In the Matter
of the Application of Rosemary Camoia and THOMAS CAMOIA, Petitioners, For the
Appointment of a Guardian of the Person and Property of Rose Giaimo, An Alleged
Incapacitated Person.
|
100250/2012
Atty for petitioner: Irene Vitti, Esq.
Atty for respondent: Morton M. Avigdor, Esq.
Kathy J. King, J.
Petitioners, Rosemary Camoia ("Rosemary") and her husband, Thomas Camoia,
("Thomas") commenced this guardianship proceeding, pursuant to Article 81 of the
Mental Hygiene Law (MHL) by Order to Show Cause dated November 20, 2012,
seeking the appointment of a personal needs and property management guardian for 96
year old Rose [*2]Giaimo, ("Rose"), an Alleged
Incapacitated Person ("AIP"). Petitioners seek to be appointed co-guardians of the person
and property for the AIP. Rosemary Camoia is the daughter of the AIP. Petitioners
appear by their attorney, Irene Vitti, Esq.
Rosemary's twin brother, Vincent Giaimo, ("Vincent"), cross-moves for identical
relief on behalf of Rose by Order to Show Cause dated December 3, 2012, except that he
nominates himself to be the guardian, instead of petitioners. Cross-petitioner appears by
Lee Nigen, Esq., counsel of record, and Morton M. Avigdor, Esq., co-counsel.
The Court's review of this matter consisted of one home hearing and nine in-court
proceedings over a five month period, after which the Court reserved decision on the
petition and cross-petition for appointment of a guardian for Rose. [FN1]
Thereafter, on September 9, 2014, the court issued an interim decision and order,
appointing Randy S. Perskin, Esq. as guardian for the personal needs and property
management for Rose Giaimo. The Court now issues this memorandum decision.
Background and Procedural History
The petition and cross-petition appear to be precipitated by events arising from an
investigation by Adult Protective Services ("APS"). Petitioners contacted APS after
increasing concerns about the well-being of Rose due to her declining physical and
mental health, and her inability to effectively provide for her daily needs. At the time of
the investigation, Rose resided with Dominick in the home they jointly owned ("the
family home"). Cross-petitioner also resided in the family home. At the conclusion of the
APS investigation, Rose, together with her husband, left the family home and were
released into the care and custody of the Camoias. Petitioners contend that Rose is frail
and infirm, and Vincent leaves her to fend for herself until he returns home late in the
evening after work. Petitioners also allege that Vincent's penchant for hoarding papers,
books and other personal possessions creates an unsafe home environment by restricting
Rose's mobility and puts her at risk for falling. Petitioners contend that by working
together and utilizing their complementary skills in assisting individuals with special
needs, they can provide care for Rose. They contend that their application for
co-guardianship ensures continuity of care in the event one of them becomes unable to
serve in the future.
In opposition, the cross-petitioner, asserts that he was leaving for work at the
time of the APS investigation and did not have adequate time to prepare. He denies that
Dominick and Rose were removed from the family home by APS. Since the
investigation, Vincent contends that he has made arrangements for supervision of Rose
and that he has substantially renovated and remodeled the residence to facilitate Rose's
return home. Vincent produced a health care proxy dated March 21, 2010, and argues,
that his authority under the proxy has been thwarted by the petitioners who have, among
other things, given authorization for Rose to be treated with Seroquel, an anti-psychotic
drug. Additionally, cross-petitioner asserts that the Camoias unduly influenced Rose to
change healthcare plans, and diverted funds from Rose's individually held bank
accounts.
Vincent also contends that if petitioners' request for relief is granted, they
will seek to isolate him from Rose since his relationship with petitioners is estranged.
Finally, Vincent contends that he is better suited than petitioners to be guardian because
he has been taking care of all of Rose's general day to day care and personal
finances.
The Court appointed Roberto Lopez, Esq., Court Evaluator upon the signing
of the order to show cause of petitioners and cross-petitioner. At the commencement of
this proceeding, Rose was a patient at St. Joachaim Nursing Home ("St. Joachaim").
Upon discharge from St. Joachaim, it was the intent of petitioners to permanently place
Rose and Dominick into Sunrise at Mill Basin Assisted Living Facility ("Sunrise"),
however, Sunrise was undergoing renovations due to Hurricane Sandy. As a result,
following Rose's rehabilitation, she was discharged to petitioners' home where she joined
Dominick. Cross-petitioner disagreed with Rose's placement into Sunrise. Accordingly,
on January 11, 2013, the Court appointed Roberto Lopez, Esq., as Temporary Guardian
for Rose, on consent of the parties to, inter alia, assist in discharge planning.
On February 15, 2013, over cross-petitioner's objection, the Court issued a
decision and order [FN2]
granting the application of the temporary guardian to move Rose from petitioners' home
and relocate her to Sunrise during the pendency of the proceeding and final
determination on the appointment of a permanent guardian. The Court reasoned that
Sunrise offered the necessary personal and therapeutic attention for the high level of
care, necessitated by Rose's physical and mental condition. The Court considered, most
importantly, that Rose would be afforded the companionship and society of her husband
of 65 years, who would be also relocated to Sunrise. The cross-petitioner did not object
to Dominick's relocation to Sunrise.
The record highlights a proceeding that was both protracted and contentious
in nature. Cross-petitioner moved to appeal the Court's order declining to appoint counsel
for Rose Giaimo. (J. King, Order dated February 5, 2015). The Appellate Division,
Second Department dismissed cross-petitioner's motion for leave to appeal. By order
dated July 25, 2013, the Appellate Division, Second Department also denied
cross-petitioner's request for a stay of the proceeding pending an appeal of the Court's
February 15, 2013 order expanding the powers of the temporary guardian. Further, by the
conclusion of the proceedings, Morton Agvidor, Esq., had replaced, Lee Nigen, Esq., as
counsel of record for the cross-petitioner.
