Mr. M. moved to the Bronx, NY from Florida after the death of their parents to care for his sister, a shut-in who had not been outside of her home for 40 years and had not been bathing or changing her clothes. Although he had engaged home care services for her, he could not provide for her medical needs without being appointed her guardian.
He and a family friend, an attorney, petitioned to become the New York Mental Hygiene Article 81 co-guardians of the sister’s person and property. The sister opposed the appointment of both. She was the beneficiary of two testamentary trusts from her parents, which contained assets in excess of $1,000,000.
Mr. M was the trustee of both trusts, which named his children as remainder men. Testimony indicated that he felt under great pressure to preserve the funds for his children, which made it difficult to make decisions for his sister. For example, it was felt she would benefit from psychiatric treatment, which was not considered by him In addition, he declined to purchase health insurance for her.
Although Mr. M. amended the petition to be named a co-guardian solely of the sister’s person, the Bronx County, New York Supreme Court found that he was not eligible for appointment because of an actual conflict of interest. His potential for financial gain prohibited his appointment. As stated by the Court, “The fact that Mr. M. seeks only to be appointed guardian of the person does not eliminate this conflict. For example, if appointed guardian of her person, Mr. M. will have power to relocate the person and to make medical decisions on her behalf.
Mr. M. testified that he plans to place his sister in a facility, something the court evaluator revealed is medically unnecessary and adverse to the desires of the person, and once the person is relocated, he intends to sell their house” The Court also did not appoint the attorney friend as the proposed co-guardian and instead appointed a third party guardian of the person.
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