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When 80-year-old J.S. took the stand in his guardianship proceeding last month, he could not recognize his ex-wife in the courtroom but was able to point out the longtime neighbor he wanted to become his guardian. Mr. S. told the court that the neighbor, Debra Guida, “buys me things, takes damn good care of me; she’s a great woman.” Now, a Nassau County judge has ratified Mr. S.’s choice, even though the judge observed that it was “quite clear” Mr. S. lacked “the mental capacity to understand his functional limitations” and despite reservations by his temporary guardian and the objections of the county Social Services Department. On the stand, Mr. S. was “at times combative, at times coherent, and at times plain silly”—he recited the limerick “Peter Piper picked a peck of pickled peppers” twice between questions—but Supreme Court Justice Arthur M. Diamond ( See Profile) found that Mr. S. had “clearly expressed his comfort and trust in Mrs. Guida.” His dementia “has not deprived him of the ability to express his desire on this very critical and personal issue in his life,” Justice Diamond wrote in Matter of Imhof, 029341-I-2009. The Nassau Supreme Court decision appears on page 36 of the print edition of today’s Law Journal. Mr. S., who has been estranged from his wife and four adult children since his 2001 divorce, lived near Ms. Guida for approximately 20 years, according to the decision. Ms. Guida testified that she had been looking out for Mr. S. for five years and had had a joint bank account with him since 2004, when there was no issue about his mental capacity. A part-time lunch aide with three children who still live at home, Ms. Guida testified that she takes Mr. S. to his doctor appointments and makes sure he takes his medicine, accompanies him to the barber, monitors his mail for bills, washes his clothes and prepares his meals—usually frozen dinners—when he does not eat with her family. She estimated that he spends six hours a day at her home. In March 2009, Mr. S. signed a durable power of attorney form naming Ms. Guida as his attorney-in-fact and her husband as an alternate. The county Department of Social Services, represented by Scott A. Smith, objected to Ms. Guida’s appointment. A caseworker testified that she had received an anonymous complaint about Mr. S. walking around his neighborhood unattended. The caseworker, Eileen Ryan, said she had visited Mr. S.’s home and found it to be run down and dusty, with peeling wallpaper. Mr. S., described by Ms. Ryan as “affable, gregarious and very friendly,” could not identify his four children in a picture, and once followed Ms. Ryan outside in his bare feet, mistaking her car for his. A court evaluator, Edward Cunningham, testified that in March Ms. Guida had closed the joint bank account and transferred its $73,000 into her own account, and subsequently into her attorney’s escrow account. There was no indication Ms. Guida had kept any of the money for herself, according to Mr. Cunningham. Ms. Guida said she transferred the $73,000 to her account for Medicaid planning purposes on the advice of her attorney, Thomas A. Hynes. Ellen Flowers, Mr. S.’s temporary guardian, also took the stand and said she had “serious concerns” about Ms. Guida’s appointment, according to the decision. Ms. Flowers, a partner in Lake Success-based Abrams, Fensterman, Fensterman, Flowers, Greenberg & Eisman, testified that Ms. Guida had failed to follow a doctor-recommended low-salt diet for Mr. S. and was slow to have the lawn of his home cut. She pointed out that Ms. Guida could have used Mr. S.’s personal funds before turning to the county to obtain professional home care for him and to make timely repairs to his home, but did not. Ms. Guida countered that Mr. S.’s doctor had never instructed her to change his diet, and that Mr. S. had always enjoyed frozen dinners, cake and cookies. She acknowledged she may have let the lawn overgrow. Clear Preference Noting that Article 81 of the Mental Hygiene Law, which governs guardianship proceedings, does not “expressly state whether a person…must have the mental capacity to nominate a guardian,” Justice Diamond found case law on the subject to be equally lacking. But, he observed, under §81.19[c] of the law, the court “must follow” Mr. S.’s wishes, unless “it determines that such appointment is not appropriate.” Here, the judge wrote, Mr. S. “was capable of expressing his desire to have Mrs. Guida and only Mrs. Guida appointed as his guardian and…his preference should be given due consideration by the court.” Next, the judge balanced the factors in favor of appointing another guardian, rather than Ms. Guida, including social relationships, the nature of services provided and the cost involved. As Mr. S. was estranged from his wife of 31 years and his four children, Ms. Guida was the only person with whom he had a “close and personal relationship.” The judge acknowledged that Ms. Guida had a potential conflict of interest as Mr. S.’s sole heir, in that she might be tempted to preserve his assets rather than use them on his care. But he noted that children have the same conflict, and that does not prevent courts from routinely appointing them. In any case, Mr. S. has assets of only $110,000, and the judge said it was unlikely there would be any assets to inherit. The judge also observed that the concerns about Ms. Guida’s care-giving skills were not sufficient to deny Mr. S.’s wishes. And he said the system was placing unreasonable expectations on a “good Samaritan” who had volunteered to care for an elderly neighbor. “[I]t is my view that what she has done—without compensation or request for same—for years on his behalf, far, far outweigh her failure to be proactive on his behalf in certain areas,” Justice Diamond wrote in concluding that her appointment would be in Mr. S.’s best interest. Although he concluded that Ms. Guida was qualified to serve as guardian, the judge directed that she continue to employ a full-time home health aide who had been put in place by the temporary guardian and that she complete a training program as soon as one was offered. David A. Smith, a Garden City attorney who represented Mr. S. pro bono, praised the decision as recognizing that mentally “bereft” people have cognizable needs and wants. He said his client’s position was clear. “Just because I have lost some of my faculties does not mean I have lost all of my rights,” Mr. Smith said in an interview. “He wanted to say what he wanted to say and during the 15 minutes he was on the stand, his memory was almost completely vacant, but he kept pointing to ‘that woman there.’” In an interview, Ms. Flowers, the temporary guardian, said that although Mr. S. was significantly impaired, “[h]e does recognize Debra Guida…knowing that he recognizes her and responds very well to her, she is probably going to get the most cooperation from him,” she said. A social services spokeswoman declined to comment. In an interview, Ms. Guida’s attorney, Mr. Hynes of Hynes & Chu in Mineola, said his client is just being a good neighbor. “I’m glad that the judge supported a good Samaritan here,” Mr. Hynes said. He added that he plans to ask the county to help pay for additional professional in-home care for Mr. S. and use the escrow money to pay for supplemental needs. “We have an interesting battle ahead,” said Mr. Hynes. “We are going to try to keep him home as long as possible.” @

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