A petition was filed by S. B. , pursuant to Article 81 of the Mental Hygiene Law, on April 25, 2017, seeking the appointment of a guardian of the person and property of her mother, E. K. , an Alleged Incapacitated Person ("AIP"), as well as visitation with E. K. . An order to show cause was signed May 4, 2017, directing that E. K. show cause why a guardian of her person and property should not be appointed for her, and why the other requested relief should not be granted. Mental Hygiene Legal Service (3rd Dept.), Richard Wenig, Esq., of counsel, was appointed as Court Evaluator, duly appeared, and gave his report as required by law. Robert L. Halpin, Esq. was appointed as Counsel to E. K. and duly appeared as same. E. I. , E. K. 's only other child, was put on notice of the proceedings, and retained Denice Hamm, Esq. as counsel to represent her in this matter.

Following multiple court appearances and agreed-upon temporary orders, a second petition was filed by S. B. on January 26, 2018, under MHL Article 81, again seeking the appointment of a guardian of E. K. By decision and order of this Court dated June 15, 2018, this Court dismissed both petitions. Matter of S.B. (E.K.), 60 Misc 3d 735 (Sup Ct, Chemung County 2018). By opinion and order dated September 19, 2019, the Appellate Division reversed the 2018 decision and remanded these matters to this Court for further proceedings. Matter of S.B. (E.K.), 66 Misc 3d 452 (3d Dept 2019).

On November 1, 2018, S. B. filed a related power of attorney accounting action against E. I. , as agent under power of attorney for E. K. , in Chemung Supreme Court (Index No. 2018-2295).

By scheduling order dated October 9, 2019, the Court set discovery deadlines and scheduled the hearing in these matters to commence on December 17, 2019. Based on the motion practice of the parties, which revealed that Mr. Halpin would likely be called to testify as a fact witness in the hearing, the Court issued a decision and order dated November 27, 2019, relieving Mr. Halpin as counsel for the reasons stated in that decision, and appointing Greg S. Catarella, Esq. as successor counsel to represent E. K. in this proceeding. The Court also issued orders dated January 22, 2020 and February 20, 2020, deciding various discovery and in limine motions filed by the parties.

The hearing was convened on March 4, 2020, at which time Greg S. Catarella, Esq. appeared; the presence of E. K. was dispensed with by the Court for good cause shown; Mental [*2]Hygiene Legal Service (3rd Dept.), Kristin Snyder, Esq., of counsel, appeared as court evaluator and gave her report as required by law; S. B. appeared with her counsel, Douglas Mahr, Esq. and Gina Glover, Esq.; and E. I. appeared with her counsel, Denice Hamm, Esq. The Court accepted the court evaluator's reports into evidence and made the finding that E. K. is unable to coordinate her own visitation with her daughter, S. B. , despite the clearly expressed desire of E. K. to engage in such visitation. Based on this finding, the Court appointed Care Manage For All, LLC as the special guardian of E. K. (sometimes referred to herein as the "Special Guardian"), with the following authority:

a) Facilitate visitation between E. K. and S. B. , with visits to take place at least once per month, with the authority including but not limited to coordinating with E. K. , E. I. , and S. B. regarding the scheduling of dates and times for visitation; determining the amount of time per visit; picking up E. K. and transporting her to and from visits; and cancelling or rescheduling visitation if E. K. cannot physically or does not want to attend. The Guardian shall have unrestricted access to E. K. .

b) Setting up and coordinating the use of telephone calls and/or an electronic means of video communication between E. K. and S. B. , such as, for example, Skype or Facetime.

While the Special Guardian was appointed based on the Court's finding that E. K. lacks capacity with regard to visitation and required the assistance of a guardian to facilitate such visitation, specific terms of the frequency and modes of visitation were agreed upon on the record, in open court, by E. I. , S. B., and all counsel.

The Court's confirming written order and findings, dated March 13, 2020, revoked any health care proxies executed by E. K. prior to March 4, 2020 and directed the Special Guardian to submit informal bimonthly reports to the Court and all counsel about the status of visitation between E. K. and S. B., and any other related issues that arise in relation to that visitation.

The Court received and reviewed interim reports from the Special Guardian dated June 21, 2020, July 7, 2020, July 12, 2020, July 14, 2020, July 16, 2020, and July 20, 2020. The July 14, 2020 report contained information that raised concerns for the Court regarding E. K. 's well-being and safety, and the Court treated the report as a request for temporary relief pursuant to Mental Hygiene Law Section 81.23(b)(1). The Court issued an access order on July 13, 2020, granting the Special Guardian unrestricted access to meet with E. K. inside E. I. 's home, without interference from the E. I. and R. I. The July 14, 2020 report contained additional allegations of neglect and isolation of E. K. by E. I. That report requested, among other things, an order providing E. I. respite as a caregiver by allowing E. K. to temporarily reside outside E. I.'s home.

On July 17, 2020, S. B. filed a new petition (Index No. 2020-5382) alleging E. K. needs a guardian of the person and property and reiterating the Special Guardian's request for immediate temporary relief in the form of E. K.'s placement outside E. I.'s home. The petition also requested the Court remove E. I. from all bank accounts held jointly with E. K. and hold S. I. and R. I. in contempt for interfering with court-ordered visitation between E. K. and S. B.

The Court found good cause for an expedited hearing and issued an order to show cause on July 17, 2020. E. I. filed a petition on July 22, 2020, denying the allegations made in the Special Guardian's reports and requesting that the Court either dismiss S. B.'s petition or appoint E. I. as E. K.'s guardian.

The hearing on E. K.'s immediate welfare convened via Skype for Business on July 24, 2020. Testimony was received from Kim Evanoski, CEO of the Special Guardian. E. K. also briefly appeared before the Court and parties. At the conclusion of the day's hearing, the Court issued a temporary order dated July 24, 2020, pursuant to Mental Hygiene Law Section 81.23(a), granting the Special Guardian the additional authority to choose the place of abode of E. K. and schedule and take E. K. to an appointment with a geriatrician. The Special Guardian was also given the authority to access E. K.'s medical records and information from her providers and to refill her prescriptions. Upon the issuance of the July 24, 2020 order, the Special Guardian placed E. K. in the home of S. B., where she has resided to-date, with the Special Guardian authorized and directed to facilitate visitation and/or phone contact between E. K. and E. I.

