In Re Maher

207 A.D.2d 133 (1994)

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Nature of the Case

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Facts

D suffered a stroke which left him with right-sided hemiplegia and aphasia. For some time after the operation, D remained partially paralyzed and aphasic, although occasionally he was able to speak a few words and to move a bit on his right side. P, D’s son, commenced a proceeding pursuant to Mental Hygiene Law for the appointment of a conservator. The court appointed a temporary receiver and a guardian ad litem. The guardian ad litem filed a report wherein she stated that due to D's physical condition 'he is presently incapable of managing his own business and financial affairs,' and she recommended the appointment of a conservator of his property. The guardian objected to the appointment of conservator because of a 'perceived conflict of interest'--due to the fact that he also represented a hospital that owed D considerable sums in attorneys' fees for services rendered in past litigation. The court then appointed P and Elizabeth Maher, D's sister, and for many years his office manager, as temporary receivers pending the conservatorship hearing, upon the posting of an undertaking in the sum of $ 1,000,000 with an authorized surety company. On March 31, 1993, the temporary receivers advised the court that D's condition had 'improved dramatically' and that D wished to discontinue the proceeding. The guardian ad litem joined in the application, and the court granted the request. Once again according to P, D's condition abruptly deteriorated, and he began to behave in an irrational and abusive manner. P announced his intention to go forward with the conservatorship proceeding, based on his allegation that the respondent had become 'confused and irrational.' D revoked the previously issued power of attorney in favor of P and executed a new power of attorney in favor of Irwin F. Simon, an attorney who had done per diem work for the respondent's law firm for many years. The guardian ad litem proposed to withdraw the petition. On June 1, 1993, D disappeared from the home that he had shared with P and another of his sons. On June 17, 1993, D married Ms. Kelly. A hearing was held. The court found that P had not carried his burden of proving by clear and convincing evidence that (1) D was incapacitated, and (2) a guardian was necessary to manage his property and financial affairs. P appealed.