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PROCEDURAL BACKGROUND On May 18, 2021, United Health Services Hospitals, Inc. (the “Hospital”) filed a petition pursuant to Article 81 of the Mental Hygiene Law, seeking the appointment of a guardian of the person and property of Elias B., an alleged incapacitated person (“AIP”). The Court issued an order to show cause dated May 20, 2021, appointing Mental Hygiene Legal Service (3rd Dept.) as counsel to represent Elias B. and scheduling the hearing in this matter for June 14, 2021. The hearing was rescheduled for June 16, 2021, at which time the hearing convened via Microsoft Teams. Mental Hygiene Legal Service (3rd Dept.), Kristin Snyder, Esq., of counsel, appeared on behalf of Elias B.; Elias B. appeared; and Dunya Cullen, Esq., attorney for the petitioner, appeared on behalf of the petitioner. Broome County Department of Social Services, on notice of the proceeding as the proposed guardian set forth in the petition, appeared by Kuredin V. Eytina, Esq., Sr. Assistant County Attorney, DSS Legal Unit. At the conclusion of petitioner’s case, Ms. Snyder argued for the petition to be dismissed. The Court reserved its decision and counsel submitted written summations. Upon review and consideration of the petition, testimony, written summations, and controlling authority, the Court now issues this Decision. THE HEARING In support of the petitioner’s case, Madeline Deloria-Mancini, Jenna Dyer, and Mary Ellen B. testified. Elias B. did not testify or present any witnesses but did participate in an initial conference with the Court and his counsel, in the presence of his social worker, who assisted with communication. Elias B. expressed his willingness to accept assistance with discharge from the Hospital, but also his desire to live independently in the community without a guardian. Ms. Deloria-Mancini is a licensed master social worker in the care management department at the Hospital. In that capacity she coordinates community resources for patients admitted to the Hospital and develops their discharge plans. Elias B. presented to the Hospital’s emergency department more than 100 times since September 2020 but was only admitted on March 20, 2021, following a fall. Elias B. bathes himself with reminder and encouragement; gets out of bed on his own; and sometimes needs help using the toilet. He is oriented to time and place but not the date. He can recognize when someone calls to him. Elias B. is on a fluid restriction at the Hospital because he sometimes drinks too much liquid, resulting in a significant drop in his potassium levels and alteration of his mental state. Medically, Elias B. has not required acute care since March 31, 2021 and is at his baseline. He is ready for discharge from the Hospital. He would not be admitted to the Hospital if he presented to the emergency department in his current condition. Ms. Deloria-Mancini testified that although Elias B. no longer requires inpatient care at the Hospital, the Hospital has been unable to effectuate a safe discharge plan for him. According to Ms. Deloria-Mancini, a safe discharge plan for Elias B. requires a referral to a skilled nursing facility, and she made approximately 270 referrals to such facilities. She received a response from only one facility, in New Jersey. Elias B. objects to the appointment of a guardian or his placement in a skilled nursing facility, and, according to Ms. Deloria-Mancini, a guardian is necessary to effectuate Elias B. ‘s placement at the facility in New Jersey. Elias B. was providing his own medical consent at admission. After Elias B. refused the offered discharge to the New Jersey skilled nursing facility, a psychiatrist at the Hospital determined Elias B. lacks the capacity to effectuate his own discharge planning. The psychiatrist did not testify, nor was his experience evaluating developmentally disabled patients otherwise established. Elias B.’s only income is from Social Security; he receives New York State Medicaid and services through the Office for People with Developmental Disabilities (“OPWDD”). Representative payee services, provided by Catholic Charites of Broome County, are among those; no evidence was offered of the need for a property guardian. Jenna Dyer works as the care coordination supervisor for Southern Tier Connects, and she has coordinated the services Elias B.’s receives through OPWDD. Since 2017, Elias B. has been enrolled to receive services through OPWDD such as community habilitation and nursing services. Elias B. also receives services through the Office of Mental Health, including medication administration when he has lived independently. He has resided in individual residences and group homes. Prior to Elias B.’s March admission to the Hospital, he resided at a group home for a month or six weeks. Ms. Dyer testified Elias B. had an incident with the group-home owner and was kicked out or left the home. Catholic Charities, as Elias B.’s representative payee, stopped paying rent on the boarding house in April 2021, after Elias B. was admitted to the Hospital. Ms. Dyer believes Elias B. needs assistance with medication administration and daily living skills. Elias B. has lived in the Binghamton area for the last two years and, prior to that, he resided in Delaware County and Oneonta, New York. He has a history of leaving his living situations and making his own plan for sleeping and eating. Prior