin J. Cross of counsel), forpetitioners-respondents-appellants.
Appeal and cross appeal from an order and judgment (one paper) of the Supreme Court, ErieCounty (Penny M. Wolfgang, J.), entered October 1, 2008 in a proceeding pursuant to MentalHygiene Law article 81. The order and judgment, inter alia, appointed guardians of the personand property of the alleged incapacitated person.
It is hereby ordered that the order and judgment so appealed from is unanimously modifiedon the law by vacating that part appointing Daniel Walsh coguardian of the person of Aida C.and as modified the order and judgment is affirmed without costs.
Memorandum: The alleged incapacitated person, Aida C. (hereafter, IP) appeals andpetitioners cross-appeal from an order and judgment appointing the IP's personal assistant andgranddaughter as coguardians of the IP's person and the corporate counsel ofintervenor-respondent, Permclip Products Corp. (Permclip), as guardian of the IP's property inthis proceeding pursuant to Mental Hygiene Law article 81. As we noted in a prior decisionconcerning this proceeding, the IP is the mother of petitioners, as well as the president and soleshareholder of Permclip (Matter of AidaC., 44 AD3d 110, 112 [2007]). In an amended petition, petitioners removed themselvesfrom consideration as guardians of the IP's property and, during the pendency of this proceeding,they proposed that the IP's granddaughter, rather than any of the petitioners, be named guardianof the IP's person inasmuch as petitioners and the IP have been estranged since 2005.
Contrary to the contention of the IP on her appeal, Supreme Court properly denied hermotion to dismiss the amended petition and determined that she is incapacitated and requires aguardian to provide for her personal needs as well as a guardian to manage her property(see [*2]Mental Hygiene Law § 81.15 [b], [c]). Wereject the further contention of the IP that the court erred in appointing her granddaughter as acoguardian of her person. We conclude with respect to petitioners' cross appeal, however, thatthe court erred in appointing the IP's personal assistant as a coguardian of the IP's person, and wetherefore modify the order and judgment accordingly.Pursuant to Mental Hygiene Law § 81.19 (d), in appointing a guardian the courtshould consider, inter alia, the social relationship between the IP and the proposed guardian(§ 81.19 [d] [2]); the care provided to the IP at the time of the proceeding (§ 81.19[d] [3]); the educational and other relevant experience of the proposed guardian (§ 81.19[d] [5]); the unique requirements of the IP (§ 81.19 [d] [7]); and the existence of anyconflicts of interest between the IP and the proposed guardian (§ 81.19 [d] [8]). Withrespect to the IP's granddaughter, the record establishes that, although the IP mistakenly believesthat she does not have grandchildren, the IP and her granddaughter had shared a very close andloving relationship. Although the IP was not aware that she was related to her granddaughter, sheenjoyed an evening with her granddaughter and other family members at a restaurant, and the IPinvited her granddaughter to visit her at her home. In addition, the record establishes that the IP'sgranddaughter has experience in caring for two elderly women and has taken a training coursewith respect to the duties and responsibilities of a guardian of the person. The IP's granddaughtertestified at the hearing on the amended petition that she is willing to work with the IP's personalassistant and recognizes her grandmother's dependence upon him. We thus conclude that there isno basis upon which to disturb the court's appointment of the IP's granddaughter as coguardianof the IP's person (see Matter ofAnonymous, 41 AD3d 346 [2007]).
As noted, however, we agree with petitioners that the court erred in appointing the IP'spersonal assistant as coguardian of the IP's person, inasmuch as there is a conflict of interest thatprevents him from serving in that capacity (see Mental Hygiene Law § 81.19 [d][8]). The personal assistant testified that he has worked for the IP for 34 years and has neverreceived a paycheck. He further testified that he resides in the IP's home; the IP provides for hispersonal needs; and he has limited assets and is dependent upon the IP for his food, clothing andshelter. Furthermore, he testified that he does "pretty much" whatever the IP tells him to do. Byway of example, he admitted that he summoned the police at the direction of the IP when hergrandchildren came to visit and that, although the police handcuffed the IP's grandson, thepersonal assistant did not advise the police that the alleged intruders were the IP's grandchildrenand that the IP had, the previous evening, invited her grandchildren to visit her. It is undisputedthat the personal assistant is the trusted and constant companion of the IP and maintains herhome in an "immaculate" condition. Nevertheless, we conclude that he is disqualified to serve ascoguardian of the IP's person based upon a conflict of interest, inasmuch as he is dependent uponthe IP to meet his basic needs and he does not exercise independent judgment, but rather simplydoes what the IP instructs him to do.
We reject the further contention of petitioners on their cross appeal that the court erred inappointing Permclip's corporate counsel as guardian of the IP's property. It is well establishedthat it is within the discretion of the court to appoint a guardian (see Matter of Wynn, 11 AD3d1014, 1015 [2004], lv denied 4 NY3d 703 [2005]). Here, the record establishes thatPermclip's corporate counsel had worked for Permclip for a few years, and that he arranged tosecure in excess of $2 million that had been left in various unsecured places in the IP's home.Inasmuch as petitioners in the amended petition deferred to their mother's wishes and no longersought to be named guardians to manage the IP's property, we perceive no reason to disturb theexercise of the court's discretion in appointing Permclip's corporate counsel as guardian withrespect to the IP's property (cf. Matter of Chase, 264 AD2d 330, 331 [1999]).
We reject the contention of the IP that the court violated her due process rights by [*3]requiring her to testify at the hearing. Although the Mental HygieneLaw is silent on the issue whether the person alleged to be incapacitated (AIP) may be compelledto testify, we note that Mental Hygiene Law § 81.11 (c) requires the presence of the AIP atthe hearing "so as to permit the court to obtain its own impression of the person's capacity." Inaddition, we note that we previously rejected the contention of the IP that her Fifth Amendmentrights against self-incrimination are implicated in an article 81 proceeding (see Aida C.,44 AD3d at 115; cf. Matter of A.G.,6 Misc 3d 447, 452-453 [2004]). We likewise conclude that her due process rights are notviolated inasmuch as the court is charged with determining her best interests (see generallyWynn, 11 AD3d at 1015). We have reviewed the remaining contentions of the parties andconclude that they are without merit. Present—Scudder, P.J., Hurlbutt, Peradotto, Greenand Gorski, JJ.