In re Maher
207 A.D.2d 133, 621 N.Y.S.2d 617 (1994)
Maher suffered a stroke which
left him incapacitated, but conscious. The New York Court stepped in and
appointed Bomba as the guardian ad litem, and LaRocca as the temporary conservator of his property.
As guardian ad litem Bomba was empowered to represent Maher's
As conservator, LaRocca was empowered to make financial
decisions for Maher.
Bomba went to Court to have
LaRocca removed as conservator.
LaRocca had a possible conflict of interest, because he happened to
represent a hospital, which owed Maher a considerable sum of money.
The Trial Court removed
LaRocca and appointed Maher's sister, Elizabeth, and his son Francis, as
While the proceedings were
pending to make their conservatorship
permanent Maher moved in with his son.
However, Maher was acting
irrational and eventually escaped and married his girlfriend.
Francis moved to have Maher
declared mentally incompetent, and have himself declared Maher's guardian.
The Trial Court found Maher
mentally competent. Francis appealed.
The Trial Court found that
Francis had not met the burden of showing by clear and convincing
evidence that Maher was
incapacitated, or that a guardian was needed to manage his affairs.
The Appellate Court affirmed.
The Appellate Court found
that in order to have a guardian appointed, the court must:
Determine that the
appointment is necessary to manage the property and financial affairs of
that person, and
Determine that the
individual consents to the appointment or that they are incapacitated as defined by New York State law.
These determinations must be
made by clear and convincing evidence
that the person is likely to suffer harm because he is unable to provide
for his affairs adequately.
The Appellate Court looked
to the evidence and testimony of various people (including Maher himself)
and decided that there was evidence that Maher was competent to make his
The older New York State law
said that in order to have a guardian appointed a person had to be
incompetent, but the law failed to provide guidance on what that meant.
Under the more recent New York State law, to be declared incompetent you
have to demonstrate with clear and convincing evidence a likelihood to suffer harm because of an
inability to provide for property management.