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SUPREME COURT - $'
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Present:
Ton __S,
he Mater oF ligation oP
Cad 2 eaeiedecae ef Qufalk
‘eualy Department of Social Services, for the
Appointment of a Guardian of the Person
and/or Property of
MARYANN HENNEN,
A Person Alleged to be Incapacitated,
Upon the following pepers numbered 1 to 12
+ Notice Of Motion and aupporting
papers 7-10; Replying Affidavits and suppor
number etc
DOR
DES be c0rouu
INDEX NO. 16328/07
STATE OF NEW YORK.
MLS
MOTION DATE: 7/7/09
MOTION NO.: 003 - MOTD
CHRISTINE MALAF, ESQ.
Surtelk County Attorney
Atlamey far potitianor
Suffolk County Department of Law
Family Cour/Social Services Bureau
Cohalan Court Comptex
400 Carleton Avenue
Central Islip, New York 11722
VINCENT G. BERGER, JR. BSQ.
Special Guardian
133 Fast Main Street
Babylon, New York 11702
MARY ANN HENNEN
178 Bayview Avenue
Northport, New York 11768
IAN S, WILDER, ESQ.
P.O, Box 6037
‘North Babyion, New York 11703
read on this motion to obtein a Social Security
Papors 1ig/ Answering Affidavits and supporting
ting papers 11-12; i¢ 1s,Vest Les out
2 a8ed
Matter of DeMarzo (Hennen)
Index No. 16328/07
Page 2
is moti cit ian, Vincent G, Berger, Jr., Esq., tor
FED that he branches ofthis motion by the Special Guardian, Vince i
an order a) decting Mary anatlemen 20 furnish the Special Guardian with her Social See nuba whic
is i fc in order to record the dees ferring ;
A Bertier avonet Verto. New Yok 11768 from Iokn T. Rieger, ag surviving trustee, under the
A178 Bayview se i #8 Mary Ana Hennen, or, b) expanding the powers
Rusnaiee Pars EEE Ea bent ‘Seaurly Adminioraron es obtain the Social
g aM Ha Hennes and to furiiah same to the Suffolk County Clerk for the purpose of
i if tt ii soho theNortiees Property are granted to the extent that if Mary Ann Hennen
fe 8
oes not
ish such Social Security number to the Special Guardian within twenty days after service upon
her of copy ofthis order together with notice of entry the powers of the Special Guardian shall be expanded
ORDERED that this order shall constitute the supplemental commission to the. ‘Special Guardian with
tespect to such expanded powers, and it is further
Mary Ann Hennen, the Special Guardian may submit, on natice to Mary Ann Hennen and the Suffolk County
Attorney, # report confirming that such deed has been recorded, and a proposed order providing for the
termination of this special guardianship,
MEMORANDUM
This Mental Hygiene Law article 8 proceeding wos brought by the petitioner seeking appointment of
4 Guardian for Mary Ann Hennen with a broad array of powers, After a hearing, this Court eoneluded that
appointment a Guardian with far-ranging powers was not appropriate, Insiead, the Court. appointed a Special
Guardian with limited Powers. In its May 30, 2008 memorandum and order the Court explained:
+. Notwithstanding her apparent functional limitations and Patent lack of
understanding or appreciation of the nature and consequences of such
without leaving the general locale of her residence notwithstanding her belief
that superior care is available overseas). Notwithstanding the Telated,
z00RMatier of DeMarto (Hennen)
Index No. 16328/07
Page 3
tooR
cot Lee OUL
issues, ane withaut shelter. Bhe has engaged the services ofa rcal estate broker and
iarsslva suet ce ha i tegidenoe in whish she reaidsa, She seems fully to understand the concept
of money, and there {s no proof on the record that she would be unable properly to manage or invest her funds
if given contro} thereof.
Indeed, the only activity shown by the evidence that she has seemingly been
unable to accomplish is to secure the transfer of the residence in which she has
been living to herself trom the Trust, (The deterioration of the premises is at
least as explainable by her lack of funds as it is by any conclusion that she does
not understand the need to maintain her residence in a safe and habitable
condition.) Related to the issue of the real property are concems over its
disposition, Ms. Hennen has obtained several binders for the sale of her
residence, and had, as of the date of the hearing, not selected which offer to
accept, This potentially could result in one or mote interested potential
purchasers deeming her lo be in breach of a contract when one offer is finally
accepted.
Before a Guardian may be appointed for aperson, even when the person suffers
from functional limitations, and has a lack of understanding and appreciation
of the nature and consequences of such functional timitations, there also must
bea finding that there is a likelihood that the person will suffer harm as. tesult
thereof (see, Mental Hygiene Law § 81.15(b)(3) and (c)(4)). Moreover, there
‘must be a necessity for the appointment of a Guardian to prevent such harm
(see, Mental Hygiene Law § 81.15(b)(4) and (¢}(6)).
‘With regard to most aspects of Ms, Hennen’s tife there is no basis for finding
that a Guardian will serve to prevent harm, Ms. Hennen, without the services
of a Guardian will attend to all her activities of daily living and make such
lifestyle choices aa she prefers. Ms. Hennen does not in any sense seem to be
8 person whose behuvior or opinions can be controlled by a Guardian by any
smeans short of the most intrusive restrictions on her liberty and her right to
make decisions, In this Court's view there would be more harm in such a
“remedy” than will be suffered by Ms. Hennen if she is able to live without a
Guardian after the resolution of the specific issues related to the real Property
that until recently was held by the Trust.
The clear and convincing evidence shows the need only for a Special Guardian
to assist Ms. Hennen with her expressed preference to obtain title to the subject
residential premises, and to thereupon sell the property. Because of Ms.
Hennen’s history of failing to maintain a utilitarian relationship with a lawyer,
the Special Guardian shall be empowered to enter a retainer with counsel