to the pandemic, he would regularly visit places in the community for food and socialization, including the hospital emergency department. Elias B. knows Ms. Dyer and how to contact her if he needs assistance. He also knows how to get to the hospital if necessary. She acknowledged that if he were to be placed at the facility in New Jersey, he could voluntarily leave if he chose. Ms. Dyer acknowledged on cross-examination that her agency was seeking alternative housing for Elias B. when he fell and was admitted to UHS, and that OPWDD has a “hard to place” program for individuals like Elias B. for whom stable residential arrangements are a challenge. She also confirmed that services through OPWDD would also stop if Elias B. relocated to New Jersey. Mary Ellen B. is Elias B. ‘s sister. Elias B. executed a health care proxy in the past, naming her as his health care agent. She testified she is willing to make health care and personal decisions for Elias B. if needed. LEGAL STANDARD The Court may appoint a guardian for an AIP if the Court determines that the “appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person.” MHL §81.02(a)(1). The appointment must also be based on either the consent of the person or a finding, by clear and convincing evidence, that the person is incapacitated. MHL §81.02(a)(2). The determination of incapacity hinges on whether the person is likely to suffer harm because the “person is unable to provide for personal needs and/or property management and the person cannot adequately understand and appreciate the nature and consequences of such inability.” MHL §81.02(b). Under this analysis, the Court must give primary consideration to the person’s “functional level and functional limitations,” including an assessment of the person’s ability to manage the activities of daily living related to property management, such as money management and banking; his understanding and appreciation of the nature and consequences of any inability to manage these activities; his preferences, wishes, and values regarding management of these affairs; and the nature and extent of the person’s property and finances, in the context of his ability to manage them. See Matter of Maher, 207 AD2d 133 (2d Dept 1994); MHL §§81.02(c); 81.03(h). The Court must also assess, in pertinent part, “the extent of the demands placed on the person…by the nature and extent of that person’s property and financial affairs;” any mental disability and the prognosis of the disability; “any medications with which the person is being treated and their effect on the person’s behavior, cognition and judgment;” and “other relevant facts and circumstances.” MHL §§81.02 (c)(4); (d). The mandate of Article 81 is that the Court must consider the AIP’s personal wishes, preferences, and desires, allowing him to make the decisions affecting his life, to the extent he is able to. MHL §81.01; In re Matter of Cheryl B. K., 45 Misc. 1227 (A) (Sup Ct, Broome County 2012). The Court must be careful not to unduly substitute its judgment, or that of others, for the AIP’s judgment. Id.; Matter of Williams, 194 Misc 2d, 793 (Sup Ct, Suffolk County 2003). Article 81 cases are replete with references to respecting the AIP’s wishes to the extent possible. Williams, supra; Cheryl B. K., supra; In re Pfluger, 181 Misc 2d, 294 (Sur Ct, New York County 1999). The Court should “approve any acts as long as it falls within the range of reasonable actions for a given situation.” Pfluger, supra, at 299. Whether to appoint a guardian is a matter of discretion requiring the Court to determine if the AIP actually requires the assistance of a guardian. Matter of Daniel TT, 39 AD3d 94 (3rd Dept. 2007). FINDINGS OF FACT AND CONCLUSIONS OF LAW The Court makes the following findings of fact based on the clear and convincing evidence proffered at the hearing. Elias B. is a 65-year old developmentally disabled individual who began receiving services from OPWDD in 2017, later in his life. He has lived in Binghamton for the past two years and, prior to that, he lived in the Oneonta and Delaware County areas. He was admitted to the Hospital on March 20, 2021 after experiencing a fall. He is currently a social admission at the Hospital, having returned to his baseline, and is medically ready for discharge. Elias B. can manage many of his own activities of daily living but requires assistance with medication administration and prompting for bathing. The Hospital has determined the only safe discharge plan for Elias B. is for his placement in a skilled nursing facility. The Hospital sent referrals for Elias B. to approximately 270 such facilities, and only one, in New Jersey, indicated they would accept Elias B. as a resident. Following Elias B.’s refusal of this discharge, the Hospital determined Elias B. lacks capacity to effectuate his own discharge planning. Immediately prior to his admission at the Hospital, Elias B. was living unhoused. Elias B. has a history of unstable living situations and elopement from housing coordinated through his service providers, including OPWDD. He is familiar with the Binghamton area and knows how to contact his care coordinator. He also knows locations in the community to go for socialization and food and water, admittedly including the Hospital’s emergency department. Elias B.’s New York State-based OPWDD services would be discontinued if he were to move to the facility in New Jersey. Elias