On July 27, 2020, the Court issued an order restraining E. I., and anyone acting under her auspices, supervision, or control from withdrawing any funds from the joint checking account held by E. I. and E. K. at Chemung Canal Trust Company. The account had never been redirected to E. K.'s Trust, as directed by the Court's March, 2020 Order. This account remains frozen.

The Court held the hearing on the 2020 cross-petitions via Microsoft Teams on August 10, 2020; August 11, 2020; August 20, 2020; September 2, 2020; September 3, 2020; September 9, 2020; and September 16, 2020. S. B. rested her case-in-chief on September 16, 2020, at which point Mr. Catarella, on behalf of E. K., moved for summary judgment to dismiss the petitions. This request was denied on the record, based on the Court finding the petitioner made a prima facie case that E. K. suffers from limitations that impact her ability to provide for her personal needs and may not have effective resources in place to address the limitations. E. I. presented her case-in-chief on September 17, 2020; September 30, 2020; October 7, 2020; October 8, 2020; October 21 ,2020; November 5, 2020; November 12, 2020; and December 1, 2020.

Over the course of the hearing, the Court issued both verbal guidance and periodic letter decisions reminding the parties of the remaining issues within the Court's focus, for which the Court would render a decision on at the conclusion of the hearing. On December 1, 2020 the Court reserved its decision on the two petitions and related outstanding issues and provided all parties the opportunity to submit post-hearing submissions. Submissions were received from E. K. , S. B. and E. I. The Decision on the petitions and all outstanding issues follows.

The following is a summary of testimony provided by selected witnesses who testified at the hearing. While the Court heard and considered all admitted testimony and documentary evidence, what follows are the relevant and persuasive facts that form the basis for the Court's ultimate findings and decision in this matter.

Richard Wenig, Esq., now-retired supervisor of the Binghamton office of Mental Hygiene Legal Service (3rd Dept.), testified in his capacity as the previous Court Evaluator in this matter. Mr. Wenig has more than 30 years of experience at Mental Hygiene Legal Services, and the Court gives great weight to his court evaluator's reports and testimony. In his capacity as court evaluator, Mr. Wenig met with E. K. at least three or four times; interviewed her alone and jointly with the S. I. and E. I.; watched her move around; and generally assessed her cognitive functioning and overall limitations. E. K. demonstrated an awareness that her daughters do not get along. E. I. reported that her feelings toward S. B. stem from childhood grievances and their father favoring S. B., particularly regarding finances. Mr. Wenig described the sisters' dynamic as a 50-year old grudge that continues to the present day.

Mr. Wenig testified about his June 2017 report, received in evidence as Court Exhibit 7. He [*3]expressed a general concern about the E. I. and family control of E. K.'s access to other individuals, particularly the S. B. and family, and opined that in his experience, this raises red flags regarding the well-being of the person alleged to need a guardian. He had no concern about E. K. residing with S. B.

As of at least 2017, E. K. was completely relying on the E. I. and R. I. to handle her financial affairs, including writing checks. According to Mr. Wenig, E. K.'s cognitive limitations subtly worsened after his initial involvement in 2017, with her having less ability to remember details or coherently participate in conversation over time.

S. B. testified that she works as a nurse anesthetist, owns a horse business, and has been married to M. B. for 43 years. She provided background history on E. K. and her marriage to S. B. and E. K.'s father, who traditionally handled the family's finances. After her husband died in 2007, E. K. executed estate planning documents, including a will, a power of attorney, and a living will, all of which were received in evidence. E. K. named S. B. as her attorney-in-fact and health care proxy by documents dated March 20, 2007.

E. K. sold her home in Moosic, Pennsylvania in July 2007 and thereafter alternately resided in the homes of each of her daughters for approximately six months at a time. S. B. built an addition on her home to be utilized as an apartment for E. K. E. K. enjoyed living in S. B.'s home, spending her time cleaning, ironing, sweeping, and playing with the animals. While E. K. split her time between their homes, she was able to speak on the phone with each daughter during the periods when she resided in the other's home.

E. K. was unable to drive herself, so M. B. would transport her to and from E. I.'s home. E. I. forbade S. B. from entering her property. S. B. was afraid of E. I.

In 2015, S. B. observed E. K. suffering cognitive decline, including confusion, memory issues, and wandering, and took her for a medical evaluation.

About December 23, 2015, E. K. went to E. I. 's home, with the stated intention to return before New Year's. E. K. extended that visit and ultimately communicated she did not want to leave E. I. and R. I. She resided exclusively in E. I.'s home from then on. After that, S. B. could only get E. K. on the phone sporadically; after April 2016, E. K. no longer had her own cell phone.

E. K. executed a new power of attorney in July 2016, naming E. I. as her agent. In S. B.'s opinion, due to E. K.'s cognitive decline, she was not capable of understanding the import of executing a planning document after 2015.

In July 2016, S. B. received a card from E. K., entered into evidence, expressing that she would like to come stay at S. B.'s home for a weekend. The visit was never coordinated. That same month, S. B. was notified that she was removed from E. K.'s bank account at Sponja Credit Union, with E. I. replacing her on the account.

After not seeing her mother for more than a year, or reach her on the phone since April 2016, S. B. and her husband drove to E. I. 's home in January 2017. When they arrived, E. I. came outside, screaming in S. B.'s face for her to leave the property. M. B. spoke to E. I. separately, and after a few minutes, E. I. allowed them into her home to visit with E. K. for approximately 45 minutes. E. K. was happy to see them and wondered why they had not visited.

These events, and her fear that E. K. was being isolated and possibly mentally abused, prompted S. B. to file her original guardianship petition in April 2017.

S. B. testified about copies of checks from E. K.'s account at Chemung Canal Trust Company ("CCTC"), which were entered into evidence. S. B. pointed out several checks from the CCTC account made out to R. I. with "legal fees" written in the memo line. S. B. testified that these checks [*4]indicate E. I. and her husband were taking advantage of E. K.'s diminished capacity to access her CCTC account.

