Certification Program Approved by the Office of Court Administration

Transcription

1 n s t i t u t e I N Y C L A - C L E C ertified G uardian, C ourt Evaluator and C ounsel for AIP Training : Certification Program Approved by the Office of Court Administration Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers Association, 14 Vesey Street, New York, NY scheduled for December 9, P r o g r a m C h ai r : Clifford A. Meirowitz, Law Offices of Clifford A. Meirowitz PLLC F ac u l t y : Peachetta S. defreitas, Esq., Law Offices of Alfreida B. Kenny Steven R. Finkelstein, Esq., Finkelstein & Virga, P.C. Afreida B. Kenny, Esq., Law Offices of Alfreida B. Kenny Tammy R. Lawlor, Esq., Miller & Milone Marita L McMahon, Esq., NYS Office of Court Administration,Guardian and Fiduciary Services Guardianship Proceedings Hon. Ellen Spodek, Supreme Court, Kings County Peter J. Strauss, Esq., Epstein Becker & Green, P.C. Edward M. Virshup, Court Examiner 7 TRANSITIONAL and Non-transitional MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 7 Transitional and Non-Transitional credit hours: 1 Ethics; 2 Skills; 4 Professional Practice.

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3 Certified Guardian, Court Evaluator, and Counsel for Alleged Incapacitated Person Training Thursday, December 9, :00AM to 5:00PM Information Regarding CLE Credits and Certification The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in \ and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. iv. You will receive your MCLE certificate as you exit the room at the end of each day. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. v. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. If it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. vi. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider!

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5 CERTIFIED GUARDIAN, COURT EVALUATOR AND COUNSEL FOR ALLEGED INCAPACITATED PERSON TRAINING Thursday, December 9, :00 A.M. 5:00 P.M. AGENDA I. 9:00 9:05 Introductory Remarks Clifford A. Meirowitz, Esq. Law Offices of Clifford A. Meirowitz, PLLC. II. 9:05 9:55 Part 36 Rules of Chief Judge Marcie Serber, Esq. NYS Office of Court Administration, Guardian and Fiduciary Services Guardianship Proceedings III. IV. 9:55 10:45 Overview & Concepts of Article 81 and Comparison with Guardians pursuant to SCPA Article 17 and 17A Tammy R. Lawlor, Esq Miller & Milone 10:45 11:00 BREAK V. 11:00-12:00 View from the Bench Honorable Ellen Spodek Supreme Court, Kings County VI. 12:00 1:00 LUNCH (on your own) VII. 1:00-1:45 The Court Evaluator: Duties, Responsibilities & Ethics; and The Attorney for the Alleged Incapacitated Person Alfreida B. Kenny, Esq. Law Offices of Alfreida B. Kenny VIII. 1:45 2:30 Duties, Responsibilities & Ethics of the Guardian of the Person and Property Peachetta S. defreitas, Esq. Law Offices of Alfreida B. Kenny IX. 2:30 3:15 Family Health Care Decisions Act Peter J. Strauss, Esq. Epstein Becker & Green, P.C.

6 X. 3:15 3:30 BREAK XI. 3:30 4:15 Forensic Accounting & Recovering Misappropriated Funds Steven R. Finkelstein, Esq. Finkelstein & Virga, P.C. XII. 4:15 5:00 Record Keeping & Reporting Requirements Edward M. Virshup Court Examiner

7 CERTIFIED GUARDIAN, COURT EVALUATOR AND COUNSEL FOR ALLEGED INCAPACITATED PERSON TRAINING Thursday, December 9, :00 A.M. 5:00 P.M. Table of Contents Guardian and Fiduciary Services Guardianship Proceedings Part 36 of the Rules of the Chief Judge PowerPoint presentation Article 81 and Comparison with Guardians Pursuant to SCPA Article 17 and 17A Application to Appoint Guardian Notice of Guardianship Proceedings Order to Show Cause Considerations for Counsel for the Alleged Incapacitated Person in an Article 81 Guardianship Proceeding The Court Evaluator Considerations for the Court Evaluator in an Article 81 Guardianship Proceeding. Tips on Marshaling the Incapacitated Person s Bank Accounts and Establishing and Maintaining the Guardianship Bank Accounts Duties as Guardian of the Person New York s New (2010) Family Health Care Decisions Act Simplified Account Instructions Faculty Biographies

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9 MHL Article 81 Guardianship Training Appointments Pursuant to Part 36 of the Rules of the Chief Judge 22 NYCRR 36

10 Overview and Rationale Appointments to be fair, impartial and beyond reproach. Merit selection. No favoritism, nepotism or politics. Compensation limitations. Publication of appointments and compensation.

