The Order is hereby amended to reflect the correct date of the Order.
WHEREAS, a proceeding was commenced pursuant to Article 81 of the Mental Hygiene Law (“MHL”) for the appointment of a guardian of the personal needs and property management of Nancy K., an alleged incapacitated person (hereinafter sometimes referred to as the “AIP”)
WHEREAS, this Court issued an Order dated March 24, 2021, whereby the hearing in this proceeding was trifurcated into three possible phases: (i) whether the alleged incapacitated person is presently an incapacitated person as defined by the MHL Article 81 and needs a guardian; (ii) whether the alleged incapacitated person was incapacitated at the time she executed advance directives and was incapacitated at the time William McEnaney married Nancy K. in November 2020; and (iii) evidence from the cross-petitioner in support of his cross-petition; and
WHEREAS, the Court having further considered the MHL and the necessary elements and issues applicable and pertinent to this proceeding; and
WHEREAS, further Hearings in this matter having been conducted by this Court on March 30, 2021;
NOW, THEREFORE, it is hereby
ORDERED that the order of this Court dated March 24, 2021 (Knobel, J.), which trifurcated this proceeding, is amended and modified as set forth below; and it is further
ORDERED, that this proceeding for the appointment of a guardian for Nancy K., an alleged incapacitated person (“AIP”) shall be tried in four phases on the following issues:
Phase I — whether the AIP is presently incapacitated as that term is defined by MHL Article 81;
Phase II - whether the AIP had the necessary level of capacity at the time she executed advance directives in October 2019, and whether the AIP had the necessary level of capacity to enter into a marriage contract at the time she purportedly married William McEnaney in November 2020;
Phase III — in the event that it is determined the AIP had the necessary level of capacity at the time she executed advance directives in October 2019, whether those advance directives are sufficient and reliable to obviate the need for the appointment of a guardian of the AIP, including whether there has been a breach of fiduciary duty by any agent named under a particular advance directive; and
Phase IV — in the event that the appointment of a guardian is deemed necessary pursuant to Article 81 of the MHL, the Court will consider and determine who, among those individuals that are qualified and appropriate, shall be appointed as personal needs guardian and/or property management guardian of and for the Nancy K.; and it is further
ORDERED, that in the event the Court reserves decision with respect to any of the issues at any Phase of the hearing in this proceeding, the hearing shall continue to its next Phase until the hearing is concluded and the parties rest; and it is further
ORDERED, that the hearing in this proceeding shall continue on April 13, 2021, at 10 a.m.
Gary F. Knobel, J.