B. has not consented to the appointment of a guardian, so any guardianship appointment may only be made based on a finding of his incapacity. MHL §81.02(b). This case approaches the bounds and uses of an Article 81 guardianship proceeding. Elias B. clearly has some limitations which impact his ability to fully attend to activities of daily living. He attends to most activities on his own and needs some prompting for bathing and medication administration. There was no testimony about his medications and what risks he may suffer as a result of mismanaged medication administration. The main limitations identified are Elias B.’s history of an inability to maintain stable housing and his alleged inability to currently effectuate his own discharge planning from the Hospital. Petitioner’s witnesses only testified to Elias B.’s potential need for a guardian with respect to discharge planning. To date, Elias B.’s housing needs have been addressed through the consensual services of OPWDD, albeit somewhat imperfectly due to Elias B.’s inconsistency in accepting those services. Courts have consistently found that the threshold for appointment of an Article 81 guardian is reasonable safety and undue risk. Matter of S. B. (E. K.), 60 Misc 3d 735, 746 (Sup Ct, Chemung County 2018), aff’d as modified by Matter of Elizabeth T. T., 177 AD3d 20 (3d Dept 2019);Matter of Jillian B (Benny D), 68 Misc 3d 1219(A) at *8 (Sup Ct, Chemung Co, 2020); Cheryl BK, supra at *4. It is not disputed that Elias B. is safe in his current placement. It is also true that his current placement is not appropriate; it is not an appropriate use of community acute care services and is inarguably not the least restrictive setting for Elias B. The question becomes one of relative safety, or risk, of the presented skilled nursing facility discharge and the presumptive alternative of discharge to the community. Elias B. has a history of elopement and unstable housing. Whether due to personality conflicts, behavioral issues, or a conscious choice on his part, Elias B. does not maintain steady, stable housing for prolonged periods of time. With his history of elopement, there is a reasonable probability he would leave the New Jersey facility if placed there against his wishes. Authority to place is not authority to restrain a person against his will. Jillian B (Benny D), supra, at *8. Elias B. would be in a location foreign to him, with no services established or any local contacts with whom he is familiar, placing him at substantial risk of harm. The presumptive alternative is Elias B. being discharged from the Hospital into the Binghamton area, under the same circumstances as existed prior to his hospital admission, with OPWDD continuing to coordinate his housing locally, either in a group home or independent living. Elopement and instability of housing remain a risk in the Binghamton area, but here Elias B. is familiar with his services coordinator, the Hospital, and other community resources and has historically managed his existence. The Court finds that the discharge plan currently put forth by the Hospital poses a greater risk of harm to Elias B. than the alternative. Under these circumstances, the appointment of a guardian would not obviate the risk of harm posed to Elias B. due to his inability or unwillingness to remain in stable housing, so is not the least restrictive alternative. There is no risk-free solution to Elias B.’s situation; the Court’s decision is based on a relative assessment of the options and a balancing of Elias B.’s right to maximum independence. Cheryl B., supra, at *4. The Court acknowledges the decisions Elias B. has and may make are not ones the petitioner, or most other people, would make. At the same time the court should not unduly substitute its judgment for his. Id.; Jillian G (Benny D), supra at *3. The fact remains that Elias B. has successfully navigated the community and had his needs met, with varying levels of acceptance of services, for years. Other factors weigh in the Court’s decision. Petitioner’s proposal that the Broome County Department of Social Services be appointed as guardian, for a person sought to be placed out of state, imposes a substantial burden on that Department. Testimony that the facility where Elias B. would be placed would and could become his guardian is speculative, and problematic under New York guardianship law, where a care provider is presumptively precluded from appointment. MHL 81.19(e). That would leave Elias B. under the legal control of his care facility, without independent service coordination and hundreds of miles from his home and only family support. The testimony at the hearing also raised an issue, not fully explored, with respect to OPWDD’s efforts and ability to continue to work with Elias B. on housing, his only clearly established limitation. Elias B.’s capacity for decision making may also need further exploration, within the framework of his qualification for OPWDD services, and considering the testimony that Elias B. has returned to the baseline at which he was initially allowed to provide his own consent to care. In furtherance of this Decision, it is hereby ORDERED, that the request for the appointment of a guardian of the person and/or property of Elias B. is DENIED, and the petition of United Health Services Hospitals, Inc. is DISMISSED. Dated: June 30, 2021

 
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