Based on the allegations raised by the parties in the petition and
cross-petition, various applications were made by the respective parties which resulted in
the issuance of numerous interim orders to ensure that Rose's rights were protected
during the pendency of the proceeding and to allow the Court appointed fiduciaries to
fully explore the issues raised by the petition and cross-petition. The orders directed
that:
All of the assets, bank accounts and other property belonging to Dominick Giaimo
and Rose Giaimo solely, jointly, or with any other person, be frozen and prohibited any
transfer, withdrawal or negotiation until further order of the court, except one HSBC
account entitled [*3]Dominick or Rose Giaimo to be used
only for the sole and express purpose of providing for the needs of Dominick and Rose
Giaimo (Orders, dated January 11, 2013 and February 6, 2013);
The Last Will and Testament of Dominick Giaimo and Rose Giaimo be deposited
with the Clerk of the Surrogates Court in Kings County by February 8, 2013 (Order,
dated February 5, 2013) ;
Roberto Lopez, Esq., as Court Evaluator, further investigate and review all financial
statements, information, papers, and documents of Rose Giaimo on her behalf, and
further investigate the source, contribution, ownership and transactions of all assets,
accounts and other property belonging to or naming in title Rose Giaimo, or Dominick
Giaimo, solely, jointly, or with any other person, legally or beneficially, including but not
limited to identified accounts and the accounts held by or for the benefit of Dominick
Giaimo and/or Rose Giaimo (Order, dated March 5, 2013);
Roberto Lopez, Esq., Court Evaluator and Temporary Guardian, have access to bank
account records in the name of Vincent and Rose Giaimo (Order, dated March 12, 2013);
Robert Lopez, Esq., as Temporary Guardian of the Property and Person of Rose
Giaimo, have the authorization to sign and file any and all tax returns and related
documents on behalf of Rose Giaimo, to communicate with the IRS or any other
governmental entity concerning local, state and/or federal taxes, and to obtain financial
and/or tax documents and to communicate with other persons or entities with respect to
taxes arising, concerning, or related to Rose Giaimo (Order, dated March 12, 2013); and
Rose Giaimo's medical records be sealed (Order, dated May 29, 2013).
The Court must now address three issues in this guardianship proceeding:
(1) whether Rose Giaimo is incapacitated; (2) whether a guardian should be appointed on
behalf of Rose Giaimo; and if so, (3) who should be appointed to serve as
guardian.
Petitioners' Direct
Case
Testimony of Petitioners
The petitioners both testified in support of the petition. Thomas and
Rosemary testified that Rose is frail and in declining health. According to petitioners,
Rose's health experienced a downward spiral once she had one of her kidneys removed
due to cancer about five years ago. They also testified that this time period also coincided
with Vincent's increased penchant for hoarding and that over time, cross-petitioner
created a living environment which put Rose at risk for harm. The [*4]first floor of the family home was filled with papers, bottles
of vitamins, and boxes; the upstairs bedrooms were filled with additional boxes and
clothes; and the basement, as well as the driveway and backyard had multiple barrels of
books.
The Camoias testified that due to the clutter, Rose, in her frail condition, was
particularly susceptible to falling. In 2011, Rose was hospitalized twice at Beth Israel,
due to falling in the home. According to the petitioners, Rose's first admission was due to
a hip fracture resulting from tripping over Vincent's bags. As a result, Rose had hip
surgery at Beth Israel, and upon discharge from the hospital she was admitted to
Shorefront Rehabilitation ("Shorefront") for physical therapy.
Petitioners also noted that during this time Rose's mental condition was
deteriorating. Shorefront contacted them one night to advise that Rose had a screaming
and yelling episode. After consulting with Rosemary, Rose's physician prescribed
Seroquel, an anti-psychotic, to calm her down.
Petitioners' also testified about the effect Vincent's decision-making had on
Rose when she returned home from Shorefront. Vincent stopped Rose from taking
Seroquel due to what he described as a "mortality risk." According to Rosemary, without
Seroquel, Rose became agitated, confused, and violent, prompting Dominick to call
Thomas and Rosemary, a few times a week for assistance to calm Rose down.
When Rose returned to Vincent's care upon discharge, she had no home care
assistance and had to traverse the stairs by herself in order to get to her bedroom and the
bathroom on the second floor. Three days after she was discharged from Shorefront,
Rose fell, again, this time falling on the stairs. Despite petitioners repeated requests,
Vincent, citing money issues, refused to install a bathroom on the first floor where Rose
spent the majority of her time. Additionally, Vincent refused to place a hospital bed in
Rose's room, which had been ordered as part of Rose's discharge plan.
The electric hospital bed remained on the first floor of the house, and was
not moved into Rose's bedroom. About three to four weeks after delivery, the bed
company contacted Thomas for a co-payment, however, Thomas indicated that Vincent
disagreed with the bed being moved upstairs and would not make the co-payment.
Thomas, in turn, called the company and had them pick up the bed. Thomas described
Rose's bed on the second floor, as "broken" with the "springs sticking out."
The Camoias' testified that around November 2011, Rose was, again,
hospitalized at Beth Israel, after Vincent called to tell them that Rose had fallen at home.
The Camoias called an ambulance because Rose was on the floor when they arrived, and
Vincent had not called for assistance. After Rose's second discharge from Beth Israel,
Rose stayed with the Camoias. Rosemary advised Vincent that the AIP was not returning
to the family home until a bathroom was installed on the first floor. A bathroom was
finally installed in 2011, and Rose returned home. Around this time, Vincent also
installed a chair lift which the Camoias testified was essentially useless because neither
Rose nor her husband were taught how to work the chair lift.
Thomas testified that generally Rose sits in a chair for most of the day, dressed in a
hospital gown without undergarments, except for her adult diaper. He stated that, at
times, Rose had an odor. While he and Rosemary provided food for Rose and her
husband, they essentially ate one meal a day, if at all. Prior to leaving for work, Vincent
would put a plate of food in the oven for both Rose and Dominick to eat. By the end of
the day, the food was not edible.
