## Facts

- Francis E. Maher, an attorney, suffered a serious stroke in December 1992, leaving him with right-sided hemiplegia and aphasia and requiring brain surgery.
- Maher’s son petitioned under former Mental Hygiene Law article 77 for appointment of a conservator for Maher’s property; the court appointed a temporary receiver and a guardian ad litem.
- The guardian ad litem initially reported Maher was incapable of managing business and financial affairs and recommended a conservator.
- After reported marked improvement, Maher and the guardian ad litem sought discontinuance; the court discontinued the matter and converted it to a proceeding under newly enacted Mental Hygiene Law article 81.
- The son continued to seek a property guardian, asserting renewed deterioration, confusion, and irrational behavior.
- Maher revoked a power of attorney previously granted to his son and executed a new power of attorney naming a long-associated attorney.
- At the article 81 hearing, witnesses testified Maher could understand information and communicate his wishes through nonverbal means despite aphasia.
- The Supreme Court found the son did not prove incapacity or need for a guardian by clear and convincing evidence and dismissed the petition with prejudice.

## Issues

1. Whether Maher was an “incapacitated person” under Mental Hygiene Law article 81.
2. Whether the petitioner proved by clear and convincing evidence both incapacity and that appointment of a property guardian was necessary.
3. Whether severe physical disability and aphasia, together with family conflict, warranted guardianship despite evidence of functional decisional ability and use of a power of attorney.

## Decision

- The Appellate Division affirmed the judgment dismissing the guardianship petition with prejudice.
- The court held the petitioner failed to meet the clear and convincing evidence standard required by article 81.
- The court agreed that physical disability and communication limitations did not, on this record, establish functional incapacity to manage property.
- The court concluded the trial court properly applied article 81’s functional assessment and least-restrictive approach, crediting evidence of Maher’s ability to understand and communicate his choices.

## Legal Principles

- Under Mental Hygiene Law article 81, incapacity is determined functionally, including whether the person is likely to suffer harm due to inability to manage personal needs or property and whether the person can adequately understand and appreciate the nature and consequences of that inability.
- The petitioner bears the burden to prove incapacity and the necessity of a guardian by clear and convincing evidence.
- Courts must consider the least restrictive form of intervention and tailor relief to the individual’s actual functional limitations rather than impose broad control based on diagnosis, age, or physical impairment.
- Communication deficits (including aphasia) do not alone establish legal incapacity if the person can understand information and reliably communicate decisions by alternative means.
- Family disagreement and disapproval of an adult’s choices do not substitute for proof of statutory incapacity or necessity for guardianship.

## Conclusion

The court affirmed dismissal of the petition because the petitioner did not prove by clear and convincing evidence that Maher was functionally incapacitated or that a property guardian was necessary, and article 81 required a least-restrictive response consistent with Maher’s demonstrated ability to understand, decide, and communicate his wishes.


In re Maher, 207 A.D.2d 133, 621 N.Y.S.2d 617 (N.Y. App. Div. 2d Dep’t 1994)