New York Family Law Blog
In this guardianship proceeding, respondent, an alleged incapacitated person (AIP), commenced the instant Art. 81 proceeding, via a self-petition, seeking to have a guardian appointed to manage his personal needs and his property. In his self-petition, respondent nominated his neighbor as his guardian. A New York Family Lawyer said that following the filing of the initial petition, the nephew of respondent, filed a cross-petition similarly seeking the appointment of a guardian for respondent but opposing the nomination of the neighbor. Subsequent to the commencement of the cross-petition, respondent withdrew his self-petition. Following several conferences, the instant matter was set down for a hearing, wherein several witnesses testified.
A New York Custody Lawyer said that based upon the credible and documentary evidence adduced at the hearing, the court determines that a cross-petitioner, has demonstrated by clear and convincing evidence that respondent is incapacitated. Specifically, the court determines that respondent is unable to provide for his personal needs and the management of his property management. Respondent cannot adequately understand and appreciate the nature and consequences of such inability and is likely to suffer harm if a guardian is not appointed. Though cross-petitioner has met his burden, the evidence reveals that respondent executed advance directives which address all of his personal needs and the management of his property. Thus, the appointment of a guardian is not warranted under the circumstances.
The issue to be resolved in this case is whether respondent should be placed under guardianship.
A Nassau County Family Lawyer said the legislative purpose of MHL §81 Guardianship proceeding is to promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person’s life.
A Nassau County Custody Lawyer said that incapacity, as defined by MHL §81.02 (b), is a determination that an alleged incapacitated person is likely to suffer harm because of said person is unable to provide for personal needs and/or property management; and said person cannot adequately understand and appreciate the nature and consequences of such inability. Thus, whether to appoint a guardian is a matter of discretion requiring appropriate when the court to determine that the person alleged to be incapacitated consents to the appointment of a guardian or actually needs one.
A guardian should be appointed if and when the court determines that such appointment is necessary to provide for the personal needs and property management of a person alleged to be incapacitated and there is consent for the appointment or a finding of incapacity as defined. Incapacity is the inability to provide for personal needs and/or property management coupled with the inability to appreciate such inability. Whether someone can provide for his/her personal needs and or property management requires an inquiry and analysis of all available resources, such as a power of attorney. Such a determination also necessarily involves an inquiry and analysis of a person’s functional level and his/her ability to manage all activities of daily living.
If there are mechanisms in place and resources, such as a power of attorney, which adequately provide for a person’s needs, the court should deny the petition and not appoint a guardian. In one case, the court denied the petition seeking an appointment of guardian to manage respondent’s property after finding, inter alia, that the person alleged to be incapacitated, through the execution of a power of attorney, had adequately provided for the management of his property, thereby obviating the need for a guardian.
The criteria for a determination on the issue of incapacity under MHL §81.02(a)(2) is crucial to the detailed and fact-specific guardianships that Article 81 of the MHL was designed to produce. Conclusory allegations without specific factual allegations of incapacity are insufficient and warrant dismissal. This is primarily because the Fifth Amendment protections against self-incrimination apply to Article 81 proceedings where a person’s life and liberty are at risk due to allegations of mental illness or incapacity, requiring a petitioner to present specific factual allegations regarding the AIP’s incapacity. The specific factual allegations must be supported by clear and convincing evidence of the AIP’s incapacity.
To determine incapacity, the court must undertake a detailed analysis, on the record, of the physical, mental, and financial health of the alleged incapacitated person. The Court is required to make an assessment of any physical illness, any mental disability and all other relevant facts and circumstances regarding functional level and understanding and appreciation of the nature and consequences of his or her functional limitations. The totality of the circumstances including limitations in understanding, vulnerability to undue influence and fear of loss of assistance caused by dependence on a guardian and extent of isolation from other resources.
The court credits the testimony of the witnesses, which collectively reveals that as early as January 2007, respondent was exhibiting signs of Dementia. Respondent is described as being confused, unfocused, unresponsive to questions, and frequently changed topics in the middle of conversations. Similarly, there was evidence to suggest that respondent, an elderly frail man, required assistance with most activities of daily living and was unable to manage his finances. The most compelling testimony was elicited from a physician who testified that he examined respondent and that based on his exam he concluded respondent exhibited signs of Dementia. He noted that respondent was a poor historian, was not oriented to place and time, when prompted provided disjointed medical information, and displayed both short term and long term memory lapses. It was the doctor’s medical opinion that respondent suffered from mild to moderate Dementia, possibly Alzheimer’s. Further, he testified that respondent lacked poor insight and judgment and was unable to understand the extent of his shortcomings.
Though the court credits the testimony of other witnesses, including respondent’s niece, most of their testimony concerned the time period between 1983 and prior to 2005 which provided very little relevant testimony concerning respondent’s functional limitations. Most of the testimony concerned her interaction with respondent from 1995 through 2004. Of some relevance, the witness testified that she recalled seeing her uncle in Hunter and tried to explain to him that her mother was ill, suffering from Alzheimer’s. Though the niece testified that she had to repeat information previously given, there is no contemporaneous medical evidence to support a finding that respondent suffered from a mental illness at that time.
