IN RE: JOSEPH D. (Anonymous).

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: JOSEPH D. (Anonymous). Adriana D. (Anonymous), et al., respondents; Frank D. (Anonymous), nonparty-appellant.

Decided: October 28, 2008

STEVEN W. FISHER, J.P., JOSEPH COVELLO, WILLIAM E. McCARTHY, and JOHN M. LEVENTHAL, JJ. Bryan Ha, New York, N.Y., for appellant. Robert Kruger, New York, N.Y., guardian for the property of Joseph D.

In a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of Joseph D., an alleged incapacitated person, nonparty Frank D., the son of Joseph D., appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Thomas, J.), dated May 7, 2007, which, after a hearing, inter alia, granted the petition and appointed an independent guardian for the property of Joseph D. and a limited guardian for his person.

ORDERED that the order and judgment is affirmed, without costs or disbursements.

Contrary to the appellant's contentions, the Supreme Court properly determined, after a hearing, that the petitioners established, by clear and convincing evidence, that Joseph D. was an incapacitated person (see Mental Hygiene Law § 81.02[a][2];  [b];  Matter of Nellie G., 38 A.D.3d 547, 548-549, 831 N.Y.S.2d 473).   Moreover, the Supreme Court providently exercised its discretion in appointing both a limited guardian for the person of Joseph D., and an independent guardian for the management of his property (see Mental Hygiene Law § 81.02[a][1] ).   A limited guardian for the person of Joseph D. was necessary to provide for his personal needs (see Matter of Bess Z., 27 A.D.3d 568, 813 N.Y.S.2d 140).   Under the circumstances of this case, the power of attorney held by the appellant was not a sufficient and reliable available resource for the management of Joseph D.'s property (see Mental Hygiene Law § 81.02[a][2] ), and the appellant was unsuitable to serve in the capacity of guardian.   Accordingly, the Supreme Court properly concluded that an independent guardian was necessary for the management of Joseph D.'s property (see Matter of Ardelia R., 28 A.D.3d 485, 812 N.Y.S.2d 140).

The parties' remaining contentions are without merit.

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