Matter of Albert S., 01-02726

• Decision Date: 10 September 2001
• Docket Number: 2,01-02726
• Parties: In the Matter of Albert S. (Anonymous). Eleonor B. (Anonymous), respondent; Elaine S. K. (Anonymous), et al., appellants. 2001-02726 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

In the Matter of Albert S. (Anonymous)

Eleonor B. (Anonymous), respondent

Elaine S. K. (Anonymous), et al., appellants

2001-02726

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Argued June 8, 2001

September 10, 2001

Hoguet, Newman & Regal, LLP, New York, N.Y. (Laura B. Hoguet and Luisa K. Hagemeier of counsel), for appellants.

Ackerman, Levine, Cullen & Brickman, LLP, Great Neck, N.Y. (James A. Bradley of counsel), for respondent.

DECISION & ORDER

GABRIEL M. KRAUSMAN, J.P.

SONDRA MILLER

ROBERT W. SCHMIDT

THOMAS A. ADAMS, JJ.

In a proceeding pursuant to Mental Hygiene Law article 81 and Public Health Law 2992, Elaine S. K. and Deborah S. appeal from so much of a judgment of the Supreme Court, Queens County (Golia, J.), as established a guardianship for the person and property of Albert S., imposed upon Elaine S. K. and Deborah S. the condition that they forgo any steps to hasten the death of Albert S. unless and until it was imminent and inevitable upon a determination that they violated the terms of his living will, and directed that attorneys' fees be paid from the assets of Albert S.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, the petition is denied, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

The Supreme Court improperly concluded that the appellants failed to establish by clear and convincing evidence that the living will of Albert S. directed the withholding of certain medication (see, Grace Plaza of Great Neck v Elbaum, 82 N.Y.2d 10, 16; Matter of Westchester County Med. Ctr. [O'Connor], 72 N.Y.2d 517, 531; Matter of Storar, 52 N.Y.2d 363, 379, cert denied 454 U.S. 858, 70 L. Ed. 2d 153, 102 S. Ct. 309). The living will demonstrates that he held a firm and settled commitment to the termination of life-supporting medicine that would only serve to artificially prolong his life. It is clear that his current condition is terminal, and that he would want his medical care to cease. Moreover, the Supreme Court improperly imposed upon the appellants, as his health care agents, the condition that they forgo any steps to hasten his death unless and until it was imminent and inevitable. There is no authority in the Public Health Law enabling a court to modify a living will.

Under the circumstances, the Supreme Court improvidently exercised its discretion in establishing a guardianship for the person of Albert S. A guardian is to be appointed solely as a last resort, where no available resources or other alternative will adequately protect the person (see, Matter of O'Hear [Rodriguez], 219 A.D.2d 720, 722; Matter...