

Matter of Harold W.S. (Mark P.--Lauralyn W.) (2015 NY Slip Op 08844)





Matter of Harold W.S. (Mark P.--Lauralyn W.)


2015 NY Slip Op 08844


Decided on December 2, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on December 2, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
L. PRISCILLA HALL
JEFFREY A. COHEN
BETSY BARROS, JJ.


2013-07079
 (Index No. 30026/13)

[*1]In the Matter of Harold W. S. (Anonymous).
andMark P. (Anonymous), petitioner-respondent; Lauralyn W. (Anonymous), nonparty-appellant.


Alexandra Siskopoulos, New York, N.Y., for nonparty-appellant.
Mental Hygiene Legal Service, Mineola, N.Y. (Michael Neville, Lisa Volpe, and Dennis B. Feld of counsel), for respondent.

DECISION & ORDER
In a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian of the person and property of Harold W. S., an alleged incapacitated person, nonparty Lauralyn W. appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Westchester County (Murphy, J.), entered May 24, 2013, as, after a hearing, granted the petition and appointed an independent guardian to manage Harold W. S.'s person and property.
ORDERED that judgment is affirmed insofar as appealed from, with costs.
The nonparty appeals from a judgment pursuant to Mental Hygiene Law article 81, which, inter alia, appointed an independent guardian to manage Harold W. S.'s person and property. Contrary to the contention of the attorney for Harold W. S., the nonparty-appellant is aggrieved by the judgment (see CPLR 5511; see also Matter of Joseph D., 55 AD3d 907; Matter of Isadora R., 5 AD3d 494).
The petitioner commenced this proceeding in his capacity as the administrator of the skilled nursing facility where Harold W.S. resides. A nursing home which is concerned with the welfare of a resident falls within the scope of the statutory definition of those parties who are permitted to commence a proceeding pursuant to Mental Hygiene Law article 81 (see Mental Hygiene Law § 81.06[a][6]). Here, the petition alleged, inter alia, that the petitioner was concerned for the welfare of Harold W.S., and also that Harold W.S. was incapable of arranging for payment of his nursing home bill. Contrary to the nonparty-appellant's contention, the latter allegation did not deprive the Supreme Court of subject matter jurisdiction. Nothing in the statutory definition of a permissible petitioner (see Mental Hygiene Law § 81.06[a]), or in the stated legislative purpose of article 81 of the Mental Hygiene Law (see Mental Hygiene Law § 81.01) precludes the Supreme Court from exercising jurisdiction over the proceeding under these circumstances.
The Supreme Court may appoint a guardian for a person if the court determines that [*2]the appointment is necessary to provide for the person's personal needs and/or to manage his or her property and financial affairs, and the person agrees to the appointment or is incapacitated (see Mental Hygiene Law § 81.02[a]). In deciding whether the appointment is necessary, the court must consider the report of a court evaluator and the sufficiency and reliability of available resources to provide for personal needs or property management without the appointment of a guardian (see Mental Hygiene Law § 81.02[a]). A determination of incapacity must be based on clear and convincing evidence and must consist of a determination that a person is likely to suffer harm because he or she is unable to provide for personal needs and/or property management and cannot adequately understand and appreciate the nature and consequences of such inability (see Mental Hygiene Law § 81.02[b]). A guardian should be appointed only as a last resort, where no available resources or other alternative will adequately protect the alleged incapacitated person (see Matter of Albert S., 286 AD2d 684; Matter of Maher, 207 AD2d 133).
Here, clear and convincing evidence established that Harold W. S. was incapacitated (see Mental Hygiene Law § 81.02[b]). Moreover, contrary to the nonparty-appellant's contention, the evidence supported a finding that the appointment of a guardian was necessary to provide for Harold W. S.'s personal needs and to manage his property and financial affairs (see Mental Hygiene Law § 81.02[a]).
DILLON, J.P., HALL, COHEN and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