The Camoias' testified that they called APS in October 2012 due to a
concern about Rose's welfare. During a weekly home visit, they observed that Rose had a
bruise under her right eye and that Rose's broken glasses were on the floor. When asked
for an explanation about Rose's condition, Vincent was unresponsive. The Camoias'
indicated that this was the second call to APS, the first call having been made in March
2011, when they called APS due to cluttered living conditions and Rose's repeated falls.
The Camoias' testified that APS closed the 2011 case based on Vincent's representations
that he would clean up, get help for Rose and her husband, and eventually retire.
However, Vincent failed to live up to any of these promises.
The Camoias' stated that on October 4, 2012, APS Caseworker, Diana Blue,
conducted a thorough investigation of the Giaimo family home which included an
inspection of the basement, first, and second floor. Ms. Blue, called APS Nurse Patricia
Butka who went to the Giaimo home to examine Rose and Dominick. At the conclusion
of the investigation by APS, petitioners brought both Rose and Dominick to their home.
Rosemary indicated that Rose was in a highly agitated state when she was released to
them, and that they called Dr. Neuhauser, Rose's treating M.D. at Beth Israel, who again
prescribed Seroquel. Rosemary acknowledged that while Seroquel has some side effects,
Rose's dementia diagnosis was confirmed by five physicians. Therefore, she was
comfortable with her mother receiving a mild dose of Seroquel since Rose responded
very well to the medication.
Thereafter, based on Dr. Neuhauser's recommendation, on October 7, 2012,
Rose was admitted to Beth Israel due to extreme agitation. On October 12, 2012, Rose
was discharged from Beth Israel and transferred to Sunrise. Rosemary recounted that
Dominick visited Sunrise over a period of five years, was impressed with the facility and
was desirous of living there with Rose. Rosemary testified that she was impressed that
Sunrise had a dedicated unit for dementia patients and offered varied activities that both
Rose and her husband could enjoy. Rosemary further testified that she carried out her
father's wishes by assisting with Rose's transfer to Sunrise.
Rose was again admitted to Beth Israel on October 31, 2012, and diagnosed
with an altered mental state. The Camoias' testified that Rose was unable to return to
Sunrise due to damage by Hurricane Sandy, and upon discharge from Beth Israel, Rose
was temporarily transferred to St. Joachaim, and then to petitioners home.
On cross-examination, Thomas acknowledged that he did not seek help
sooner regarding the cluttered condition in the Giaimo family home that began around
2000 nor did he seek assistance regarding Rose's decline in health since it was
"Dominick's house" and it was not "his place" to bring anyone in the house. Also, he
explained that Vincent did not want anyone in the house. Thomas indicated that he did
not pay for the installation of the first floor bathroom, however, he testified that he paid
to furnish the Giaimos' home, and regularly bought food and other supplies. Thomas
acknowledged that Vincent filled Rose's prescriptions. Thomas and Rosemary also
conceded that Rose had not been removed from her home by APS, but had left
voluntarily.
Contrary to the cross-petitioner's assertions, Thomas denied that he helped
Rose disenroll from Health Insurance Plan ("HIP") as a primary insurance carrier, and
re-enroll with Medicare as a primary insurance carrier and United Healthcare as a
secondary insurance carrier. He testified that Dominick decided to change health care
providers due to the difficulty in procuring medication from HIP at the time Rose was
released to the Camoias' on October 4, 2012. Additionally, Thomas explained to
Dominick that he would get better medical care with United Healthcare because unlike
[*5]providers accepting HIP, United Healthcare doctors
make house visits. Thomas further testified that Dominick executed a change of
enrollment form and then directed Rose to sign the form. Thomas acknowledged that
Rose may not have known what she was signing.
Thomas also acknowledged taking Dominick to the bank to assist with
certain financial transactions, however, he testified that Rose's bankbooks were in
Vincent's possession and denied personally engaging in transactions involving her
accounts or any accounts jointly held with her husband. Rosemary testified that all of
Rose's accounts, except, perhaps one, are controlled by Vincent.
Thomas and Rosemary both testified as to their ability and qualifications to
serve as a guardian for Rose. As retired special education teachers, they indicated that
they have extensive training in the care of special needs individuals. Thomas, at one time,
was the care provider for his mother and son, both of whom passed away. Both
petitioners testified that they completed the Article 81 guardianship training course
on-line and received their respective certificates. Additionally, Thomas, as a former
business owner, testified that he has 20 years' experience in financial management.
In support of their prima facie case, petitioners also produced representatives
from APS, together with individuals charged with the care of Rose at St. Joachim, Beth
Israel and Sunrise, respectively.
Testimony of Adult Protective Services
APS Caseworker Diana Blue stated that she went to the Giaimo family home
on October 2, 2012, to conduct an investigation based on a complaint that petitioners
called into the agency. She indicated that Vincent let her into the house upon her arrival.
Rose was sitting in a chair and described her to be confused and "out of it." She observed
that Rose had an old bruise underneath her right eye. She testified that the home was in
squalor and filled with books and papers, which left no room to move around. According
to Caseworker Blue, she explained to Vincent that the home environment was not
conducive to elderly individuals living in the home, and that Rose, along with her
husband, required home care. In turn, Vincent responded by yelling and screaming at Ms.
Blue and, at the same time, stated that he was not going to pay for home care. Ms. Blue
recommended to her office that a medical professional be brought in to consult on the
case, and returned to the Giaimo home on October 4, 2012, with Ms. Butka. Ms. Blue
testified that Dominick wanted to leave the home to be with the petitioners, both of
whom were present, during this second visit. Ms. Blue further testified that Rose
following her husband's lead, walked out of her home and was put in the custody of
petitioners. Ms. Blue indicated that she then visited petitioners' home and found it to be
clean and safe and closed the case file based on her finding.
