IN RE: Application of Fontanne DOLLECK (2004)

Order, judgment and commission, Supreme Court, New York County (William P. McCooe, J.), entered June 18, 2003, appointing co-guardians of the person and property of the incapacitated person, and, inter alia, bringing up for review prior orders which rejected appellants family members' requests to set aside the incapacitated person's transfer of certain condominium apartments to a trust for the ultimate benefit of respondent companion, unanimously affirmed, without costs.

 Evidence that the incapacitated person executed the trust after having suffered a stroke and also while suffering from Alzheimer's disease does not, by itself, satisfy appellants' burden of showing that the incapacitated person was incompetent at the time of the trust's creation (see Harrison v. Grobe, 790 F.Supp. 443, 447-448 [1992], affd. 984 F.2d 594 [1993], citing, inter alia, Feiden v. Feiden, 151 A.D.2d 889, 542 N.Y.S.2d 860 [1989], and Matter of Ford, 279 App.Div. 152, 108 N.Y.S.2d 122 [1951], affd. 304 N.Y. 598, 107 N.E.2d 87 [1952] ).   We also note the ample third-party testimony adduced by respondent of the incapacitated person's lucidity up until the weeks before the hearing.   Nor was there a showing that respondent exerted undue influence on the incapacitated person (see id. at 455-456).   The incapacitated person and respondent had been companions for 30 years, during most of which time the former supported the latter and bestowed lavish gifts on him, and respondent had been caring for the incapacitated person for many years and continued to do so after his stroke.   In addition, the trust's transfer of the subject apartments to respondent was conditioned on his living with the incapacitated person for the rest of the latter's life, serving as his daily companion and performing specified caregiving responsibilities.   As the hearing court found, the creation of the trust was entirely consistent with the longstanding relationship between the incapacitated person and respondent.   Respondent's appointment as a co-guardian of the person of the incapacitated person was a proper exercise of discretion (see Matter of Von Bulow, 63 N.Y.2d 221, 224, 481 N.Y.S.2d 67, 470 N.E.2d 866 [1984] ), in view of the clear expression of intent in the trust documents that respondent be responsible for the incapacitated person's health care.   We have considered appellants' other arguments and find them unavailing.