11 Categories related to guardianship Guardians Court Evaluators Attorneys for Alleged Incapacitated Persons Court Examiners Supplemental Needs Trustees

12 Distinguish these categories Guardian MHL Art 81, SCPA Art 17-A, CPLR Art 12 Attorney for Child (Law Guardian) Family Court and matrimonial proceedings. Privately paid (not in 3 rd Dept.) Guardian ad litem (GAL) Surrogate s s Court, Supreme Court

13 This training course is certified for these categories ONLY: Guardian Court Evaluator Attorney for Alleged Incapacitated Person

14 This course is not certified training for: Guardians ad litem Law Guardians Court Examiners Additional training required from Appellate Division Supplemental Needs Trustees

15 Categories cont d: Secondary Appointees Persons / entities performing services for guardians (and receivers): Counsel to guardian Accountant for guardian Auctioneer for guardian Appraiser for guardian Property manager for guardian Real estate broker for guardian

16 Exceptions to Part 36 (guardianship) Guardian who is a relative. Guardian nominated by the ward. Guardian proposed by a party. SNT trustee nominated by beneficiary. SNT trustee proposed by trust proponent. One with legal duty (e.g. DSS).

17 Exceptions cont d: Not-For For-Profit as personal or property guardian. Not-For For-Profit as court evaluator. Bank or trust company as depository or SNT trustee. Appointments without compensation.

18 Appointments Must be made by judge Secondary appointments included. Must be from lists Judge may appoint non-list if: Written finding of good cause Filed with fiduciary clerk Judge must send copy to Chief Administrator.

19 Disqualifications from Appointment Judges, housing judges, town and village justices. Relatives of judges AND relatives of the spouses of judges (and spouses of the relatives). Within the 4 th degree (1 st cousin). JHOs on panel in a court in a county. Court employees (salary grade 24) and their close relatives (district-wide or statewide).

20 Disqualifications cont d: Political party chair, executive director or equivalent; state or county; and close relatives 2 year prohibition for politician and family Includes members, associates, counsel and employees of law firm or entity (only during period of association). Judicial candidate s s campaign staff and their close relatives by that judge.

21 Disqualifications cont d: Former judges and close relatives within jurisdiction for 2 year period. Disbarred or suspended attorneys. during suspension or disbarment. Felons unless certificate of relief. Misdemeanants for 5 years post sentencing, unless waived.

22 Important guardianship disqualifications cont d: Guardian (or receiver) may not be appointed own counsel to guardian, Law firm associated with guardian (or receiver) may not be counsel to guardian, UNLESS court finds compelling reason.

23 Important guardianship disqualifications cont d: Attorney for AIP may not be guardian or counsel to guardian (absolute ban). Court evaluator may not be appointed guardian UNLESS court finds extenuating circumstances In writing Filed with fiduciary clerk.

24 Limitations based upon compensation The caps $15,000 Rule $75,000 Rule One exception: Necessity to maintain continuity of representation or service Must be same person or entity.

25 Compensation defined: Written order signed by judge. Awards: fees, commissions, allowances, etc. Excludes: costs and disbursements. Date of the court order is the date of compensation.

26 May I accept this appointment? The $75,000 Rule Add all Part 36 compensation awards in prior calendar year. Example: To determine eligibility in 2010, add all compensation awarded in If total exceeds $75,000, then appointee may not accept compensated appointment in subsequent calendar year. Example: To determine eligibility in 2011, add all compensation awarded in 2010.

27 $75,000 Rule cont d Not a per se cap; rather a consequence if one exceeds the cap in one calendar year. Applies to new appointments only, may keep inventory. The disqualifications and compensation caps apply at the time of appointment.

28 May I accept this appointment? The $15,000 Rule Do I anticipate this appointment will result in compensation exceeding $15,000 in ANY calendar year? If no,, then appointee may accept; the $15,000 rule does not apply. If yes, then appointee must look at all appointments in current calendar year.

29 May I accept this appointment? The $15,000 Rule cont d: If Yes, (i.e. current appointment compensation anticipated to exceed $15,000): Did I accept an appointment in the current calendar year in which compensation is anticipated to exceed $15,000? If no,, then appointee may accept. If yes,, then appointee must decline.

30 Contact Us: Guardian & Fiduciary Services 25 Beaver Street Suite 1110 New York, NY GFS:

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32 Part 36 Paperwork UCS 872 UCS 872 Notice of Appointment / Certificate of Compliance Sent to appointee by court Appointee must sign Appointee returns to fiduciary clerk Fiduciary clerk enters receipt into data base.

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37 UCS 875 UCS 826 UCS 875: Statement of Approval of Compensation Court generated Does not apply to court examiners. UCS 826: Annual statement filed by the judge for court examiner compensation.

38 Law Firm Compensation Report UCS-876 Required if total members, associates and employees compensation is $50,000 or more. File by March 31, reporting on prior calendar year. List total amount for each individual member, associate and employee.