Patricia Butka, R.N., testified that she is a nurse clinician for APS and that
she performed an assessment of Rose Giaimo on October 4, 2012, accompanied by
Caseworker Diana Blue, who had requested the assessment. Ms. Butka testified that Rose
was confused and while Rose knew the names of her daughter and son, she did not know
the time, date, or her address. Ms. Butka found that Rose was in a highly agitated state.
Ms. Butka noted that Rose was not taking any medications to treat her mental condition,
and indicated that if she had been taking medication she would have been in a more
relaxed state. Physically, she indicated that Rose had a bruise underneath her right eye
that appeared to be resolving, and stated that the injury was consistent with a fall. Ms.
Butka [*6]was concerned that the AIP could wander
based on her confused state and recommended to Vincent that 24/7 home care be
obtained. Additionally, she stated that there were several risk factors in the Giaimo home
which created risk/fall issues. She cited taping on the floor, clutter, and Rose's inability to
operate the chairlift and/or navigate the stairs to the second floor. She observed that the
clutter was so packed in some areas of the house that narrow walkways were carved out
so that Rose could maneuver. She also stated that, Rose's box spring and mattress were
not the same size. Consistent with Caseworker Blue's testimony, Ms. Butka explained
that Rose followed Dominick when he walked out of their family home in order to live
with the Camoias. Ms. Butka testified that she and Ms. Blue followed up on the case at
the Camoia home, which she described as "meticulously beautiful." Rose, however, was
still in an agitated state, and Ms. Butka consulted a physician who prescribed Haldol for
Rose, which calmed her agitation.
Testimony of Mark Roberts
Mark Roberts testified that he is responsible for discharge planning at Beth
Israel, and that he was assigned to Rose's case in October 2011 and, again, in October
2012. Upon admission, Rose was given intravenous fluid for dehydration and prescribed
Seroquel for her altered mental state. She was stabilized in one day. Since Rose's records
indicated that there was APS involvement and an unsafe condition in the home, Mr.
Roberts' role was to ensure that Rose was discharged to the safest environment. Thus, he
coordinated a discharge plan with Rose's social worker, attending physician, and the
hospital's chief medical officer. As a result, it was determined that Rose's physical
condition necessitated further nursing home rehabilitation and home care. According to
Mr. Roberts, the planning process was prolonged due to Medicare regulations, combined
with a difference in opinion between the hospital and Vincent who expressed his desire
to have Rose return home with the assistance of Nannies for Grannies, a home health
care agency. By contrast, Beth Israel's discharge plan consisted of transferring Rose to a
skilled nursing facility because she had a full catheter and was still receiving total care,
which she could not receive at home. While Mr. Roberts acknowledged that Vincent is
Rose's health care proxy, he indicated that Vincent's wishes were not adhered to because
Rose would be at risk if she were discharged home.
Mr. Roberts further testified that Vincent did not have an appreciation of the
level of care required for his mother because he, together with his attorney, persisted in
their efforts to have Rose return home against medical advice ("AMA"), and threatened
to sign her out "AMA." He recalled that he spoke with Vincent and his attorney at least
twice, and that Vincent's attorney kept emailing the legal department to have Rose
discharged to the family home. While Dominick expressed a desire for his wife to return
home, he accepted Mr. Robert's recommendation to place Rose in St. Joachim for
sub-acute rehabilitation, as an alternative to discharge to the home.
Testimony of Karen Johnson
Karen Johnson, Rose's social worker at St. Joachim, testified that she has 12
years of experience working with psychiatric patients. She indicated that upon admission
to St. Joachim on January 19, 2013, Rose was very agitated, screaming and hard to
handle. Ms. Johnson also indicated that Rose's health care proxy designated Vincent as
primary agent, and Rosemary as a stand-by [*7]agent. On
cross examination, she indicated that pursuant to St. Joachim's policy, Rosemary was
consulted as a designated family representative since she accompanied Rose to the
hospital at admission.
Upon examination at the hospital, it was determined that Rose was confused
and symptomatic with dementia. Ms. Johnson indicated after Rose was prescribed
Seroquel, she adapted well to her surroundings, activities, rehabilitation, and family. She
recounted Vincent's request to discontinue Seroquel. When she refused to comply with
his request, Vincent directed her to call his attorney who indicated that she would "suffer
the consequences" if Vincent was not allowed to make this decision. Ms. Johnson
testified that Rose adjusted well to Seroquel, and opined that if Rose stopped taking
Seroquel she would likely revert back to her pre-admission condition.
Testimony of Angie Giorlando
Angie Giorlando, Director of Community Relations at Sunrise, testified that
her role is to provide placement for residents at Sunrise. In Rose's case, Ms. Giolrando
indicated that Rose was placed in the "memory care" unit at Sunrise based on an
assessment by Sunrise's medical staff, and provided with 24 hour care. Additionally, Ms.
Giorlando testified that Sunrise has the capability of providing Rose with a life care plan
which included the high level of care that Rose requires.
Cross-Petitioner's Direct Case
Testimony of Cross-Petitioner
Vincent Giaimo testified that he has resided with his parents, Rose and Dominick
Giaimo, at 1157 East 29th Street, Brooklyn, NY for his entire life and that he provided
care for both of them through October 4, 2012, when they left to live with petitioners. He
stated that APS did not remove Rose from the family home. Vincent also testified that he
maintained the family home and managed the finances of his parents. Vincent stated that
he was designated as Rose's health care agent in 2010 during her rehabilitation at
Shorefront. Vincent has college and graduate degrees and has served in the United States
Army Reserves, Dental Corps. Vincent testified that his training in dental and medical
procedures enabled him to provide both his parents with assistance.
He testified that now that Rose is at Sunrise he visits her almost every day. By
contrast, he testified that when Rose was at petitioners' house he had been barred from
seeing her on at least two occasions.
