A guardian who is given authority relating to the personal needs of the incapacitated person shall afford the incapacitated person the greatest amount of independence and self-determination with respect to personal needs in light of that person’s functional level, understanding and appreciation of that person’s functional limitations, and personal wishes, preferences and desires with regard to managing the activities of daily living. i
Particularly, with respect to the power imparted to a guardian to choose the place of abode for an incapacitated person Mental Hygiene Law § 81.22(a)(9) directs: “the choice of abode must be consistent with … the existence of and availability of family, friends and social services in the community, the care, comfort and maintenance, and where appropriate, rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person resides; placement of the incapacitated person in a nursing home or residential care facility …, or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person”
Example: Sally of Smithtown, NY consented to the appointment of a Temporary Guardian (“TG”). At the time, Sally was a patient at a Nesconset, NY nursing home. In giving her consent to the appointment of a guardian, Sally sought assurance that she would be able to return home. Subsequently, the TG determined that a safe return home for Sally was not possible based on the existence of an intense conflict between her niece, and two grandnieces. The TG observed that the grandnieces continually drew Sally into their dispute leaving her upset and agitated. Accordingly, the TG arranged for the placement of Sally at a Smithtown, NY assisted living.
The TG sought the Court’s ratification of his action as Sally and her family are split on the TG’s decision, some supported it and others opposed it. The Court heard the testimony of a psychiatrist and visited Sally at the Smithtown, NY assisted living at which time the Court and counsel asked her questions about her current living conditions and her preferences. Sally expressed a strong preference for returning to her home with the assistance of such aides as might be required.
The struggle the Court had was between the clear statutory mandate that Sally’s preferences, wishes and desires be given great weight and Sally’s functional level, understanding and appreciation of her functional level. The key issue is whether it is reasonable under the circumstances to maintain Sally at her home. The Court was confronted with the dilemma of balancing Ms. Williams’ preference, which is favored by law (Mental Hygiene Law § 81.22(a)(9)), against placement in a facility contrary to such preference.
The Court ultimately found that in applying the balancing test, the conclusion was overwhelmingly in favor of placement at the Smithtown, NY assisted living facility.
The Court considered several factors including:
- the psychiatrist’s recommendation of the assisted living facility;
- the jeopardy confronting Sally as a result of the conflict, altercation and burdening influence of family members;
- the recommendation of the law guardian, which is entitled to great probative value;
- the recommendations of the niece and grandnieces;
- Sally’s assessment of the sunrise assisted living facilities;
The Court stated that it was fully aware of, and sensitive to, the fact that neither it nor a Guardian should be empowered to substitute their judgment for that of a person for whom a guardian has been appointed merely because they believe that the decision of such person is not the best one. The Court finally stated that medical testimony established that Sally suffered from dementia. Her expressed preference was not simply undesirable, it was not rational and abundantly contrary to her best interests. ii
To be continued….
Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.