After the first court appearance on the guardianship petition in 2017, S. B. had three visits with E. K. in the summer of 2017. S. B. made recordings at each of the visits, which were entered into evidence. During one of the conversations, S. B. interrogated E. K. about a letter she received from E. K., which S. B. believed E. K. was directed to write. The letter, apparently in E. K.'s handwriting, stated, among other things, that S. B. was harassing E. K. , and E. K. did not wish to see S. B. ever again. In the recording, E. K. is heard denying writing the letter and stating that if the letter were in her handwriting, she would have had to be under duress to have written it. E. K. states she is not making her own decisions, that she is doing what other people tell her to do.

While living exclusively since December 2015 with E. I., E. K. suffered a fractured right wrist, a sprained ankle, broken hips on both sides, and surgery for a bowel obstruction in January 2020. S. B. was not notified about the wrist or ankle injuries, and she did not hear about one of the hip injuries until it came up in a deposition related to these matters.

S. B. believes the Special Guardian has done a good job to date, and S. B. would continue to coordinate visitation or phone contact between E. K. and E. I. E. K. has resided with S. B. since July 24, 2020, and when S. B. leaves the home to go to work, she pays two aides to stay with E. K. S. B. and the Special Guardian believe E. K. has improved since being placed in her home. She now has shoes that fit her feet and walks more easily. E. K. has gained six pounds; walks with S. B. daily; sleeps regularly; and engages in activities, crafts, and appropriate physical therapy exercises.

Kim Evanoski, principal of the Special Guardian, provided information about the contact between E. K. and E. I. since E. K. has resided with S. B. At the end of August, a visit took place at an ice cream shop, at which Ms. Evanoski described E. K. as noticeably nervous and hyper-alert in E. I.'s presence.

Ms. Evanoski testified about her clinical work regarding elder abuse and spoke to her concerns about her personally witnessing E. I. pushing E. K. into her wheelchair and being aware of E. I. pushing E. K. onto a toilet. Ms. Evanoski did express satisfaction with the results of E. K.'s doctor's appointment, which was directed by the Court's July 24, 2020 order.

Erik O'Brien, employee of the Special Guardian, testified about recordings he made of visits and attempted visits between Ms. Evanoski and E. K. and about his written statements incorporated into the Special Guardian's reports, admitted during the July 24, 2020 emergency hearing. He reiterated his statements that E. I. improperly put E. K. in her wheelchair by failing to secure her feet. He also confirmed his statements that during attempted visits by Ms. Evanoski, E. K. seemed afraid to leave S. I.'s and R. I.'s property to see S. B.; stated she needed permission from E. I. to leave the property; and said nothing good would happen if she left the property without E. I.'s permission.

Misty Boldt, a licensed social worker who is certified as a clinical trauma professional, testified as to her interaction with E. K. on July 18, 2020, when she accompanied Ms. Evanoski, Mr. O'Brien, and E. K. for a visit between E. K. and S. B. Misty Boldt accompanied the group from Montour Falls to Syracuse for the visit and back, a trip of many hours. According to Ms. Boldt, E. K. consistently expressed fear about leaving E. I.'s home for the day. At the end of the day, when E. K. was returned home to S. I.'s residence, Ms. B. witnessed E. I. deal with E. K. in a rough manner, including E. I. grabbing E. K.'s walker as E. K. was attempting to enter the house. Ms. B. also witnessed E. I. pull down E. K.'s pants and underpants, take her diaper off, and push her back [*5]onto a commode upon her return from the car ride home. When Ms. B. stated that she was uncomfortable with this interaction and E. I.'s treatment of, and lack of respect for the privacy of E. K.E. I. got very angry, aggressively pointing her finger, and saying she was trained to provide care for E. K. Ms. B. categorized the behavior she witnessed as "deliberate abuse" of E. K. by E. I.

Dr. Sara Solomon, E. K.'s primary health care provider, testified that she always believed that E. K. was safe in E. I. 's care, and that E. I. provided appropriate care for E. K. Redacted versions of E. K.'s medical records were entered into evidence during Dr. Solomon's testimony.^[FN1] These documents included an email from E. I. directly to Dr. Solomon's office assistant, dated June 2, 2020, in which E. I. stated the following:

Hi Dr. Solomon, . . I needed to touch base with you quickly. The woman who was assigned to be mom's guardian as we explained to you already is way overstepping here [sic] roll [sic] in all this. I am not allowing her into the house period. . . . We need you to do something for her and help us give mom the peace to get better and leave her alone finally. We need you to write a letter to [my attorney] Denice [Hamm] stating moms health needs to be the priority here and not ridiculous visits mom is so worried about will again be forced on her and she thinks she has to go along with to keep the peace because no one in charge will listen to her and stand up for her. You are her Dr. and she needs you to help her get through all this and you know from 3 years now what she has said and her feelings. . . .

Dr. Solomon did not respond to this email and, despite being questioned about it, testified that E. I. did not ask her directly to prevent E. K.'s visits with S. B.

Dr. Solomon acknowledged that in recent years E. K. had become an unreliable reporter of her own information. Dr. Solomon obtained most of her information about E. K. from E. I. and accepted without question what E. I. reported to her. Dr. Solomon saw no reason why E. K. should not be allowed to visit with S. B. Despite having noted in her records that E. K. could be the "adult victim of psychological bullying", Dr. Solomon never made a referral or reported the matter to Adult Protective Services. Dr. Solomon supports E. K. living in an environment where she has an appropriate diet and experiences the least amount of stress possible.

E. I. testified that she is 70 years old and has been married to R. I. for 41 years. She has no reservations about being able to provide care for E. K. According to E. I., E. K. can follow a normal conversation if you repeat and explain things slowly. E. K. expresses a desire to understand when someone is speaking to her.

E. I. testified that after the court appearance in 2017, she coordinated the installation of a phone for E. K.'s use but that E. K. would pull the phone out of the wall or take it off the hook. E. I. does not care if E. K. has a phone while she resides in her home. E. I. also does not care if E. K. ever interacts or communicates with S. B. but denied ever doing anything to actively stop or interfere with their communication. If E. I. were appointed E. K.'s person guardian, she would not allow S. B. to enter her property to visit with E. K. She confirmed she is unable to put aside her personal animosity of S. B. for E. K.'s sake.