Vincent described Rose as having dementia of a mild type, but
acknowledged that
Dr. Newhauser of Beth Israel, as well as the psychiatrist at St. Joachim had prescribed
Seroquel for Rose, based on a diagnosis of dementia and agitation, and dementia and
psychosis, respectively. Vincent stated that Rose was presently treated with Seroquel at
Sunrise, however, he was unaware of her diagnosis. He did not agree with the use of
Seroquel to treat Rose's dementia, since his consultations with two psychiatrists, together
with his independent research of Seroquel showed that it had negative side effects, which
included lethargy, drowsiness, and unresponsiveness. Vincent testified that Rose was
vibrant, witty, and responsive when she was not taking Seroquel and that he wanted to
obtain a second opinion to evaluate the necessity of Rose taking Seroquel. Vincent
further testified that even though Sunrise has a copy of his healthcare proxy on file, the
facility did not [*8]consult him regarding the use of
Seroquel. He acknowledged that he stopped Rose's disenrollment from HIP from being
processed, once it was brought to his attention.
Vincent further testified that he did not agree with Rose's placement in the
dementia ward at Sunrise. If appointed guardian, he indicated that he would keep her at
home with all the necessary therapeutic and medical services. Additionally, he would
refer Rose to a geriatric psychiatrist to evaluate her for dementia with a view towards
getting alternative medication for her condition.
On cross-examination, Vincent acknowledged that he works full time, and
leaves for work early in the afternoon and returns home by 12 midnight to 1 a.m. He
stated that he would leave Rose's meals in the oven, and Dominick would assist her. He
testified that Rose did not need assistance with bathing, personal hygiene, or toileting.
Out of a concern for Rose's safety, he acknowledged installing handicapped accessible
hand bars on the first three steps of the stairs, by the toilet, and in the shower.
He admitted that the condition of the house at one time did not constitute a
safe environment for Rose, and that his mother had fallen on numerous occasions. To
remedy the dangerous conditions, he retained the services of a geriatric resource
consultant to ensure that the house was safe and permitted Rose to be mobile.
Additionally, he indicated that he made an effort to clear the clutter in the household and
eliminate any obvious danger.
Vincent testified that in the months leading up to the APS investigation,
Rose was able to get up and down the stairs to her bedroom on the second floor without
assistance, and that Rose did not use the chair lift because she did not need it. Vincent
further testified that Rose did not suffer from dementia, and that she is presently aware
that she is not in the family home and wants to return home. While acknowledging that
Rose appeared to be eating better at Sunrise, Vincent described her as depressed. He
claimed that the therapeutic treatments and programs designed for patients like Rose
were ineffective. Vincent did not think that Rose was improving at Sunrise. Vincent
maintained that if appointed guardian, his plan of care contemplated the least restrictive
intervention under the law. In this regard, his paramount concern was returning his
mother to the community. In the event that his father was not desirous of returning home,
Vincent, as guardian, testified that he would be willing to separate husband and
wife.
In support of his prima facie case, Vincent produced Dr. Paul
Rosenstock, Marianne Boyango, and Alison Schwartz, Director of the Alzheimer's Unit
at Sunrise.[FN3]
Testimony of Dr. Rosenstock
Dr. Paul Rosenstock, a board certified geriatrician testified that he had not
examined Rose and that his opinion was based solely on his review of Rose's medical
records at Sunrise. He testified that the notes of Rose's treating physician contained
contradictions. While the notes contained a diagnosis of dementia, Rose's neurological
and psychiatric examination results did not support such a finding. Instead, the notes
indicated that Rose is alert and oriented in many instances. However, he conceded that a
person can be alert and still suffer from dementia. While he acknowledged that Rose was
being treated with Seroquel, he opined that such treatment was inappropriate with a
dementia diagnosis, and is more appropriately used with a patient presenting [*9]with agitation or depression. Additionally, he stated that
since Seroquel is a psychotropic medication, patients are required to be weaned off the
medication over time. He also stated that Cipro, an antibiotic prescribed for Rose's
urinary tract infection at Sunrise, increased the level of Seroquel in the bloodstream. On
cross-examination, however, Dr. Rosenstock stated that he was unaware that Rose had
been prescribed Seroquel at Beth Israel, Shorefront and St. Joachim, and also
acknowledged that there was no showing in the medical record that Rose had suffered
adverse effects from taking Seroquel and Cipro together.
Dr. Rosenstock also opined that Rose's continued stay in an institutional
setting would be deleterious and indicated that returning home under the care of a family
member or aide would be preferable for an elderly person, like Rose, due to the
familiarity and comfort level of being at home.
Testimony of Marianne Boyango
Marianne Boyango, Executive Director at Sunrise Mill Basin, testified that
she is responsible for operations at Sunrise, and in 2011 she entered into a resident living
agreement signed by Rose. According to Ms. Boyango, upon Rose's admission to Sunrise
in 2011, she was unaware that Rose had a health care proxy. She stated that the proxy
would have been included in Rose's file, if the document was provided to the facility.
Boyango further testified that upon Rose's second admission to Sunrise on February 19,
2013,
Ms. Giaimo was provided with a copy of her resident living agreement, which was not
signed by her, but rather by her court-appointed temporary guardian, Roberto Lopez,
Esq.
Court Evaluator's Report
Roberto Lopez, Esq., the Court Evaluator, conducted an investigation regarding the
allegations contained in the petition and cross-petition. He interviewed the AIP, and at
their meeting, he attempted to explain to her that she had a right to an attorney, however,
she was unable to hold a conversation or respond to questions appropriately. The Court
Evaluator found that Rose's behavior during her interview was consistent with her
medical records which stated that Rose suffers from dementia, and that she had been
treated with a low dosage of Seroquel daily.
He also interviewed the petitioners and cross-petitioner, the AIP's husband,
as well as Rose's primary physician, treating psychiatrist, attending nurse, social worker
at St. Joachim, and APS Caseworker, Ms. Blue. The findings of the Court Evaluator
were incorporated in an initial report dated December 17, 2012, and a supplemental
report dated January 10, 2013. Both reports were submitted into evidence. Mr. Lopez
also testified at the hearing.
