Evelyn G. Wallace, Respondent-Respondent. v. << (2000)

Robert Stone, a former Commissioner of the Onondaga County Department of Social Services (OCDSS), was appointed the guardian of respondent in January 1996.   Petitioner, the present OCDSS Commissioner, petitioned Supreme Court for an expansion of powers of the original order of guardianship.   The court granted the relief requested by petitioner, but also mandated that the OCDSS Commissioner personally visit respondent four times per year, pursuant to Mental Hygiene Law § 81.20(a)(5), instead of delegating that duty to OCDSS staff.   We agree with petitioner that the court erred in determining that article 81 of the Mental Hygiene Law requires the OCDSS Commissioner personally to visit each of his wards four times per year.   The OCDSS, as a public agency, may be appointed respondent's guardian (see, Mental Hygiene Law § 81.03[a];  § 81.19[a][2] ).   The court's view that the OCDSS Commissioner's duties are personal and not ex officio would necessitate modification petitions whenever a new commissioner is appointed;  that would be a needless use of judicial resources.   Contrary to the court's determination, the OCDSS Commissioner may delegate the duties of guardianship to staff, but the OCDSS Commissioner is ultimately responsible, as the head of the agency, if the staff fails to discharge those duties appropriately (see, McCormick v. Axelrod, 59 N.Y.2d 574, 586-587, 466 N.Y.S.2d 279, 453 N.E.2d 508, mot. to amend order granted 60 N.Y.2d 652, 467 N.Y.S.2d 571, 454 N.E.2d 1314).   Therefore, we modify the order and judgment by vacating the fourth ordering and decretal paragraph, appointing OCDSS as guardian as an eligible public agency (see, Mental Hygiene Law § 81.19[a][2] ), and deeming the OCDSS Commissioner's duties ex officio.

Order and judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: