Citation Numbers: 167 Misc. 2d 766, 634 NYS2d 1020
Judges: Cornelius
Filed Date: 12/1/1995
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
This case presents the not unusual conflict between the position of health and social professionals, who request that a guardian be appointed and believe that the best interests of the respondent would be served by admission to an adult care facility, and the wishes of the respondent, who opposes appointment of a guardian and wants to return to her home.
On October 17, 1995, this court signed an order directing the respondent to show cause why a guardian should not be appointed for the purposes of providing for her personal needs and management of her property. The court also appointed an attorney for the respondent, under authority of Mental Hygiene Law § 81.10. Pursuant to the provisions of Mental Hygiene Law § 81.07 (a) (1) and § 81.13, the order to show cause was made returnable and a hearing held within 28 days from the filing of the petition.
The respondent, Ethel Jacobs, is 95 years of age, having been born on Christmas Day 1899. She has resided, since 1991, with her sole surviving child, Robert Jacobs, and her daughter-in-law, who are 73 and 74 years of age, respectively. This family has lived in an apartment, above a store, in a building owned by Mr. Jacobs, and the respondent had her own room, which was opposite from the kitchen and has been equipped, by her son, with a bell and cord in order to summon assistance. The
The petitioner is the Chief Executive Officer of F. F. Thompson Health Systems, Inc., which operates F. F. Thompson Hospital, where Mrs. Jacobs was admitted by her daughter-in-law on July 19, 1995. The proof indicated that Mrs. Jacobs was suffering from severe dehydration, and was quite dirty, with evidence of recent incontinence, and also suffering from poor oral hygiene. This was the third admission for the respondent within the past 14 months. In May 1994, she had been admitted with severe heart failure, and readmitted in December 1994 with the same symptoms because she had not been taking prescribed medication. There was some indication that there may have been a misunderstanding concerning the medications to be given to the respondent, but in any event, as of July 1995, the proof indicated that she had been administered the prescribed medications.
The respondent’s treating physician testified that his patient suffered from senile dementia. This was confirmed by one of the hospital psychiatrists, who had examined her on July 28, 1995, and was called as a witness, at the hearing, by counsel for the respondent. As a result, she suffers from cognitive impairments, the consequences of which include lack of recent memory, as well as confusion concerning her whereabouts and date. The psychiatrist testified that, in his opinion, the respondent’s cognitive impairment resulted in her inability to make decisions for herself and to assess risks. In addition to severe ventricular heart failure, the treating physician testified that the respondent suffers from chronic renal insufficiency, but her prognosis is generally good and she is medically stable because of prescribed medications including a diuretic and medication for her heart problems. Also, she is sometimes incontinent, and ambulates with the assistance of a walker.
In addition to the foregoing, there are several other facts which should be noted for purposes of making a final determi
The standard for appointment of a guardian is contained in Mental Hygiene Law § 81.02. In essence, a court is authorized to appoint a guardian for a person only based upon a determination "that the appointment is necessary to provide for the personal needs * * * and/or to manage the property and financial affairs of that person”, and secondly, that the person either agrees to the appointment, or alternatively, "that the person is incapacitated”. (Mental Hygiene Law § 81.02 [a] [1], [2].) The term "incapacity” is defined in Mental Hygiene Law § 81.02 (b), and consists of a determination that the person is likely to suffer harm because of the following:
"1. the person is unable to provide for personal needs and/or property management; and
"2. the person cannot adequately understand and appreciate the nature and consequences of such inability.”
The court is further mandated by Mental Hygiene Law § 81.02 (c) to consider certain factors in reaching the determination of incapacity. The court is required, by this subdivision, to give primary consideration to the functional level and functional limitations, in regard to assessment of four factors, three of which relate to activities of daily living. In addition, the statute requires the court to make an assessment of four additional factors, which encompass the extent of demands placed on the person by their personal needs, property and financial affairs, any physical illness, any mental disability, and the effect of any medications upon the person’s behavior,
In the pending case, consideration of all the factors contained in Mental Hygiene Law § 81.02 leads to the conclusion that Mrs. Jacobs is incapacitated, as the Legislature has attempted to define that term in the statute.