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40 Marcie A. Serber Deputy Statewide Coordinator NYS Office of Court Administration Guardian and Fiduciary Services 25 Beaver St Suite 1110 New York, New York Marcie Serber is the Deputy Statewide Coordinator for Guardian & Fiduciary Services of the Office of Court Administration of the NYS Unified Court System. Prior to her current position, Ms. Serber was Managing Inspector General for Fiduciary Matters for the Unified Court System. Ms. Serber was Special Counsel to the NYC Adult Protective Services and was Deputy Inspector General for the NYC Department of Investigation. She received her B.A. from Barnard College, her M.S. from the City University of New York and her J.D. from Brooklyn Law School.

41 Tammy R. Lawlor, Esq.

42 Tammy Lawlor, Esq. is a Partner at the Law Firm of Miller & Milone, P.C. Ms. Lawlor is a graduate of the Hofstra University School of Law and was admitted to the New York State Bar in She also holds a Masters of Business Administration, specializing in Finance. She has practiced with Miller & Milone, P.C. since 1997.

43 1. Mentally Retarded Person: a. Certified as being incapable of managing his or her affairs by reason of mental retardation. b. Certification: 1. One licensed physician and one licensed psychologist: 2. Two licensed physicians; * * one who is familiar with and has professional knowledge involving persons with mental retardation

44 2. Persons with Other Developmental Disabilities: a. Certified as having an impaired ability to understand and appreciate the nature and consequences of decisions. b. Disability is likely to continue indefinitely.

45 2. Persons with Other Developmental Disabilities: (continued) c. Disability is attributed to: 1. cerebral palsy, epilepsy, neurological impairment, autism, or traumatic head;* and originated before the age of 22; *except traumatic head injury can be at any age. 2. any other condition closely related to mental retardation and results in similar impairment of intellectual function or behavior and originated before the age of 22; 3. attributable to dyslexia, resulting from one of the above listed disabilities or mental retardation and originated before the age of 22;

46 1. Brought in Surrogate s Court 2. For a Person: Mentally Retarded; or Other Developmental Disabilities 3. Petitioner: a parent or any interested person over 18 years old; includes a corporation authorized to serve as Guardian as provided in the statute. 4. Venue: the county where the person resides, or may be the county where the parents reside. 5. Standby Guardians: a Standby Guardian should be similar age to the person with the disability. *Important to name one

47 Birth Certificate Request for Information Guardianship Form; Fingerprints Death Certificate of Predeceased Parent; Renunciation

48 1. Citation a. Must be served on the following individuals unless a waiver and consent or renunciation has been filed; b. Individuals: Parents; Adult children (if parents aren t Petitioner); Adult siblings (if parents aren t Petitioner); Spouse of person; Person having care or custody of the person, with whom he or she resides, other than parents or spouse; Person who is subject of proceeding, if over 14 years old; Grandparents, if both parents are deceased;

49 2. Notice of Petition a. Served by certified mail if parents not the Petitioner: Adult siblings; Adult children; MHLS in the judicial department where facility is located; Director of residential facility where person resides; One other person if designated in writing by the person; Such other persons the Court deems proper;

50 1. Guardian ad Litem: a. Statute does not require appointment. b. Some Courts appoint GAL to assess if it s not in person s best interests. 2. Mental Hygiene Legal Service: a. Must interview the person and file a written report with the Court advising whether it objects to the appointment of a Guardian.

51 1. Role and Authority of the Guardian a. Role is not clearly defined in Article 17-A; b. Statute provides guidance regarding bond and accountings; c. No guidance or definition of powers; d. Guardian is given full plenary powers to make decisions. 2. Accountability a. Article 17-A Property Guardian must file Accounting; b. Article 17-A Personal Guardian does not need to file Annual Report. 3. Modifications of the Guardianship a. Modifications may be requested by Person or Guardian. 4. Training a. No Training is mandated or required.

52 ARTICLE 17-A a. Certification as to Mental Retardation or Developmental Disability; b. No provision for the Appointment of Counsel or Court Evaluator; c. Limited requirements for the Appointment of Guardian ad Litem; d. Presumption of need for guardianship services for life; e. No Training required; f. Usually a quicker and less expensive approach.

53 ARTICLE 81 a. Focuses on the functional assessment and activities of daily living of the person; b. Requires the Appointment of Court Evaluator; c. Requires that the Order and Judgment Appointing the Guardian specifically define the authority and powers of the Guardian; d. Initial and Annual Reports are required; e. Training is required.

54 1. Look at the functioning level of the person: a. If a person is fairly high functioning and capable of making certain decisions and expressing wishes and preferences, then an Article 81 provides greater flexibility and independence. b. If a person is functioning at a lower level and is severely disabled then an Article 17-A may be more appropriate.

55 1. In most cases under Article 17-A, it is assumed that the appointment of a Guardian was to consent to medical treatment. 2. Under Article 81, the Court must grant specific authority to consent to medical treatment.