E. I. denied influencing E. K. in her decision making or how she spends her money. E. I. [*6]could not remember how much of E. K.'s money she used to pay her legal fees to Ms. Hamm. She stated that E. K. wanted to pay the fees and made the suggestion at the outset of this proceeding in 2017. According to E. I., E. K. directed E. I. and R. I. to fill out the legal fee checks and E. K. signed them.

When E. K. resided in her home, E. I. coordinated her diet and the provision of her medical care. She got E. K. appropriate responsive medical care whenever E. K. fell and suffered an injury. Following E. K.'s release from the hospital after her first hip injury, E. I. coordinated with the Chemung County Health Department for nurses and physical therapists to provide services to E. K. in E. I. and R. I.'s home. E. K. suffered a second hip fracture in October 2019 due to what E. I. referred to as E. K.'s impatience while getting into a car without using her walker. E. I. testified that the hospital and county workers did not have any concern about how E. K. injured herself on either occasion.

E. I. denied remembering whether she asked Dr. Solomon to write a letter to stop visits between E. K. and S. B. She also denied telling E. K. that S. B. wants to place her in a nursing home, a possibility which E. I. acknowledged petrifies E. K.

In January 2020, E. K. underwent a surgery for an intestinal issue, resulting in her current use of a colostomy bag. E. I. testified she had no issue with S. B. visiting E. K. in the hospital, where she was admitted for approximately a week. E. I. denied providing the hospital with information about the guardianship proceeding or instructing that S. B. should not be allowed to visit with E. K.

E. I. stated her version of the day on which E. K. was taken by Ms. Evanoski, Mr. O'Brien, and Ms. Boldt for a visit with S. B. E. I. acknowledged putting E. K. on the commode in the view of Ms. Boldt but denied that anything about the interaction was abusive or inappropriate.

E. I. claimed that the court's order was vague on coordination of visits by the Special Guardian and she did not understand E. K. was supposed to leave her property to have visitation with S. B. In response to questions about an audio recording of E. I. stating that E. K. was not to leave her property, E. I. stated that they did not know where E. K. was being taken and she was never told about a scheduled visit, which is why she prevented the visit from taking place.

In support of her case, E. I. called numerous witnesses who uniformly testified to the strong relationship between R. I. and E. I., and E. I.'s devotion to providing care for E. K. Almost every witness E. I. called denied knowing anything about all of the dynamic between E. I. and S. B.; E. I. having a temper or ever having a bad reaction to anything; or this three-plus year-long litigation.

Chemung County caseworkers testified that E. I. was always cooperative with their instructions on how to care for E. K.; she consistently worked well with them; followed their general recommendations; purchased necessary items for E. K. 's care; and provided appropriate medical care for E. K. The caseworkers did not note any concerns about E. I. or the environment in her home, though none of the workers performed any kind of psychological assessment of E. K. during their time working with her. They are mandated reporters and never made a report about E. K. or her home to Adult Protective Services.

Helen Peregrim, a Chemung County nurse care manager who oversaw E. K.'s case and provided direct care, testified that she wanted E. K. to stay placed in E. I.'s home and found the court proceeding frustrating. Ms. Peregrim advised E. I. to not let E. K. leave the property without a court order, due to her concern for E. K.'s safety, though she was unable to articulate the safety concern with any specificity. She understood this court proceeding as S. B. wanting to gain "custody" of E. K. Her personal opinion is that E. I. is an excellent caregiver and E. K. should be allowed to continue to reside in the Ingersoll home.

Monica Rice is a nursing assistant E. I. hired as a private care home health aide following E. K.'s January 2020 surgery. Ms. Rice understood that E. I. was hiring her at the time because E. I. and R. I. were becoming overwhelmed with caring for E. K. in addition to running their household, caring for their livestock and animals, and handling the finances and taxes for their animal-related non-profit organization. Ms. Rice is a mandated reporter and never made such a report or observed anything inappropriate in E. I. and R. I.'s home. She described E. K. as liking her despite her consistently encouraging E. K. to walk more on her own.

Ms. Rice was very complimentary of the care provided by E. I. and R. I. but also testified about caregiver fatigue and the toll it takes when an individual must provide constant care for an elderly or ailing family member. Ms. Rice would encourage E. I. and R. I. to leave the house and enjoy time to themselves. According to Ms. Rice, it was apparent to her that E. I. and R. I. were "mentally struggling." Ms. Rice also confirmed E. K. communicating she wanted S. B. to be able to visit her in the E. I. and R. I.'s home.

Peter Smith, a neighbor of E. I. and R. I., testified that he transported E. K. for court-ordered visits with S. B. on three occasions. Mr. Smith did not know why he was asked to drive E. K. , and he described the visits as enjoyable for E. K. and otherwise uneventful. He said that on one occasion, S. B. was asking E. K. about visiting for Christmas in a "somewhat pushy" manner.

Testimony was also given by M. B., husband of S. B. ; D. S., a friend of S. B. ; D. I., daughter of R. I.; and four friends of E. I.'s family; D. O., registered nurse who provided care for E. K.; and D. G., friend of the E. I. and physical therapist for Chemung County. E. I. and R. I., and S. B. and M. B. all testified to identify certain checks written from E. K.'s accounts; copies of those checks were entered into evidence. While not summarized here, that testimony and documentary evidence were considered by and supports the findings, analysis and determinations made by the Court.

The Court makes the following findings of fact regarding the request for the appointment of a guardian of the person of E. K. , based on the clear and convincing evidence received at the hearing.

E. K. is a 92-year old woman whose husband died in 2007, prompting her to sell their home in Pennsylvania and spend half of each year residing in the homes of her two children, S. B. and E. I.E. I. has a long-standing hatred of S. B. and has consistently refused to allow S. B. onto her property, so when E. K. would switch residences, S. B.'s husband would drive her to and from E. I.'s home. In December 2015, E. K. decided to indefinitely reside in the home of E. I., where she lived until the Court authorized the Special Guardian's placement of E. K. in the home of S. B. in July 2020. E. K. now lives in S. B.'s home and appears to be content and thriving in that environment.