Mental Hygiene Law § 81.12 (b) provides that "the court may, for good cause shown, waive the rules of evidence.” There appears to be a common misconception, based upon this court’s
As aforementioned, in addition to a finding of incapacity, a court must determine whether the appointment of a guardian is necessary to provide for the personal or property needs of a person before such appointment. Specifically, Mental Hygiene Law § 81.02 (a) (1) directs that consideration of the personal needs include food, clothing, shelter, health care or safety, which are also the examples of "personal needs” contained in Mental Hygiene Law § 81.03 (f). Mental Hygiene Law § 81.02 (a) (2) directs that one factor, to be taken into consideration, is the sufficiency and reliability of available resources to provide for personal needs or property management without the appointment of a guardian. The term "available resources” would include visiting nurses, home health aides, and powers of attorney. (Mental Hygiene Law § 81.03 [e].) As an alternative to the appointment of a guardian, Mental Hygiene Law § 81.16 (b) further provides, in relevant part, as follows: "Protective arrangements and single transactions. If the person alleged to be incapacitated is found to be incapacitated, the court without appointing a guardian, may authorize, direct, or ratify any transaction or series of transactions necessary to achieve any
In the pending case, there was no evidence that Mrs. Jacobs’ son has not acted responsibly in exercising the power of attorney to the extent of managing his mother’s financial affairs and otherwise preserving her meager assets. The court has also concluded that neither Mr. Jacobs, nor his wife, have engaged in intentional behavior injurious to the respondent’s health, and indeed, have exhibited love and affection for her. It is also apparent, however, that they may require some assistance in maintaining proper hygiene for Mrs. Jacobs, and arranging proper medical services. Although they may be criticized for failing to seek prompt medical attention in the past, Mr. Jacobs and/or his wife have been the persons responsible for the prior hospital admissions. It should also be noted that during the most recent admission in July 1995, when Mrs. Jacobs was diagnosed as suffering from severe dehydration, parts of the Nation were experiencing extremely high temperatures and many elderly people suffered consequences because of lack of proper ventilation and/or fluids.
Social Services Law § 473 (1) places responsibility upon social services officials to provide certain adult protective services. Specifically, such officials must provide protective services, which include arranging medical services to individuals "who, because of mental or physical dysfunction, are unable to manage their own resources, and carry out the activities of daily living, or protect themselves from neglect or hazardous situations without assistance from others and have no one available who is willing and able to assist them responsibly” (emphasis added). It should be mentioned that in other proceedings, held before this court, the last part of this provision has been injected into legal arguments on the question whether social services officials can be required to serve as guardians.
Generally, Mrs. Jacobs’ son and daughter-in-law are willing and able to assist her, and could be considered as "available resources” under the Mental Hygiene Law. However, in a
. It is apparent that the factors, which the court must take into consideration in making a determination of incapacity, are, to some extent, interrelated, and duplicative. For example, the definition of incapacity contained in Mental Hygiene Law § 81.02 (b) (1) and (2) would appear to encompass the definition of "functional level” and "functional limitation”, as contained in section 81.03 (b) and (c). Nevertheless, section 81.02 (c) directs the court, in making a determination of incapacity, to give primary consideration to "functional level” and "functional limitation”, especially as related to an assessment of four factors, including an understanding and appreciation of the nature and consequences of an inability to manage the activities of daily living. Section 81.02 (d) (1) and (2) then directs a consideration of all other relevant facts and circumstances regarding "functional level” and an understanding and appreciation of the nature and consequences of "functional limitation”.
. A person’s preferences, wishes and values with regard to managing the activities of daily living are included as a primary consideration, but it is questionable how this relates to an objective determination of whether that same person is incapacitated, as opposed to determination of an appropriate dispositional alternative.