April 21, 2009
IN THE MATTER OF VIRGINIA VIGNOLA-CAVALLONE, AN ALLEGED INCAPACITATED PERSON.
On appeal from the Superior Court of New Jersey, Chancery Division-Probate Part, Bergen County, Docket No. P-538-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 25, 2009
Before Judges Cuff, C.L. Miniman and King.
In this appeal, we review the June 8, 2007 judgment finding Virginia Vignola-Cavallone legally incapacitated and appointing her daughter guardian of her person and property. Appellant Frank Vignola, the son of Virginia Vignola-Cavallone, contends that a 2004 power of attorney is the product of forgery and that the trial judge should not have ignored his mother's expressed intent in 1995 when she was competent that he, rather than his sister, should be her representative for health care decisions. We affirm.
The 2007 judgment declared Vignola-Cavallone legally incapacitated, discharged respondent Maria Rulton and appellant as temporary co-guardians, and appointed Rulton as permanent guardian of the person and estate of Vignola-Cavallone. Appellant and respondent are siblings. The judgment also revoked a durable power of attorney for health care and instruction directive executed by Vignola-Cavallone on November 16, 1995. The 1995 document designated appellant as his mother's health care representative. The 2007 judgment also revoked an October 5, 2004 durable power of attorney designating respondent and appellant as attorneys-in-fact and a health care directive executed the same day designating respondent as attorney-in-fact.
In his May 25, 2007 oral opinion, Judge Contillo found that there was sufficient evidence regarding Vignola-Cavallone's capacity in 2004 to "question . . . the extent to which [the October 2004 powers] reflect the clear, competent, considered, unincapacitated determination of Virginia." He also noted that respondent lived in close proximity to her mother and had been primarily responsible for her mother's personal needs for years.
The judge further found that respondent insisted that funds derived from the sale of their mother's home be set aside for her care.
Judge Contillo found that Vignola-Cavallone was in a placement in which she received good care and had formed relationships valuable to her. The judge also found that the siblings had demonstrated that they cannot work together. The judge observed that appellant was headstrong and feared that he might bar access to his mother. The judge had no such fears that respondent would prevent her brother from seeing their mother. The judge also found that respondent would involve appellant in decisions regarding the health of their mother, despite her designation as sole guardian. He expressed concerns that appellant would not similarly involve his sister.
As to the property of their mother, Judge Contillo emphasized respondent's prior efforts and vigilance to protect their mother's assets. He also cited appellant's unorthodox money management and appellant's view that his interests and his mother's interests are synonymous. The judge also concluded that it made no sense to sever guardianship of the person and the property.
Our review of the record demonstrates that the findings of fact are supported by the record and Judge Contillo properly applied the governing law to the facts as he found them. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons expressed in Judge Contillo's May 25, 2007 oral opinion.
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