E. K. appears to have reasonably intact cognitive functioning, with some memory loss. The Court has, on its own, observed a decline in E. K.'s cognitive abilities from when it met with E. K. and her counsel in-camera at the outset of this proceeding in 2017 until the Court spoke with E. K. briefly via Skype for Business during the hearing date in July 2020.^[FN2] E. K. receives assistance [*7]attending to her hygiene, taking medication, getting dressed and eating meals, among other activities of daily living. E. K. has suffered several health issues in the last few years, including fractures in both hips and a surgery in January 2020, resulting in her current use of a colostomy bag. While E. K. resided in E. I.'s home, they provided E. K. with appropriate medical care and arranged for physical rehabilitation following her injuries and illness.

On March 20, 2007, E. K. executed a health care proxy appointing S. B. as her health care agent. During a hospitalization, E. K. executed a new health care proxy dated August 30, 2019, naming E. I. as her health care agent. Both were revoked by the Court's March 13, 2020 order.

Since this proceeding commenced in 2017, E. K. has consistently expressed that she wants to continue residing in E. I.'s home and that she wants to have a relationship, communication, and visitation with S. B. Matter of S.B., supra at 745.

Once E. K. began residing full-time in the home of E. I. in late 2015, E. K. had dramatically reduced and ultimately no contact with S. B. by phone, video communication, or in person. From that time until the initiation of this guardianship petition in 2017, E. I. refused to effectively coordinate any communication or visitation between E. K. and S. B. After this proceeding began, E. I. still refused to coordinate communication or visitation. E. I. still refuses to allow S. B. onto her property. E. I. has consistently demonstrated, and stated directly to the Court, throughout the course of this case, that she will not coordinate E. K. obtaining, keeping, or using a phone or any other technology for S. B. or anyone else to communicate with E. K.While E. I. has openly and actively isolated E. K. from S. B., E. I. did provide E. K. with a social life consisting of friends and neighbors, solely of E. I.'s choosing.

E. I. consistently refused to provide E. K.'s medical information directly to S. B. On one occasion E. I. notified her counsel regarding E. K.'s hospitalization; otherwise, S. B. has not received information or updates from E. I. when E. K. has been hospitalized or injured, even after the initiation of this proceeding in 2017.

In Court on March 4, 2020, E. I. , both personally and through her counsel, agreed to the terms of an Order effectuating a response to the Court's finding that E. K. has the limitation of being unable to coordinate communication or visitation with S. B. Since then, E. I. has acted in a very uncooperative manner toward the Special Guardian and its employees, which were tasked by the Court with facilitating communication and visits between E. K. and S. B. The Court notes that while the implementation of the Special Guardian's responsibilities coincided with the beginning of the Covid-19 pandemic, E. I. continued to refuse contact or visitation, even with the Special Guardian's employees following all appropriate safety protocols.

E. I. has engaged in a pattern of behavior to manipulate E. K.'s medical providers, seemingly in an attempt to achieve E. I.'s own objectives. E. I. emailed Dr. Solomon's office on June 2, 2020, asking Dr. Solomon to take action to stop the court-ordered visitation. The redacted medical records received in evidence demonstrate that E. I. was providing Dr. Solomon with misleading information, presumably to bolster her case in this litigation. Petitioner's Exhibit 17 contains medical records created by Dr. Solomon with the following references:

From September 16, 2019 office visit: "Geriatric Patient with her daughter who is now the health care proxy — recent hospitalization at ARNOT — much difficult reaching sister who has been fighting for control of proxy for years from west coast — new arrangement better for medical status and treatments for the patient"

From November 13, 2018 office visit: "Social — still seems that her other daughter may be [*8]demanding custody for money . . . What does patient need to sign saying worried that daughter other daughter [sic] will take her away"

From May 23, 2018 office visit: "[The] patient's daughter was concerned that her Mother was crying- much stress due to custody of patient- another daughter wants to [sic] Mother but patient does not want to move"

From July 17, 2017 office visit: "Legal case in process to force patient to leave her home with her daughter E. I. "

Dr. Solomon was provided this information by E. I., to keep E. K.'s physician on E. I.'s "side" in this litigation.

When questioned about this, E. I. denied providing any information about the litigation to the hospital during E. K. stay there for surgery in January 2020. However, the hospital's record, admitted in evidence, states: "Family strife younger sister is suing mother for guardianship article 81 and should not be alone with patient . . . All history is from [S. I. and family] and medical record." This constitutes further interference by E. I. in the contact and relationship between E. K. and S. B.

This documentary evidence, coupled with E. I.'s own testimony flatly denying interference with E. K.'s visitation or communication, leads the Court to generally question E. I.'s credibility.

The Court found similar issues of credibility regarding many of E. I.'s witnesses, who uniformly provided testimony denying knowledge about E. I.'s bad relationship with S. B., or E. I. ever demonstrating a temper or bad reaction. The Court's own observation is that E. I. appears to be very vocal and expressive about her feelings in general and about her feelings for her sister specifically. Many of E. I.'s witnesses, including Scott Sturdivant, Debra O'Brian, Daniel Goodman, Vicki Petras and Michelle Craven, gave remarkably similar testimony and even used identical verbiage to describe the level of care provided by E. I., E. I.'s good nature, and the relationship between E. I. and her family.

The Court makes the following findings of fact regarding the request for the appointment of a guardian of the property of E. K., based on the clear and convincing evidence received at the hearing: E. K. executed the E. K. Irrevocable Trust on September 1, 2016. Robert L. Halpin, Esq. is the trustee. E. K. executed a power of attorney, naming S. B. as her agent, on March 20, 2007. E. K. revoked that power of attorney and executed a new one, with the assistance of Mr. Halpin, on July 6, 2016, naming E. I. as her agent. The 2016 power of attorney contained a statutory gift rider.

