Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
IN RE: THE APPLICATION OF MICHAEL G. LANG, PETITIONER–RESPONDENT, FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON AND/OR PROPERTY OF DEBORAH A.L., AN ALLEGED INCAPACITATED PERSON, RESPONDENT–APPELLANT.
MEMORANDUM AND ORDER
(PROCEEDING NO. 2.)
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, and the matter is remitted to Supreme Court, Oswego County, for further proceedings in accordance with the following Memorandum: In these proceedings pursuant to Mental Hygiene Law article 81, respondent, an alleged incapacitated person (AIP), appeals from an order that determined that she is incapacitated and in need of a guardian. We agree with the AIP that Supreme Court erred in making that determination without considering “the ‘sufficiency and reliability of available resources' (Mental Hygiene Law § 81.02[a][2] ) to satisfy the AIP's personal needs and property management without the need for a guardian” (Matter of Samuel S. [Helene S.], 96 AD3d 954, 957, lv dismissed 19 NY3d 1065). It is undisputed that the AIP had “available resources,” i.e., a power of attorney and healthcare proxy (see Mental Hygiene Law § 81.03[e] ), and the court should therefore have inquired whether those advance directives were adequate to protect the AIP's personal and property interests before determining that she is incapacitated and in need of a guardian (see Samuel S., 96 AD3d at 956–957; Matter of May Far C., 61 AD3d 680, 680; Matter of Maher, 207 A.D.2d 133, 140, lv denied 86 N.Y.2d 703, rearg. denied 86 N.Y.2d 886).
We therefore remit the matter to Supreme Court for further proceedings on the petitions.
Frances E. Cafarell
Clerk of the Court
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: CA 14–00843
Decided: January 02, 2015
Court: Supreme Court, Appellate Division, Fourth Department.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)