56 In re Scott Matthews In re Hofbauer Rivers v. Katz

57 Office of Mental Retardation and Developmental Disabilities regulations provide for the full participation of Guardians, appointed by way of Article 17-A or Article 81. With regards to decisions affecting the care and treatment of persons in either state operated or state certified OMRDD programs

58 1. Objection to an appeal of care and treatment; 2. Informed consent for service plans that involve risk; 3. Rights and responsibilities person receiving services; 4. Reportable incidents and abuse.

59 Article 81 provides better for the procedural and substantive rights of the individual who is disabled. Article 17-A provides broader powers to parents and/or guardians with less cost, no training requirements, and easier accounting requirements.

60 TAMMY LAWLOR, ESQ. Tammy Lawlor, Esq. is a Partner at the Law Firm of Miller & Milone, P.C. located in Garden City, New York. Miller & Milone, P.C. is a full service law firm, focusing in Elder Law, Guardianship, and Estates and Trusts. In addition she assists clients to engage in Medicaid planning, and has filed innumerable Medicaid applications. Ms. Lawlor is a graduate of the Hofstra University School of Law and was admitted to the New York State Bar in She also holds a Masters of Business Administration, specializing in Finance. She has practiced with Miller & Milone, P.C. since Ms. Lawlor has handled over one hundred Guardianships throughout the state of New York. She is a member of the New York State Bar Association Elder Law Section, the Nassau County Bar Association Elder Law Committee and the National Academy of Elder Law Attorneys. Ms. Lawlor is on the Executive Committee for the New York State Bar Association, is Co- Chair of the Health Care Committee for the Elder Law Section of the New York State Bar Association, a member of the Mental Health Committee for the Elder Law Section of the New York State Bar Association. She is the Chairperson for the 2010 New York State Bar Association Elder Law Section Fall Conference. She was involved in the Task Force for the Power of Attorney legislation. She is also on the Nominating Committee for the New York National Academy of Elder Law Attorneys. Ms. Lawlor has presented at numerous speaking engagements to fellow attorneys involving programs sponsored by the New York State Bar Association, as well as presented on a variety of topics to clients as well as to patients and staff at hospitals, assisted living facilities and skilled nursing facilities. She has authored several articles that have been published in the New York State Bar Association publications.

61 APPLICATION TO APPOINT GUARDIAN ARTICLE 81 M.H.L. Relevant statutes: Section Section (a) Section Section Venue (where presented) Who may commence a proceeding Notice Petition (contents of verified petition) CONTENTS OF THE VERIFIED PETITION 1. Name, age, address and telephone number of the alleged incapacitated person (AIP). 2. Name, address and telephone number of person or persons with whom the AIP resides, if any. 3. Description of AIP_s functional level. 4. If personal needs powers are sought, specific factual allegations that demonstrate the AIP is likely to suffer harm because of his/her inability to provide for personal needs. 5. If property management powers are sought, specific factual allegations that demonstrate the AIP is likely to suffer harm because of his/her inability to provide for property management. 6. Particular powers being sought and their relationship to the functional level and needs of the AIP. 7. Duration of the powers. 8. Approximate value and description of AIP s assets, and if AIP is a recipient of public assistance. 9. Nature and amount of any claim, debt or obligation of the AIP. 10. Names, addresses and telephone numbers of presumptive distributees. 11. Name, address and telephone number of the petitioner. 12. Name, address and telephone number of the proposed guardian, their relationship to the AIP and why they are suitable to act as such. 13. Any provisional remedies sought (Temporary Guardian, Injunction, TRO). 14. Available resources considered by petitioner and petitioner_s opinion as to their sufficiency and reliability. 15. Any other information that will assist the Court Evaluator in the investigation and report. 16. C.P.L.R (b) _ Prior application for similar relief.

62 Mental Hygiene Legal Services must be noticed and served on all cases where the AIP resides in a mental hygiene facility. Mental Hygiene Legal Services Office of Revenue & Investigation 170 Old Country Road HRA - ATTENTION: H. Gibbs Mineola, New York Church Street New York, New York 10013

63 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X In the Matter of the Application of (CAPTION) for the Appointment of a Guardian of the Person and/or Property of INDEX NO. NOTICE OF GUARDIANSHIP PROCEEDING (MHL (f)) (CAPTION) A Person Alleged to be Incapacitated X Place of Hearing: Date & Time: Honorable: Supreme Court, Kings County 360 Adams Street, Room Brooklyn, NY Nature of Proceeding: Appointment Needs Article 81 Guardianship Proceeding Seeking the Of a Guardian for Personal and Property Management of (AIP s Name) Alleged Incapacitated Person: Name: Address: Phone: Names and Addresses of Other Potential Interested Parties: Petitioner: Name: Page 1 of 1