Similarly, the court credits the testimony of respondent’s nephew that from 1976 through 2003, he has had sporadic contact with his uncle. Most of his contact with his uncle centered on family events, mostly summer time gatherings in upstate New York. From 2004 through 2005, the nephew had very little contact with his uncle. He, however, testified that in 2004 or 2005 he had a conversation with respondent concerning the release of family funds or funds purportedly belonging to her mother. During the conversation, respondent indicated that he was having difficulties with investments, people were watching him and he raised concerns about his safety. Though the testimony was uncontradicted, there is also evidence that respondent was routinely secretive of his and his family’s finances and that he was often times reluctant to release funds to family members. Other than isolated instances where respondent requested that information be repeated to him or he asked repeated questions, there is no medical evidence to demonstrate that at or about the time of the conversations referred to by the nephew or the niece, respondent suffered from a mental illness.
Lastly, the court credits the testimony of the neighbor and the lawyer, to the extent that up until his hospitalization in 2006, respondent was fairly active. He was able to perform most of, if not, all the activities of daily living with little or no help. Though respondent required the assistance of his neighbor, he was for the most part performing most of his daily functions. Respondent was eating regularly, he was attending to his medical needs, and his finances were being managed. The evidence suggests, however, that his activities appeared to have lessened around the year 2005. He was traveling less and required further assistance from his neighbor.
Thereafter, respondent execute a deed conveying an interest in his home to his neighbor and her daughter. According to the lawyer, she meet with respondent privately, explained the purpose of the document and thereafter respondent executed it. Similarly, the lawyer testified that at respondent’s request she prepared a durable power of attorney and health care proxy, naming the neighbor as his representative. She testified that the documents were explained to respondent and that he executed the documents thereafter. Though cross-petitioner contends that neighbor arranged to have the documents prepared, there is no credible evidence to support such a finding. The neighbor’s sole involvement was to procure an attorney, at respondent’s behest, and to drive respondent to the appointment/meeting with the attorney. The lawyer testified that she had a private meeting with respondent wherein she discussed the contents of the documents to him and after discussing the documents, he executed them. There is no evidence of coercion or any evidence that the neighbor instructed the lawyer what documents to prepare and what the documents should provide for. Lastly, there is no evidence to suggest that respondent was incapacitated or in anyway incompetent at the time he executed the advance directives.
While the evidence clearly demonstrates respondent is incapacitated, is unable to provide for his personal needs and/or property management, cannot adequately understand and appreciate the nature and consequences of such inability, and is likely to suffer harm because of his shortcomings, the circumstances do not warrant the appointment of a guardian. It is well settled that even if all the elements of incapacity are present, a guardian should be appointed only as a last resort, and should not be imposed if available resources or other alternatives will adequately protect the person. Such resources have been defined to include a durable power of attorney, health care proxy, and/or a home health aide. The existence of such resources promotes the statutory goal of requiring dispositions which are the least restrictive form of intervention. Here, respondent executed advance directives in May 2005. Though it is well settled that the court may, in its discretion, set aside, modify or amend an executed appointment or delegation of power upon a showing that the agent abused its authority, or that the document was executed at a time of incapacity, or because the agent or grantee is unable or unwilling to fulfill its duties. Cross-petitioner has not proffered sufficient evidence which warrants such action. Cross-petitioner’s assertion that the power of attorney and health care proxy were executed at a time of incapacity or when respondent was incompetent is not supported by the evidence. Such a finding would be, at best, speculative. Moreover, there is no evidence to support a finding that the designated agent, the neighbor, abused her discretion or that she is unable or unwilling to serve as a fiduciary.
Based on the foregoing, it is the court’s determination that cross-petitioner has demonstrated by clear and convincing evidence that respondent is incapacitated as defined by statute. The court, however, finds that prior to his incapacity, respondent executed a durable power of attorney and health care proxy naming the neighbor as his attorney-in fact and as his health care proxy. The evidence demonstrates that with the assistance of the neighbor and a home health aide, respondent has been able to manage his daily activities of living, his personal needs, his finances and property. It is the court’s determination that no showing has been made to warrant the modification, amendment or revocation of the durable power of attorney or health care proxy. Under the circumstances, it is the court’s determination that the appointment of a guardian is not warranted.
The Court hereby Ordered that the cross-petition be dismissed. It is further Ordered that any parties who provided services in the instant proceeding and who are entitled to compensation pursuant to the Mental Hygiene Law, submit an affidavit specifying in detail any and all services rendered, the time spent rendering said services, and the fees charged for the same, if any to the petitioner, cross-petitioner and to the Court, within twenty days (20) of service of a copy of this Order.
Incompetent persons who are unable to take care of themselves and their properties should be placed under guardianship. Consult now in Stephen Bilkis and Associates for a competent advice regarding such matter. Our Bronx County Family Lawyers are likewise always ready to give you pieces of advice on family matters.