The initial report cited a conflict between Vincent and the Camoias on a number of
issues. Prior to Rose's hospitalization, Vincent wanted to continue to provide care
without the assistance of home health attendants; petitioners maintained that Rose could
not remain home without home health attendants. Vincent did not want Rose to reside at
Sunrise; on the other hand, petitioners wanted to carry out Dominick's wishes to reside
with his wife at Sunrise. Vincent did not want to utilize Rose's resources to pay for care
and renovation of the family home to conform to Rose's changing needs, while
petitioners desired to utilize the AIP's resources to provide care and [*10]sustenance for Rose. Vincent wanted to discontinue
Seroquel treatment, while petitioners wanted to continue Rose's use of Seroquel.
The report indicated that Rose had assets in excess of $1,000,000.00 which
are held in her name individually, and, jointly, with her husband or Vincent. According
to the report, petitioners and cross-petitioner raise allegations of undue influence as to
each other regarding Rose's assets. However, no conclusive findings regarding these
allegations were made, instead, the court evaluator indicated that further investigation is
warranted.
The Court Evaluator found that Rose had physical, mental, and cognitive
deficits, which warranted the appointment of a guardian of the personal needs and
property management for an indefinite period of time. The Court Evaluator also
recommended that petitioners' prayer for relief be granted in its entirety, including the
power to investigate any misappropriation or mismanagement of the AIP's assets, and the
appointment of Rosemary and Thomas Camoia as co-guardians.
The supplemental court evaluator's report was prepared in anticipation of
Rose's discharge from St. Joachim. Rose's health care proxy dated March 21, 2010,
designating Vincent as agent was annexed to the report. Revocation of any and all
existing health care proxies and the appointment of a temporary guardian were
recommended in order to coordinate Rose's discharge, placement and continuity of care.
This recommendation was prompted by Vincent's attempt to act as Rose's health care
agent by ordering the nursing home staff to discontinue Seroquel contrary to doctor's
orders.
The court evaluator also indicated that the appointment of a temporary
guardian with the consent of all parties would eliminate the need under MHL
§81.10 for the Court to appoint counsel for the AIP since Rose is unable to request
counsel, unable to contest the petition, cannot either consent to or oppose the
appointment of a guardian, cannot consent or oppose placement at a facility versus her
home and cannot consent or oppose any medical treatment needed. Significantly, the
report noted that no conflict existed between the Court Evaluator's role and the advocacy
needs of the AIP under MHL §81.10 [c][6].
Discussion
Under New York law, before appointing a guardian, the Court must find the AIP
functionally incapacitated, unable to appreciate her functional limitations, and without
sufficient advanced directives or other measures in place to safeguard her person and/or
property. (MHL §81.02).
The evidence adduced at the hearing establishes that Rose was initially
diagnosed with senile dementia in 2007 by her treating physicians, Preferred Health
Partners. Subsequently, Rose's medical records from 2010 through 2013, which include
admissions to Beth Israel, Shorefront, and Sunrise, establish that she was consistently
diagnosed with dementia, and that, her condition had progressively worsened to include
dementia with psychosis and/or agitated behavior symptoms. She also suffers from
numerous physical illnesses including hypertension, congestive heart failure, enlarged
heart, and ulcers of the foot. She is wheelchair bound, requiring 24-hour care and
assistance with activities of daily living. As a result, she cannot make healthcare or
financial decisions. There is no indication from Rose's medical providers or from the
medical records that Rose has any prognosis for recovery. In this regard, the Court
Evaluator's report indicates that Rose is a person in need of a guardian for the personal
needs and property management for an indefinite period.
Accordingly, the Court concludes that Rose Giaimo is incapacitated within
the meaning of Article 81 of the Mental Hygiene Law, is likely to suffer harm because of
the inability to provide for [*11]her personal needs and
property management and cannot adequately understand and appreciate the nature and
consequences of her actions due to such inability. (MHL §81.02[b][1] and [2]). In
reaching this determination, the Court gives significant weight to the Court Evaluator's
report. (MHL §81.02 [a]). The Court also considered Rose's functional level and
functional limitations in accordance with MHL §81.02[c] and [d], which the Court
had the opportunity to observe firsthand at the home of petitioners. Consistent with the
Court Evaluator's findings, the Court found that Rose was unresponsive when addressed
and was unable to hold a conversation.
While this Court has made a determination of incapacity, the Court must still
consider whether the health care proxy dated March 21, 2010, which appoints Vincent as
Rose's health care agent, negates the need for the appointment of a guardian. "In deciding
whether the appointment of [a guardian] is necessary, the court [is required] to consider
the court evaluator's report (MHL §81.02 [a]) and the sufficiency and reliability of
available resources (MHL §81.02 [a][2]) which may be available to satisfy the AIP's
personal needs and property management without the need for a guardian." Mental
Hygiene Law §81.03 [e] defines "available resources" as: "powers of attorney,
health care proxies " (See, In re G.S., 17 Misc 3d 303 [Sup. Ct. 2007]). In the
instant case, the Court Evaluator's report recommends that a personal needs guardian is
warranted, notwithstanding the March 21, 2010 health care proxy.
