Matter of LE (NS)

Holding The court denied the petition for the appointment of a guardian because the petitioner failed to prove by clear and convincing evidence that the respondent was incapacitated or that guardianship was necessary. The court found that the respondent could perform all activities of daily living and that the alleged undue influence was not supported by sufficient evidence to overcome the presumption of voluntary intent.

The court’s words

The AIP can perform all activities of daily living and can make her needs known.

90 Misc 3d 307, at the official text

there is no demonstrated need for guardianship given the functional abilities of the AIP and Court-ordered guardianship would not be appropriate

90 Misc 3d 307, at the official text

the AIP vehemently opposes the appointment of a guardian

90 Misc 3d 307, at the official text

the AIP has sent text messages (particularly Exhibits 21 and 22) which were received in evidence showing that the AIP strongly opposes the appointment of a guardian

90 Misc 3d 307, at the official text

the AIP can independently perform almost all activities of daily living

90 Misc 3d 307, at the official text

none of the testimony or evidence received in this case conclusively suggests that the AIP's actions were the result of undue influence

90 Misc 3d 307, at the official text

the petitioner has failed to prove the element of incapacity required under MHL §81.02 (a)(2) by clear and convincing evidence

90 Misc 3d 307, at the official text

the petitioner has failed to prove the element of necessity required under MHL §81.02 (a)(1) by clear and convincing evidence

90 Misc 3d 307, at the official text