In Appointment of Guardian, Appellate Division Overrides “Kinship-Hierarchy Preference” Where Result Would Be Contrary To Best Interests Of The Ward

In re S.H. was a contested guardianship litigation centering on who should be appointed guardian for S.H., a twenty-eight year old incapacitated woman. S.H. had lived with her mother, who “dutifully and selflessly cared for” S.H. her entire life. However, S.H.’s sister opposed their mother’s appointment , based upon the actions of the mother’s live-in boyfriend. The sister sought to be appointed guardian for S.H., and this application was supported by the mother’s ex-husband (father of S.H. and her sister), as well as Adult Protective Services (“APS”) and the court-appointed attorney for S.H.

The evidence demonstrated that the live-in boyfriend “frequently touched and embraced” S.H. excessively and inappropriately. Although his behavior did not rise to the level of unlawful sexual contact or assault, the trial court found the behavior to be inappropriate, and a source of anxiety to S.H.

Despite numerous opportunities, the court found that the mother failed to shield her daughter from this behavior. Therefore, the court appointed the sister as guardian. The mother appealed.

The Appellate Division acknowledged the “kinship-hierarchy preference” applicable to selecting a guardian for an incapacitated adult: “a court shall prefer the ward’s spouse, or if there is none, the next closest relative.” Nevertheless, that hierarchy preference may be overridden where such appointment would be “affirmatively contrary to the best interests” of the incapacitated person. Consequently, the appeals court affirmed the trial court’s decision to bypass the mother in favor of the sister.

Although it affirmed the trial court’s decision, the Appellate Division noted that the trial court had failed to address S.H.’s stated preferences regarding her living arrangements. S.H. wanted to be with her mother and her father, although the sister planned to place her in a group home for developmentally disabled adults. However, this failure amounted to harmless error, because “the need to protect [S.H.] from [her mother’s boyfriend’s] inappropriate contact overrode any preference [S.H] had to live with her mother.”

The Appellate Division also noted the “unfortunate” reference made by S.H.’s court-appointed attorney to looking out for S.H.’s “best interests,” noting that this is the role of a guardian ad litem.

A copy of In re S.H. can be found here – Matter of S.H., An Alleged Incapacitated Person

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