In re Hoffman , 732 N.Y.S.2d 394 ( 2001 )

—Order unanimously reversed on the law without costs, order granted January 21, 2000 continued pending outcome of hearing and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Petitioner commenced this proceeding under article 81 of the Mental Hygiene Law seeking appointment as the personal care and financial guardian of respondent. Petitioner alleges that respondent is an incapacitated person who suffers from medical conditions that affect her ability to make her own health, personal care and financial decisions and that respondent’s brother has mismanaged respondent’s funds. Supreme Court erred in appointing petitioner as respondent’s personal care and financial guardian without conducting a hearing pursuant to Mental Hygiene Law § 81.11. Further, the court failed to make the requisite findings (see, Mental Hygiene Law § 81.15 [b], [c]). We therefore are unable to determine on the record before us whether “the powers granted to [petitioner] are the least restrictive form of intervention, or, for that matter, whether there is clear and convincing evidence of incapacity” (Matter of Ruth TT., 267 AD2d 553, 555; see generally, Matter of Lula XX., 224 AD2d 742, 743-744, Iv dismissed 88 NY2d 842, 1040; Matter of Maher, 207 AD2d 133, 139-140, Iv denied 86 NY2d 703, rearg denied 86 NY2d 886). Thus, we reverse the order and remit the matter to Supreme Court to conduct a hearing on the petition and make the requisite findings. Because there is some evidence in the record that respondent’s brother may have squandered respondent’s funds, we continue the court’s prior appointment of a temporary financial guardian pending the outcome of the hearing. (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Mental Hygiene Law.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Gorski and Lawton, JJ.