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In re Maher

    Brief Fact Summary. Petitioner Conservator Francis E. Maher, Jr. (Petitioner), Respondent Francis E. Maher’s (Respondent) son, appeals a lower court ruling that dismissed his petition for guardianship of Respondent’s property, pursuant to New York State law regarding the mental capacity of conservetees.

    Synopsis of Rule of Law. Under New York State law, a Conservator must demonstrate by clear and convincing evidence that a conservetee is incapacitated and that a guardian is necessary to manage conservetee’s property and financial affairs in order for the Court to approve guardianship.

    Facts. Attorney Respondent suffered a stroke that left him with right-sided hemiplegia and aphasia. Petitioner sought guardianship of Respondent’s property, arguing in the lower court that Respondent was unable to handle his financial and business affairs. Petitioner had initially begun the conservatorship proceeding, then revoked the proceeding because Respondent had markedly improved in Petitioner’s opinion, and then reinstituted the action when Respondent appeared “confused and irrational” and insisted on marrying a woman whom Respondent had been dating since the death of his first wife. The lower court dismissed the petition with prejudice, stating that Petitioner had not met the burden of demonstrating by a clear and convincing standard that Respondent was in need of guardianship. Petitioner appeals this ruling.

    Issue. Under New York State law, must a conservator demonstrate by clear and convincing evidence that a conservetee is incapacitated and that a guardian is necessary to manage conservetee’s property and financial affairs in order for the Court to approve guardianship?

    Held. Yes. Under New York State law, a Conservator must demonstrate by clear and convincing evidence that a conservetee is incapacitated and that a guardian is necessary to manage conservetee’s property and financial affairs in order for the Court to approve guardianship. Here Petitioner has failed to satisfy this standard. Contrary to appellant’s contention, the clear and convincing evidence in the hearing record establishes only that the Respondent suffers from certain functional limitations in speaking and writing, but not that he is likely to suffer harm because he is unable to provide for the management of his property, or that he is incapable of adequately understanding and appreciating the nature and consequences of his disabilities. Indeed, that Respondent named a power of attorney and approved his wife as signatory on certain bank accounts, the Respondent demonstrated that he appreciated his own handicaps to the extent that he developed a plan for assisting in management of
    his financial affairs without the need for a court appointed guardian. For these reasons, the ruling below is affirmed.

    Discussion. Under the New York state law regarding mental capacity (or “Mental Hygiene” as the statute calls it), Petitioner had to prove by clear and convincing evidence that Respondent was mentally inept in handling his affairs. The law had been recently enacted at the time of this case, but the Court here approved the lower court’s interpretation of the statute as containing this clear and convincing standard.


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