For the purposes of Public Health Law §2981, every adult is presumed
competent to appoint a health care agent. (Public Health Law §2981[1][b]). In light
of the presumption of competency, the burden of proving mental incompetence is upon
the party asserting it. (See, Smith v. Comas, 173 AD2d 535 [2d Dept 1991],
citing Feiden v. Feiden, 151 AD2d 889 [3d Dept 1989]; Matter of Obermeier,
150 AD2d 863, 864 [3d Dept 1989]). However, where there is medical evidence of
mental illness or a mental defect, the burden shifts to the opposing party to prove by clear
and convincing evidence that the person executing the document in question possessed
the requisite mental capacity. (See, Hubbard v. Gatz, 130 AD2d 622, 623 [2d
Dept 1987]; see also Matter of Shapiro, NYLJ, Apr. 19, 2001, at 25, col 1). Here,
Rose's medical records conclusively establish that she was diagnosed with dementia at
least three years prior to the time the health care proxy was executed on March 21, 2010,
thus, rebutting the presumption of competency. Cross-petitioner fails to demonstrate that
Rose was competent at the time she signed the health care proxy. Further, neither of the
two witnesses to the health care proxy were produced by cross-petitioner to attest to
Rose's competency. Based on these circumstances, the Court finds that Rose lacked the
mental capacity to execute the March 21, 2010 health care proxy, and the proxy is,
hereby, vacated.[FN4]
In regards to Rose's finances, the record establishes that Rose is unable to
manage her financial and/or personal affairs. The allegations contained in the petition
and cross-petition resulted in the freezing of Rose's assets and an investigation into
alleged undue influence and misappropriation. While the Court Evaluator's reports were
inconclusive as to the allegations raised in the petition and cross-petition about Rose's
finances, the report recommended further investigation by the prospective guardian.
For these reasons, the Court finds that Rose Giaimo is a person in need of a
guardian to protect her personal needs and property interests pursuant to Article 81 of the
Mental Hygiene Law.
It is important to note that, contrary to the contentions of cross-petitioner, the
appointment of a guardian in the instant case, in all respects, complies with the
procedural protections afforded by Article 81 of the Mental Hygiene Law. A Court
Evaluator was appointed who prepared a written report and recommendation regarding
whether or not a guardian should be appointed (MHL §81.09[c][5]); the parties
consented, in court, to the appointment of a temporary guardian (who is also an attorney)
for Rose during the pendency of the proceeding; and an extensive hearing was conducted
on the record. (MHL §§81.02 [b], 81.11, and 81.15[b]). While the Court
declined to appoint counsel for Rose, the appointment of counsel is not mandatory in
every guardianship case. In the instant case, none of the circumstances warranting
mandatory appointment of counsel as set forth in MHL §81.10 were present.
Namely, the AIP did not request the appointment of counsel; the AIP did not contest the
petition; the AIP resided in a nursing home at the time of the petition; the petition did not
allege the need for any major medical or dental treatment, nor request the appointment of
a temporary guardian; and no conflict existed between the Court Evaluator's role and the
advocacy needs of the AIP. Thus, the Court in its discretion determined that the
appointment of counsel for the AIP was not warranted (J. King, Order dated February 5,
2013), and, thus, Rose's due process rights were not violated.
The Court is now presented with the issue of appointing a guardian pursuant
to MHL §81.19 [d].
At the outset, the Court notes that both petitioners and cross-petitioner
possess the requisite educational, professional and business experience to qualify as a
guardian. They also demonstrate a genuine concern for Rose's well-being. To that end,
petitioners have utilized their personal financial resources to provide supplemental
provisions and necessities for the AIP. They also spend considerable time monitoring the
AIP and serve as "stand-by" caregivers, supplementing the care provided by Vincent.
While the record does not indicate to what extent, the AIP, if at all, communicated her
desires prior to her declining health, it is clear that the petitioners when assisting Rose,
factored in the wishes of her late husband, Dominick Giaimo, who identified Sunrise as
an assisted living facility that could provide the high level of quality care Rose requires
over the long term. In that regard, the record shows that Rose has adapted well to the care
and treatment provided in Sunrise's dedicated dementia unit. On the same note, Vincent,
has lived with Rose his entire life. He has managed Rose's personal finances, and in fact,
is a joint account holder with her on several bank accounts. Vincent has also provided
day to day care for Rose to the best of his ability, which includes taking Rose for medical
visits and obtaining medication. However, the record is devoid of any evidence to
support Vincent's contention that "[he] has always been the preferred sibling" to care for
Rose. (Cross-Petition ¶ 24).
While the responsibilities undertaken by petitioners and cross-petitioner on
behalf of the AIP are certainly factors to be considered when determining whether an
individual is qualified to serve as guardian, these factors, standing alone, are not
dispositive on this issue.
In the case at bar, the evidence overwhelmingly establishes that the level of
care provided for Rose at the family home was not commensurate with her needs.
Although APS did not record an affirmative finding against Vincent as Rose's care
provider, the evidence shows that the condition [*12]of
the family home put Rose at risk for harm, and served as a basis for Rose to be placed in
the custody of petitioners. At the time of APS' investigation, the Giaimo family home
was unquestionably in a state of squalor and disrepair. Petitioners proffered numerous
photographs of the family home which depicted a clutter-filled environment
characteristic of "hoarding." Similarly, APS described the home environment as
"cluttered" and indicated that there was no room for Rose to move. APS also cited that
Rose did not receive proper care in the family home. Vincent does not deny that these
conditions existed, instead he emphasizes that since the commencement of this
proceeding he has consulted "Nannies for Grannies," for home care services, "Doctors on
Call," for physician visits, and "Meals on Wheels," for Rose's nutritional needs. Vincent
also proffered photographs to demonstrate that he has performed a substantial
re-organization and clean-up of the family home. While such corrective measures are
commendable, Vincent did not consider or execute these measures until after the APS
investigation. Thus, the Court questions whether these corrective measures were made in
good faith and in Rose's best interests, or whether Vincent was motivated by his own
self-interest in seeking Rose's return to the family home, especially since his request for
relief seeks Rose's return "with or without Dominick." Although Rose's return home with
Dominick is a moot issue based on Dominick's unfortunate demise, it should be noted
that Vincent, unlike petitioners, did not consider the integral influence that Dominick had
on Rose's ability to thrive.
The Court also notes that Vincent resisted the implementation of Rose's
treatment plan, particularly her treatment with Seroquel, which resulted in the
appointment of a temporary guardian. Vincent's objection to Rose's use of Seroquel is
unreasonable and unjustifiable in light of the fact that Dr. Rosenstock never personally
consulted with or examined Rose. By contrast, Rose's treating physicians from at least
four medical facilities opined that Seroquel had a stabilizing effect on Rose. Finally,
Vincent's use of bullying tactics, individually and through his attorney, to compel Rose's
medical providers to adhere to his wishes contrary to doctor's orders is patently
improper.
