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 interests.
    • 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 temporary conservators.
  • 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 own decisions.
  • 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.