E. I. has been assisting E. K. administer a CCTC checking account, held jointly with E. I. This account receives a survivor's pension from E. K.'s late husband and her Social Security income. This is E. K.'s only asset that exists outside the trust. The Court froze this bank account in its March 13, 2020 order and again enjoined E. I. from accessing it when E. K. was placed in S. B.'s residence, by order dated July 27, 2020.

From the CCTC account, E. K. paid to Denice Hamm or R. I. a total amount of $35,965.80, for legal fees owed by E. I. to Ms. Hamm for her representation of E. I. in this matter. R. I. wrote out the majority of these checks, with E. K. signing them. The memo lines on these checks state "legal fees" or "legal expenses;" some reference Ms. Hamm or her firm directly. There are 11 of [*9]these checks, dated between October 2018 and October 2019.

In considering this Article 81 petition for the appointment of a guardian, the Court must undertake a three-part analysis. First, the Court must examine whether AIP has limitations which render her unable to provide for her personal needs, including food, clothing, shelter, health care and safety, or to manage her property and financial affairs. MHL §81.02. If such limitations exist, the Court must then consider whether the AIP has sufficient resources in place, either through efforts of the AIP, others, or statute, that adequately address those needs, obviating the need for the appointment for a guardian. MHL §§81.02(a)(2), 81.03(a). Finally, if there are limitations that are not adequately addressed by available resources, the Court must consider who should be appointed as guardian, and the scope of the guardian's powers, consistent with the least restrictive alternative standard. MHL §81.01; see also Matter of Kurt T., 64 AD3d 819, 821-822 (3d Dept 2009); Matter of May Far C., 61 AD3d 680, 680 (2d Dept 2009); Matter of S.B. (E.K.), 60 Misc 3d 735 (Sup Ct, Chemung County 2018), rev'd on other grounds, 66 Misc 3d 452 (3d Dept 2019).

When the Court appoints a guardian based on a finding of the AIP's incapacity, the determination must be based on clear and convincing evidence and requires an additional two-part finding. The Court must find the AIP is likely to suffer harm because she is unable to provide for her personal needs and/or property management, and that the AIP does not "adequately understand and appreciate the nature and consequences of such inability." MHL §81.02(b). In reaching its determination, the Court must give primary consideration to the person's "functional level and functional limitations," including an assessment of the person's ability to manage the activities of daily living related to property management, such as money management and banking; her understanding and appreciation of the nature and consequences of any inability to manage these activities; her preferences, wishes, and values regarding management of these affairs; and the nature and extent of the person's property and finances, in the context of her ability to manage them. MHL §§ 81.02(c); 81.03(h); see also Matter of Maher, 207 AD2d 133 (2d Dept 1994). The Court must also assess, in pertinent part, "the extent of the demands placed on the person . . . by the nature and extent of that person's property and financial affairs;" any mental disability and the prognosis of the disability; "any medications with which the person is being treated and their effect on the person's behavior, cognition and judgment;" and "other relevant facts and circumstances." MHL §§ 81.02 (c)(4); (d).

Article 81 mandates that the Court consider E. K. 's personal wishes, preferences and desires, allowing her to make the decisions affecting her life, to the extent she is able to. MHL §81.01; In re Matter of Cheryl B. K., 45 Misc. 1227(A) (Sup Ct, Broome County 2012). The Court must be careful not to unduly substitute its judgment, or that of others, for E. K. 's judgment. Id.; Matter of Williams, 194 Misc 2d, 793 (Sup Ct, Suffolk County 2003). Article 81 cases are replete with references to respecting the AIP's wishes to the extent possible. Williams, supra; Cheryl B. K., supra; In re Pfluger, 181 Misc 2d, 294 (Sur Ct, New York County 1999). The Court should "approve any acts as long as it falls within the range of reasonable actions for a given situation." Pfluger, supra, at 299. Whether to appoint a guardian is a matter of discretion requiring the Court to determine if the AIP actually needs one. Matter of Daniel TT, 39 AD3d 94 (3d Dept. 2007).

The Court finds by clear and convincing evidence that E. K. has limitations that render her unable to provide for her personal needs, based on her short-term memory issues and inability to [*10]attend to her own meals, hygiene, medication administration, doctor's appointments, and general safety. MHL §81.02. This incorporates and expands upon the finding made by the Court on March 4, 2020, memorialized in the March 13, 2020 order, that E. K. lacked the ability to independently address her desired visitation with S. B.. In the Matter of E. K. , Sup Ct, Chemung County, March 13, 2020, Guy, J., index No. 2017-1474.

The Court also finds that E. K. does not have sufficient resources in place to address these needs. The Court accepts that the S. I. and R. I. have a loving marital relationship and many friends with whom they and E. K. socialized. But E. I. 's relationship with her sister impacts in the most negative way E. I. 's ability to serve as a fully effective resource for her mother. While E. I. provided effectively for many of E. K. 's personal needs, she has outright refused, since at least 2016, to address E. K. 's desire to have contact and a relationship with S. B.. E. I. has held E. K. in a state of isolation, openly executing a plan to keep E. K. out of contact with her sister by making E. K. unavailable to S. B. either by phone, video, or in person. It required multiple interventions by the Court and the Special Guardian to ensure S. B. had any access to her mother.

The Court's conclusions regarding E. K. 's inability to provide for her personal needs, her inability to effectively manage visitation and communication with S. B. in particular, and her lack of effective resources to address this limitation, are consistent with the reports and recommendations of the court evaluator, to which the Court gives great weight. The Court also credits the testimony of Monica Rice, called by E. I. in support of her case-in-chief. Ms. Rice clearly stated that while she had no criticism of the care provided to E. K. by E. I. , E. I. and R. I. were both mentally struggling with their many responsibilities, including their provision of care to E. K. , and were suffering from caregiver fatigue. The Court is also relying on the reports of the Special Guardian regarding the impossibility of effectuating communication or visitation between E. K. and S. B., due to the unwillingness of E. I. to cooperate with a plan she agreed to in March 2020.

E. K. 's need and desire to have a relationship with her daughter Suzanne was completely frustrated when she resided with E. I. . E. K. is unable to independently provide for this need. If E. K. continues to reside in the home of S. B., who is willing and able to facilitate communication and visitation between E. K. and E. I. , then E. K. 's personal need to have a relationship with both her daughters can be met.