64 Address: Phone: Attorney: Name: Address: Phone: 01 Notice of Guardianship Proceedings.wpd Page 2 of a

65 20. At an I.A.S.Part 76 of the Supreme Court of the State of New York, held in and for the County of Kings, at 360 Adams Street, Brooklyn, New York, on the day of P R E S E N T: HONORABLE J U S T I C E X In the Matter of the Application of, for the Appointment of a Guardian of the Person and/or Property of ORDER TO SHOW CAUSE Index No. SAMPLE, A Person Alleged to be Incapacitated X I M P O R T A N T AN APPLICATION HAS BEEN FILED IN COURT BY WHO BELIEVES YOU MAY BE UNABLE TO TAKE CARE OF YOUR PERSONAL NEEDS OR FINANCIAL AFFAIRS. IS ASKING THAT SOMEONE BE APPOINTED TO MAKE DECISIONS FOR YOU. WITH THIS PAPER IS A COPY OF THE APPLICATION TO THE COURT SHOWING WHY BELIEVES YOU MAY BE UNABLE TO Παγε 1 οφ 8

66 TAKE CARE OF YOUR PERSONAL NEEDS OR FINANCIAL AFFAIRS. BEFORE THE COURT MAKES THE APPOINTMENT OF SOMEONE TO MAKE DECISIONS FOR YOU, THE COURT HOLDS A HEARING AT WHICH YOU ARE ENTITLED TO BE PRESENT AND TO TELL THE JUDGE IF YOU DO NOT WANT ANYONE APPOINTED. THIS PAPER TELLS YOU WHEN THE COURT HEARING WILL TAKE PLACE. IF YOU DO NOT APPEAR IN COURT, YOUR RIGHTS MAY BE SERIOUSLY AFFECTED. YOU HAVE SAMPLE THE RIGHT TO DEMAND A TRIAL BY JURY. YOU MUST TELL THE COURT IF YOU WISH TO HAVE A TRIAL BY JURY. IF YOU DO NOT TELL THE COURT, THE HEARING WILL BE CONDUCTED WITHOUT A JURY. THE NAME, ADDRESS AND TELEPHONE NUMBER OF THE CLERK OF THE COURT IS: THERESA C. O LEARY CLERK IN CHARGE OF GUARDIANSHIP DEPARTMENT 360 ADAMS STREET - ROOM 850 BROOKLYN, NEW YORK (347) THE COURT HAS APPOINTED A COURT EVALUATOR TO EXPLAIN THIS PROCEEDING TO YOU AND TO INVESTIGATE THE Παγε 2 οφ 8

67 CLAIMS MADE IN THE APPLICATION. THE COURT MAY GIVE THE COURT EVALUATOR PERMISSION TO INSPECT YOUR MEDICAL, PSYCHOLOGICAL, OR PSYCHIATRIC RECORDS. YOU HAVE THE RIGHT TO TELL THE JUDGE IF YOU DO NOT WANT THE COURT EVALUATOR TO BE GIVEN THAT PERMISSION. THE COURT EVALUATOR S NAME, ADDRESS AND TELEPHONE NUMBER IS: SAMPLE YOU ARE ENTITLED TO HAVE A LAWYER OF YOUR CHOICE REPRESENT YOU. IF YOU WANT THE COURT TO APPOINT A LAWYER TO HELP YOU AND REPRESENT YOU, THE COURT WILL APPOINT A LAWYER FOR YOU. YOU WILL BE REQUIRED TO PAY THAT LAWYER UNLESS YOU DO NOT HAVE THE MONEY TO DO SO. 1. AT THAT HEARING AND IN THIS PROCEEDING YOU HAVE THE FOLLOWING RIGHTS: (A) YOU HAVE THE RIGHT TO PRESENT EVIDENCE. (B) YOU HAVE THE RIGHT TO CALL WITNESSES, Παγε 3 οφ 8

68 INCLUDING EXPERT WITNESSES. (C) YOU HAVE THE RIGHT TO CROSS EXAMINE WITNESSES, INCLUDING ANY WITNESS CALLED BY THE COURT. (D) YOU HAVE THE RIGHT TO BE REPRESENTED BY A LAWYER OF YOUR OWN CHOICE. IF YOU WANT THE COURT TO APPOINT A LAWYER TO HELP YOU AND REPRESENT YOU, THE COURT WILL APPOINT A LAWYER FOR YOU. YOU WILL BE REQUIRED TO PAY THAT LAWYER UNLESS YOU DO NOT HAVE THE MONEY TO SAMPLE DO SO. 2. SAID GUARDIAN, IF APPOINTED FOR YOU, SHALL HAVE THE AUTHORITY TO EXERCISE THE FOLLOWING POWERS ON YOUR BEHALF. THE POWER TO MAKE ALL RESIDENTIAL AND CARE ARRANGEMENTS FOR YOU, AND COMPLETE POWER TO MANAGE, INVEST AND EXPEND YOUR MONIES AND ASSETS FOR YOUR NEEDS. *(Sections 81:21 and 81:22 of the M.H.L. enumerate all powers. Be specific and list all those powers the petitioner is seeking for the guardian) On reading and filing the annexed petition of Παγε 4 οφ 8

