In the Matter of Lillian
| Decision Date | 17 April 2008 |
| Docket Number | No. 2005-1241,2005-1241 |
| Citation | 20 Misc.3d 215,860 N.Y.S.2d 382,2008 NY Slip Op 28155 |
| Parties | In the Matter of the Appointment of a Guardian of the Person and Property of LILLIAN, an Alleged Incapacitated Person. |
| Court | Supreme Court of Delaware |
Rusk, Wadlin, Heppner & Martuscello, LLP, Kingston (Jason J. Kovacs of counsel), for Lillian.
This is a proceeding brought by the Delaware County Commissioner of Social Services by order to show cause filed on or about March 23, 2007 and signed by the court on April 2, 2007 to extend the Mental Hygiene Law article 81 guardianship of respondent.
In the answer to the order to show cause, the attorney appointed for respondent raises two defenses: (1) the court lacks personal jurisdiction of respondent, and (2) the court must hold a hearing on the extension of the guardianship in the presence of respondent.
Lillian was determined to be incapacitated and in need of a guardian in a previous proceeding before this court resulting in findings and judgment, dated March 7, 2006, appointing the Commissioner as guardian of respondent. That judgment provided for the duration of the guardianship to last until March 31, 2007 with leave to the Commissioner to reapply for an extension, which he has now done. (Transcript at 55-59.) The court will take judicial notice of the prior record and proceedings in this matter. (Matter of Magid v Gabel, 25 AD2d 649 [1st Dept 1966]; Fisch, New York Evidence § 1065, at 602 [2d ed].)
The original hearing in this matter was held on February 2, 2006 in the room of respondent at Fox Hospital, Oneonta, New York. At that time, the court heard testimony which it found clear and convincing that the respondent was incapacitated and in need of a guardian. (Mental Hygiene Law § 81.02.) The Delaware County Commissioner of Social Services was appointed as guardian of the person and property. Among the powers granted to the guardian was the power to choose the place of abode of the ward. (Mental Hygiene Law § 81.22 [a] [9].) In exercise of that authority the Commissioner transferred Lillian to Cedar Hill Health Care Center, Randolph, Massachusetts, where she continues to reside.
A guardian appointed pursuant to article 81 of the Mental Hygiene Law has no power to change the domicile of the incapacitated person without court authorization, even though power is given to change the place of abode. (Estate of Bauch, NYLJ, Jan. 8, 2004, at 20, col 3 [Sur Ct, Suffolk County]; Brown v Brown, 86 Misc 2d 71 [Sup Ct, Kings County 1976]; Matter of Webber, 187 Misc 674 [Sur Ct, Kings County 1946]; Matter of Kassler, 173 Misc 856 [Sup Ct, Queens County 1940].)
Since this court's order appointing the guardian gave only power to choose the ward's abode, but did not authorize a change of domicile, the respondent remains a domiciliary of Delaware County. Inasmuch as this proceeding for extension of the guardianship was authorized in the court's original order appointing the guardian and the respondent continues to be domiciled in Delaware County, the court continues to have personal jurisdiction of respondent. (Mental Hygiene Law § 81.04.) "[I]f a judicial proceeding is begun with jurisdiction over the person of the party concerned it is within the power of a State to bind him by every subsequent order in the cause." (Michigan Trust Co. v Ferry, 228 US 346, 353 [1913].)
Mental Hygiene Law § 81.11 (c) provides:
Pursuant to this provision of the Mental Hygiene Law this court by order dated February 5, 2008 directed that a hearing on the order to show cause for extension of the guardianship proceed without the presence of respondent. A hearing was held on March 11, 2008 at which the attorney for respondent appeared. In an analogous situation it has been held that when the alleged incapacitated person refuses to participate in the hearing her presence can be waived by the court. (Matter of E.H., 13 Misc 3d 1233[A], 2006 NY Slip Op 52101[U] [Sup Ct, Bronx County 2006].) Similarly, under Mental...
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