Based on the totality of the clear and convincing evidence received at trial, the Court finds that the living arrangement put in place by E. K. , residing in E. I. 's home, was not an effective "resource" to address her living situation and her desire to have a relationship with both of her daughters.

The Court finds E. K. is incapacitated based on the clear and convincing evidence and is likely to suffer harm because of her inability to provide for her personal needs, including for her activities of daily living and her visitation and communication with those outside of E. I. 's sphere of influence. The Court finds E. K. does not adequately understand and appreciate the nature and consequences of that inability. MHL §81.02(b).

In so concluding, the Court has fully considered E. K. 's personal wishes, preferences, and desires. MHL §81.01; Cheryl B. K., supra. While she has consistently expressed a desire to reside in the home of E. I. , she has also consistently expressed a desire to visit and speak with S. B., which E. I. has frustrated and prevented at every possible juncture. E. I. has used her access to her mother as a weapon against her sister, putting her personal animus for her sister above the needs, desires, and wishes of E. K. . It is not reasonable for E. K. 's desire to reside with E. I. — in an environment where E. I. isolates E. K. as a response to E. I. 's own relationship with her sister — to override E. [*11]K. 's desire to have a relationship, contact, and in-person visitation with S. B.

In accordance with this conclusion, the Court will appoint Care Manage For All, LLC as Guardian of the Person of E. K. . The Court makes this appointment, rather than either of E. K.'s daughters, due to the long-standing history of discord between them, making them both unsuitable to serve as guardian under these circumstances. MHL § 81.19(a)(1); see, e.g., Matter of Ardelia R., 28 AD3d 485, 487 (2d Dept 2006); Matter of Camoia (Giaimo), 2015 NY Misc. LEXIS 2934, *41-42 (Sup Ct, Kings County 2015). The continued appointment of Care Manage For All, LLC as an independent, neutral third-party will serve E. K. 's best interests in being able to have her communication and visitation coordinated without the negative impact of her daughters' toxic relationship.

In accordance with this conclusion, the Court grants Care Manage For All, LLC the following personal needs powers:

Determine who shall provide the personal care, health care and assistance for the personal needs and health of Elizabeth J. Kotula. To enter into contracts for the same and direct payment to such persons, firms or corporations.

Make decisions regarding social environment and other social aspects of the life of Elizabeth J. Kotula, including but not limited to the authority and responsibility to coordinate E. K. 's visitation and communication with E. I. .

Choose the place of abode of Elizabeth J. Kotula, consistent with the Findings pursuant to Section 81.15 of the Mental Hygiene Law, provided that long-term placement of Elizabeth J. Kotula in a nursing home or other residential facility as those terms are defined in the Public Health Law '2801 will require further Court authorization.

While the power to decide the place of abode rests within the discretion of Care Manage For All, LLC as Person Guardian, the Court's expectation is that E. K. will continue to reside in the home of S. B., as long as that is safe and practicable. E. K. 's other longstanding and often stated desire is not to be placed in a "nursing home." The Court will issue a separate order confirming this appointment and the powers granted.

The Court will also issue a separate order confirming its revocation of all health care proxies previously executed by E. K. ,^[FN3] granting S. B. the authority to make medical decisions on behalf of E. K. , and confirming E. I. 's and the Guardian's access to medical records and providers. The Family Health Care Decisions Act might enable S. B. to make medical decisions on E. K. 's behalf, to the extent she is deemed medically unable to make her own decisions. Public Health Law § 2994-d [1]. However, the "Family Health Care Decisions Act was clearly never meant to be a replacement for a court appointed guardian under article 81 of the Mental Hygiene Law." Matter of Restaino (AG), 37 Misc 3d 586, 590-591 (Sup Ct, Nassau County 2012). Given the convoluted nature of this case and the various medical directives executed by E. K. , issuance of a new order granting S. B. [*12]medical decision-making authority is the most straightforward result for E. K.'s medical providers.

The Court also finds by clear and convincing evidence that E. K. has limitations that render her unable to provide for her property needs, based on her short-term memory issues and demonstrated inability to independently manage and control the asset she has outside of the trust she created. MHL §81.15(c). The Court declines to appoint a property guardian for E. K. . The trust E. K. created, with an independent trustee, has proven to be an effective resource for her property needs and can be utilized to meet her needs going forward. Matter of S.B., supra at 747 (finding the trust to be an "effective resource" for E. K. ). E. K. 's one outside account and the income flowing into it will be directed to the trust, so it can fully manage her property needs. Mr. Halpin, in his discretion as trustee, can make payments to or on behalf of E. K. as he deems appropriate in the exercise of his fiduciary duty, and as directed for the care of E. K. by her person guardian.

The Court directs that the income to the CCTC joint account be redirected to the E. K. Irrevocable Trust. The Court will issue a separate order authorizing trustee Robert Halpin, Esq. to redirect this income into the trust, close the account once the income has been redirected, and deposit the proceeds of the account into the trust. With that redirection and closure, all of E. K.'s assets will be under the management of her trustee, obviating the need for the appointment of a property guardian. This result is the least restrictive alternative for E. K. in terms of management of her property.

The appointment of Care Manage For All, LLC, with its limited powers, and no property guardian appointment, constitutes the least restrictive form of intervention to address E. K. 's limitations. MHL § 81.16(c)(2).

It is uncontroverted that the E. I. and R. I. wrote checks from E. K. 's CCTC account for legal fees owed to Denice Hamm for representation of them in this proceeding, in the total amount of $35,965.80. All other claims raised in the power of attorney accounting proceeding were withdrawn by S. B.. The Court hereby orders that E. I. repay that full amount to the E. K. Irrevocable Trust, based on a variety of factors.

E. I. testified that E. K. wanted to pay her legal fees associated with this matter, and she has advanced the legal argument that she had authority to direct these gifts as the agent under E. K. 's 2016 power of attorney. Gift-giving authority conferred to an agent under a power of attorney must be exercised in the "best interest of the principal, consistent with financial, estate or tax planning techniques and objectives." Matter of Ferrara, 7 NY3d 244, 253 (2006). An attorney-in-fact is prohibited from making gifts to herself that are not in the principal's best interest and are contrary to the principal's estate plan. Matter of Garrasi, 33 Misc 3d 1224(A), 1224A (Sur Ct, Schenectady County 2011), aff'd 104 AD3d 990 (3d Dept 2013).