69 duly verified the day of, 20, from which it appears that, the Alleged Incapacitated Person, resides at, Brooklyn, New York, is presently unable to manage his/her person and property by reason of illness, infirmity and mental weakness; and it appearing that said owns or possesses certain personal property within the State of New York, LET, (A.I.P)., and the Court Evaluator appointed herein, and, the distributees of SAMPLE (A.I.P. & their relationship) show cause before the Justice presiding at an I.A.S. Part 76 of this Court, to be held in and for the County of Kings, at the Courthouse, 360 Adams Street, Brooklyn, New York, on the day of, 200, at 9:30 A.M. of that day or soon thereafter as counsel can be heard why an order should not be made and entered herein: Appointing (Proposed Guardian ) or some suitable person, as Guardian of the personal needs, and/or property management of (A.I.P.) within the State of New York, based upon their qualifying in accordance with the laws of the State of New York: WHY Petitioner shall not have such other and further and different relief as may be just and proper. Παγε 5 οφ 8

70 SUFFICIENT reason appearing therefor; it is ORDERED, that of New York, is hereby appointed Court Evaluator herein to explain this proceeding to (A.I.P.) and to investigate the claims made in the petition; and it is further ORDERED, that of Brooklyn, New York is hereby appointed as attorney for the above- named (A.I.P.) to protect his/her interest in this proceeding and it is further *** ORDERED, that be and he/she is hereby appointed SAMPLE Temporary Guardian of the property of (A.I.P.), to protect his/her health and well-being pending the hearing on this application; and it is further *** ORDERED, that (Nominee) is directed to file a bond in the amount of $ with the Clerk of the Court within (10) days after the issuance of the Commission of temporary guardianship; and it is further *** ORDERED, that shall upon presentation of a certified copy of this Order, turn over to the sum of $ from the funds of ; and it is further *** ORDERED, that shall maintain the aforesaid funds in a separate bank account to be used exclusively for the care, support and maintenance of and that Παγε 6 οφ 8

71 shall account therefore at such time as the annual accounting of the Guardian to be appointed is submitted; and it is further ***These paragraphs are to be used where a Temporary Guardian is being appointed. ORDERED, that this Order to Show Cause, a copy of the Petition and the Notice of Proceeding upon which it is based, shall be served upon, the person alleged to be incapacitated, by personally delivering to not less than fourteen (14) days prior to the hearing date of this Order to Show Cause.( Upon a showing by the Petitioner that service can not be effectuated in the above manner, the Court may direct an alternative means of service-changes - effective 12/13/04), and it is further ORDERED, that this Order to Show Cause, Petition and Notice of Proceeding shall be SAMPLE served by facsimile, personal or by overnight delivery service to the office of the Court Evaluator and, the Court appointed attorney, within three (3)business days following the appointment of said and ;and it is further ORDERED, that this Order to Show Cause and the Notice of Proceeding shall be personally served or served by mail upon, not less than fourteen (14)days prior to the return date of this Order to Show Cause; and it is further ORDERED, that the Court Evaluator and (any Court Appointee) appointed herein shall comply with Part 36 of the Rules of the Chief Judge and file the notice of appointment and certification of compliance required by Section 36.4 (a) of the Rules of the Chief Judge. Παγε 7 οφ 8

72 E N T E R J. S. C. SAMPLE Παγε 8 οφ 8

73 Judge Ellen Spodek Judge Ellen M. Spodek has been a Justice of the Supreme Court since Earlier in her career, she was a Civil Court Judge in Kings County from January 2003 to May of 2005, when she was appointed to Family Court. She served in Family Court through December Subsequently, she became the Supervising Judge of Kings County Civil Court. Justice Spodek was born and raised in Brooklyn, New York. She attended New York City public schools. She went on to graduate from the SUNY at Albany. She graduated from Fordham Law School in She worked for the NYC Corporation Counsel s Office. She left the Corporation Counsel s office to join Jackson and Consumano as a trial attorney. In 1995 she formed her own firm, Spodek & Barrett. Justice Spodek was instrumental in starting the Claro Clinic in the Kings County Civil Court, in connection with Brooklyn Law School and the Brooklyn Bar Association Volunteer Lawyers Project which provides the public with legal counsel on civil debt-related matters.

74 1 Alfreida B. Kenny, Esq. th 11 Park Place, 10 Fl. New York, New York (212( CONSIDERATIONS FOR COUNSEL FOR THE ALLEGED INCAPACITATED PERSON IN AN ARTICLE 81 GUARDIANSHIP PROCEEDING. November 30, 2010 I. THE ROLE OF COUNSEL A lawyer is to abide by a client s decisions concerning the objectives of representation and, as required by Rule 1.4 shall consult with the client as to the means by which they are to be pursued. 22 NYCRR, Part 1200, Rule 1.3. It is the role of counsel to advocate the wishes of the client even if counsel believes that the client s judgment is not good, what the client wants is not in the best interest of the client, or what the client wants could prove to be detrimental to the client over the course of time. It is the role of counsel to counsel client, make recommendations to the client, attempt to persuade the client to pursue the recommendations that counsel has made to the client. Ultimately, the client makes the decision and counsel must follow the directions of the client. Poor judgment and bad decisions are not tantamount to diminished capacity. If the client has diminished capacity, counsel must determine whether the client has sufficient capacity to direct counsel. 22 NYCRR, Part 1200, Rule 1.14 states, When a client s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.