The Court finds that Vincent, while well intended, lacks the temperament to
be a court appointed guardian. Additionally, Vincent has an inability to objectively assess
the AIP's circumstances to execute any of the powers that would be granted to a guardian
under Article 81 of the Mental Hygiene Law.
It is well settled that the appointment of a family member as guardian for an
incapacitated person is preferable, however it is well within the court's discretion to
appoint an outsider upon a determination that available family members are, in some
way, not suitable. (MHL §81.19 [a][1], [c], [d]; see Matter of Ardelia R., 28
AD3d 485 [2d Dept 2006]; Matter of Joseph V., 307 AD2d 469 [3d Dept 2003];911;911
cf. Matter of Nellie G., 38 AD3d 547 [2d Dept 2007]). Consistent with this
statutory mandate, the case law has established that in a guardianship proceeding,
"strangers will not be appointed [guardian] of the person or property of the incompetent,
unless it is impossible to find within the family circle, or their nominees, one who is
qualified to serve". (See, Matter of Ardelia R., 28 AD3d 485 [2d Dept 2006];
Matter of Chase, 264 AD2d 330, 331 [1d Dept 1999], quoting Matter of Dietz,
247 App. Div. 366, 367 [1d Dept 2006]).
In the instant case, petitioners ostensibly meet the qualifications to serve as
guardian, since the allegations of undue influence asserted by Vincent remain
unsubstantiated. However, since Rose requires a guardianship of the person and property
for an indefinite duration, it is clear that the on-going conflict between petitioners and
cross-petitioner regarding the care and treatment of the AIP [*13]weigh against appointing petitioners. (Matter of Ollie D.,
30 AD3d 599 [2d Dept 2006]; see also In re Karen H.M., 45 Misc 3d 858 [2014
NY Slip. Op. 24255]; Matter of Judas, 74 AD2d 874 [2d Dept 1980]; Matter of Lyon, 52
AD2d 847 [2d Dept 1976]; Matter of Kustka, 163 Misc 2d 694 [NY Sup. Dec. 23,
1994]; Matter of Schunk, 136 AD2d 904 [1d Dept 1988]; Matter of Weisman, 112 AD2d
871 [1d Dept 1985]). In the twilight of her golden years, Rose could only benefit from
having the society of the Camoias and Vincent, absent the conflict and acrimony that has
burdened this familial relationship in recent years, and which could potentially continue
should the Court appoint the petitioners.
Since the Court's paramount concern in an Article 81 proceeding is the best
interests of the incapacitated person, the Court finds that it would be in Rose's best
interests to appoint an independent guardian consistent with the Court's September 9,
2014 interim decision. (See, In re Cox, 47 Misc 3d 1211 (A), 2015 NY Slip Op.
50550 (U), quoting from Seth Rubenstein P.C. v. Ganea, 41 AD3d 54 [2d Dept
2007]).
Accordingly, based on the foregoing, it is hereby,
ORDERED, that the healthcare proxy dated, March 21, 2010 is vacated; and
it is further
ORDERED, that the petition dated November 20, 2012 and cross-petition dated
December 3, 2012 are granted to the extent that the Court finds that Rose Giaimo is an
incapacitated person within the meaning of Article 81 of the Mental Hygiene Law, and
denied in all other respects; and it is further
ORDERED, that Randy S. Perskin, Esq. of 20 River Terrance, No.22, New
York, New York 10282, telephone number (212) 600-4441, is hereby appointed
Guardian of the Personal Needs and Property Management of Rose Giaimo consistent
with Interim Order dated September 9, 2014 with all powers contained in MHL
§§81.22 and 81.21; and it is further
ORDERED, that temporary restraining orders dated January 11, 2013 and February
6, 2013 freezing all of the assets, bank accounts, and other property belonging to
Dominick Giaimo and Rose Giaimo solely, jointly or with any other person and
prohibiting the transfer, withdrawal or negotiation of said assets until further order of the
Court is vacated forthwith; and it is further
ORDERED, that Roberto Lopez, Esq., as Court Evaluator and Temporary Guardian,
Irene Vitti, Esq. as attorney for petitioners, and Morton Agvidor, Esq. as attorney for
cross-petitioner submit their respective affirmations of services within 10 days after the
date hereof; and it is further
ORDERED, that Randy S. Perskin, Esq. settle Order and Judgment within 15 days
after the date hereof.
This constitutes the Decision and Order of the Court.ENTER
_______________________________HON. KATHY J. KING
J.S.C.
Footnotes
Footnote 1:Both petitioners and
cross-petitioner also commenced a companion case (Index No. 100249/12) for the
appointment of a guardian pursuant to Article 81 for Dominick Giaimo ("Dominick"),
the AIP's husband and the father of Rosemary and Vincent. At the conclusion of the
hearing, Vincent's cross-petition to be appointed guardian of Dominick was denied. The
petition of Rosemary and Thomas Camoia was granted upon Dominick's consent,
wherein the Camoias were appointed his co-guardians. Dominick passed away on
January 1, 2015.
Footnote 2:By Order to Show Cause
dated February 1, 2013, Roberto Lopez, Esq., as Temporary Guardian of Rose Giaimo
moved for an order expanding his powers as Temporary Guardian to relocate, return, and
place Rose into Sunrise. Affirmations of support for the requested relief were submitted
by the Temporary Guardian and Fern Finkel, Esq., Dominick's court appointed counsel.
Cross-Petitioner submitted opposition to the motion.
Footnote 3:Ms. Schwartz's
testimony is not probative regarding the issues to be decided by the Court and therefore
is not considered in his decision.
Footnote 4:The Court Evaluator
recommends revocation of the health care proxy, however, based on the Court's finding,
the Court shall not consider the merits of this recommendation.