The Court finds E. I. 's testimony that E. K. wanted to pay her legal fees associated with this matter self-serving, and without any independent verification that this was what E. K. wanted. E. K. did not take any action to ratify these transfers, which were essentially gifts. There was no evidence presented that the transfer of these funds to pay for E. I. 's legal fees was in E. K. 's best interest or provided her any benefit at all. Such transfers were also contrary to E. K. 's estate plan, by which E. K. leaves her estate equally to her two daughters.

Based on the testimony, documentary evidence, and the Court's own observations throughout the pendency of this proceeding, the Court concludes that E. K. lacked the capacity to ratify these transfers or direct them in the first place. E. K. was unable to independently manage her finances [*13]before October 2018, the date of the first check made out by R. I. and signed by E. K.E. K. implicitly acknowledged her own inability to manage her finances through the creation of her trust in 2016.

The Court also has the authority to decide whether a petitioner's legal fees will be paid from an alleged incapacitated person's resources. MHL § 81.16(f). In this case, the Court determines that E. I. 's fees should not be paid from E. K. 's resources. E. K. 's consistent desire, expressed for years, was to be able to see both her daughters and for them to stop fighting. E. I. using her mother's money to fund her pursuit of this litigation - to subvert or preclude E. K. 's contact and communication with S. B. - was in complete derogation of her mother's express wishes.

The Court hereby directs that E. I. pay the amount of $35,965.80 to the E. K. Irrevocable Trust within thirty (30) days of the signing of this Decision. Mr. Halpin is directed to provide confirmation to the Court once the trust has received these funds, and he is further authorized and directed to enter judgment on behalf of the trust against E. I. in said amount if the payment is not made as directed in this Decision.

By decision and order dated July 16, 2020, the Court awarded $1,550 to Care Manage For All, LLC in its capacity as Special Guardian and found that a portion of that fee would be assessed against E. I. for her interference in the court-ordered visitation between E. K. and S. B.. In the Matter of E. K. , Sup Ct, Chemung County, July 16, 2020, Guy, J., index No. 2017-1474. The Court confirms that finding based on the evidence presented at the hearing in this matter.

The Court directs that $1,050 of the $1,550 owed to Care Manage For All, LLC be paid by E. I. . The remaining $500 will be paid to Care Manage For All, LLC from the E. K. Irrevocable Trust.^[FN4]

In the course of the hearing, E. I. 's counsel served a subpoena on Care Manage For All, LLC, prompting Ms. Evanoski to hire Mariette Geldenhuys, Esq. as her counsel, to aid her in responding to the subpoena in the form of a motion to quash. The motion to quash was granted on the record on November 5, 2021. In the affidavit in support of the motion to quash, Ms. Evanoski requested the Court direct payment of her legal fees to Ms. Geldenhuys in connection with this matter.

The so-called "American rule" dictates that in litigation, each side typically pays its own counsel fees, with exceptions for recovery pursuant to contractual provisions, statutes, or court rules to the contrary. 150 Centreville, LLC v. Lin Assoc. Architects, PC, 39 Misc 3d 513, 529 (Sup Ct, Queens County 2013). Part 130 of the Rules of the Chief Judge provides that the Court may exercise its discretion to award legal fees and costs against another party resulting from that party's frivolous conduct, which is defined, in part, as conduct that is "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another." 22 NYCRR 130-1.1(c). The Court already made the finding that Ms. Hamm's pursuit of subpoenas in this matter in the middle of the hearing was frivolous within the meaning of Part 130 and confirms that finding now. In the Matter of E. K. , Sup Ct, Chemung County, November 24, 2020, Guy, J., index No. 2017-1474.

The Court has received and reviewed the affirmation of services and time record submitted by Ms. Geldenhuys for her legal fees and disbursements in connection with her work in this matter. The Court directs that E. I. pay $6,317.50 for the legal fees and disbursements incurred by Care Manage For All, LLC in connection with defending the subpoenas served by Ms. Hamm in the midst of the hearing in this matter, said payment to be made within 30 days of the date of this Decision.

S. B. has requested that E. I. be held in contempt for her interference with visitation between E. K. and S. B.. The Court has once declined to award sanctions against E. I. in this matter. In the Matter of E. K. , Sup Ct, Chemung County, November 24, 2020, Guy, J., index No. 2017-1474.

While the Court has made findings of fact that support the conclusion that E. I. actively and openly interfered with the court-ordered visitation, it is within the Court's discretion to award sanctions, and the Court declines to exercise that discretion at this time.

This Decision constitutes the Order of the Court.

In furtherance of this Decision, it is hereby

ORDERED, that the petition filed by S. B. on July 17, 2020 is GRANTED regarding its request for the appointment of a guardian of the person and DENIED regarding its request for the appointment of a guardian of the property; and it is further

ORDERED, that E. I. shall pay back the amount of $35,965.80 to the E. K. Irrevocable Trust within thirty (30) days of the signing of this Decision, with Mr. Halpin to provide confirmation to the Court once he has received these funds; and it is further

ORDERED, that E. I. shall pay $1,050 to Care Manage For All, LLC or to the E. K. Irrevocable Trust, if the Trust already paid this amount to Care Manage For All, LLC, within thirty (30) days of the signing of this Decision; and it is further

ORDERED, that Robert Halpin, Esq. shall pay $500 from the E. K. Irrevocable Trust to Care Manage For All, LLC within thirty (30) days of the signing of this Decision; and it is further

ORDERED, that E. I. shall pay $6,317.50 to Mariette Geldenhuys, Esq., for legal fees and disbursements incurred by Care Manage For All, LLC in connection with its response to subpoenas issued in this matter, within thirty (30) days of the signing of this Decision; and it is further

ORDERED, that the request of S. B. to find E. I. in contempt of Court and award sanctions is DENIED.