75 2 II. RETAINED COUNSEL Initial Meeting with the AIP and Subsequent meetings. Introduce yourself to the AIP and explain why you are meeting with the AIP. Inform the AIP who asked you to meet with the AIP and why. Explain to the AIP the petition, who is involved, the petitioner, as well as other family members and/or friends, and how these people are involved in the Article 81 guardianship proceeding. Meet with the AIP frequently in your office, as well as at the AIP s residence. Meet with the AIP alone, and at other times with those whom the AIP chooses. Explain to the AIP that it sometimes is important to meet with the AIP alone and not in the presence of others to protect lawyer-client privilege, as well as to ascertain what the AIP recalls without the assistance of others. Counsel also should meet alone with the AIP separately to elicit information that the AIP may not be comfortable relating to counsel if others are present, including those individuals whom the AIP fears or those individuals who may be exerting undue influence upon the AIP. On each occasion that counsel meets with the AIP, review with the AIP what was discussed when counsel last met with the AIP or spoke with the AIP during a telephone discussion. Make the best possible assessment of the AIP s abilities or lack thereof regarding short-term memory and long-term memory. It is important to meet with the AIP frequently to avoid the AIP forgetting counsel s name, who counsel is, why counsel is meeting with the AIP, and the fact that the AIP has retained counsel. Objectants, including the court evaluator, may suspect that socalled retained counsel was not retained by the AIP because the AIP allegedly does not have the capacity to enter into a contract.

76 3 If the court evaluator or others advise the Court of the possibility that the AIP does not have capacity to retain counsel, the Court generally will conduct a hearing solely for the purpose of determining whether the AIP had or has capacity to retain counsel. Mental Hyg. Law 81.10(a) provides that the AIP has the right to choose and engage legal counsel. The Court is to determine whether retained counsel has been chosen freely and independently by the alleged incapacitated person. Counsel risks that the Court will determine that counsel was not freely and independently chosen by the AIP. In such an event, counsel cannot be paid from the funds of the AIP if a guardian is appointed. Counsel should determine, if possible, prior to be being retained whether the AIP can direct counsel in counsel s representation of the AIP. If retained counsel concludes that the AIP cannot direct counsel, then counsel cannot represent the AIP, and thereby advocate for the wishes of the AIP. However, counsel can represent family members, such as spouse and children, and by representing those individuals proceed to work for the best interest of the AIP. 1 If counsel is retained and paid by family members to represent the AIP, the Court must make a determination that the AIP freely and independently has chosen counsel to represent the AIP. A determination that the AIP acted freely becomes more difficult for the Court to make when the facts likely will show that prior to the commencement of the proceeding, the AIP did not know counsel, counsel is a friend of a member of the AIP s family, or counsel represents a member of the AIP s family. It will become increasingly difficult, but not impossible, for the Court to make a 1 Although difficult, counsel who represents a family member of an AIP may be able to fashion least restrictive alternatives to guardianship. If counsel represents family members, counsel should advise the Court whom counsel represents. It is my experience that in most cases, the Court will allow counsel for family members to participate in the hearing and to work toward a settlement. The Court will understand without anyone making a statement that counsel has determined that the AIP cannot direct counsel but that counsel will work for the best interests of the AIP. However, if counsel s actions demonstrate to the Court that counsel is in fact representing the interests of the family member rather than the AIP, the Court will not be so inviting to counsel.

77 determination that the AIP acted freely if family members or others are paying the legal fees incurred in connection with counsel representing the AIP. 4 If counsel is retained by family members to represent the AIP, there likely will be a conflict between what the family members want counsel to do and what the AIP wants counsel to do. Counsel s loyalty and duties are owed to the AIP and not to those paying the bills. If family members are paying the legal fees, the retainer agreement should expressly state that notwithstanding that the family members are paying the legal fees, counsel is bound to represent the AIP in accordance with the wishes of, and the instructions given by, the AIP and as directed by the AIP, even if such representation is contrary to the wishes of the payer of the bills. The family members may want counsel to represent the AIP in a fashion that is in the best interest of the AIP, while the AIP may want counsel to represent the AIP in a manner that is not in the best interest of the AIP but is what the AIP wishes. For example, counsel may be able to resolve the Article 81 proceeding with a settlement by having his client agree to relocate to an assisted-living facility and give a power of attorney to #1 Son. The members of the AIP s family agree that this is the perfect solution; it avoids the appointment of a guardian, #1 Son, who is an accountant, will handle Mom s financial affairs, the legal fees will be reduced because there will not be a long and drawn-out hearing, and Mom will not have to listen to the testimony of friends and family members when they relate to the Court how she is forgetful and wanders if she is not accompanied by someone. Mom says to all of them, Go to hell. I am not leaving my residence of 50 years. I am not forgetful; I am quite capable of handling my own affairs, and I don t need my children handling my money, even if #1 Son is an accountant. I can handle my own money better than he can handle my money. The AIP directs counsel not to settle, to represent her at the hearing, and argue to the Court that she does not have any functional limitations that impair her ability to provide for her personal or property management and that she does not need a guardian of any sort. Clearly, counsel must advocate

