In re Peideman , 124 Misc. 2d 541 ( 1984 )

OPINION OF THE COURT

C. Raymond Radican, J.

In this proceeding pursuant to SCPA article 17-A for the appointment of a guardian, standby guardian and an alternate standby guardian of the person and property of an alleged mentally retarded person, the petition is granted, it appearing to the satisfaction of the court that the said respondent is a mentally retarded person within the meaning of SCPA article 17-A.

The court observes that SCPA 1753 (subd 1) appears by its terms to authorize the designation of standby guardians only upon consent of parents or guardians and alternate standby guardians only on the application and consent of parents. Here the alleged mentally retarded person is without parents and until the granting of this application, without a guardian. A literal reading of the statute would require the court to withhold the designation of a standby guardian until the appointment of a guardian who may then in his or her fiduciary capacity consent, consistent with the literal provisions of SCPA 1753. No mechanics are provided for the appointment of alternate standby guardians in the absence of parents. The statute as drafted could involve multiple applications and subject all concerned to the additional costs and inconvenience attendant thereto. This appears particularly inappropriate where the nominated guardian is a party to this proceeding and has by the petition sought the designation of the standby and alternate standby guardian. Under these circumstances, the court is satisfied that the consent of the proposed guardian is sufficient without need of further proceedings or formal qualification. It is suggested that legislation be enacted to permit the result achieved here.

Accordingly, John T. Ostheimer will be appointed guardian of the person and property of the respondent herein and Kurt F. Ostheimer will be appointed as standby guardian and John J. Nettis as alternate standby guardian of the person and property of said respondent upon their qualifying pursuant to statute. The letters to be issued shall contain appropriate provision restraining each of the designated guardians from collecting or disposing of any property of respondent without further order of this court.