78 what his client, the AIP, asks. No doubt, no matter how many times counsel explains to the family members counsel s ethical obligations, the family members will not understand why counsel will advocate for a position that counsel knows is not in the best interests of his client, the AIP. 5 When the bills are paid by one other than the client, ethical issues are likely to arise. III. COURT-APPOINTED COUNSEL Court-appointed, as retained counsel, must abide by the wishes and directions of the client. If court-appointed counsel believes that the capacity of the AIP is so diminished that the AIP cannot reason or direct counsel, counsel should consider whether it may be more appropriate for the Court to appoint a guardian ad litem. However, if counsel is appointed because Article 81 mandates the appointment of counsel, counsel may be compelled to only represent the AIP in connection with protecting the due process rights and other rights of the AIP, rather than advocating a frivolous position. 22 NYCRR, Part 1200, Rule IV. PREPARATORY WORK PRIOR TO THE HEARING Communicating with the Court Evaluator Contact the Court Evaluator as soon as possible after counsel believes that counsel understands the facts and the AIP s position. Give the Court Evaluator the facts that will help your client. Counsel also should give to the Court Evaluator facts that are not so helpful that counsel knows that the Court Evaluator will learn from other sources. Elicit from the Court Evaluator what the Court Evaluator has learned from others. Ask the Court Evaluator when the Court Evaluator would like to meet with the AIP. Prepare the AIP for the meeting with, and interview by, the Court Evaluator.

79 6 Be present at the meeting between the AIP and the Court Evaluator. If your client, the AIP, is forgetful, find a way to handle the forgetfulness without interfering with the Court Evaluator s interview of the AIP. You may want to tell the AIP not to worry if she cannot remember everything and advise the AIP to tell the Court Evaluator when she cannot remember and that whatever it is that she has forgotten, she is sure that she will remember before the Court Evaluator leaves. Do not interfere with the Court Evaluator interviewing the AIP. Be prepared for the Court Evaluator to ask the AIP tough questions, which sometimes may seem to be insensitive. Counsel s interference with the Court Evaluator could result in doing more damage to the AIP than allowing the AIP to answer the Court Evaluator s questions, even if incorrectly. Begin early on discussing with the Court Evaluator why your client does not need a guardian and/or the least restrictive alternatives to a guardianship. As you learn facts that will assist your client, give those facts to the Court Evaluator. If you have documents that demonstrate that an individual who seeks to be a guardian is unfit, furnish those documents to the Court Evaluator. For example, Son #2 was the agent under a power of attorney and you have bank statements showing that he used Mom s money to pay his bookie in New Jersey. You also have receipts showing that Son #2 used Mom s money to purchase expensive jewelry for Son #2's mistress. Deliver copies of these documents to the Court Evaluator. Provide the Court Evaluator, if appropriate, with the AIP s family history, information regarding family discord, and information regarding the assets of the AIP. Investigate the Facts. After having met with the AIP, at least once, meet with or speak with friends or family members whom counsel believes will give the facts. Do not rely solely upon what the AIP tells you. Talk with family

80 members, home aides, friends, and religious leaders. It is from these sources that counsel will learn many of the weaknesses of the AIP s position. 7 When counsel believes that counsel has the facts, counsel should engage the AIP in a straight-forward discussion of the facts that likely will be presented at a hearing. Listen to the AIP s responses and if the responses are not complete or rational, let the AIP know that the AIP s responses will not serve her well at a hearing. Do not sugarcoat what the AIP likely will encounter during the Article 81 proceeding, including, but not limited to, family members lying. If counsel believes that the petitioner likely will meet petitioner s burden by proving by clear and convincing evidence that (1) the AIP has functional limitations (2) those functional limitations impair the AIP s ability to provide for her personal needs and property management, (3) the AIP lacks understanding or appreciation of the nature and consequences of the AIP s functional limitations, and (4) the appointment of a guardian is necessary to prevent harm to the AIP, counsel should advise the AIP of counsel s beliefs and the basis of counsel s beliefs. After having had a straightforward discussion with the AIP, counsel should make every attempt to persuade the AIP to accept a settlement that would provide the least restrictive alternatives to a guardianship. V. THE HEARING Work toward having the hearing as soon as possible. If your client is an elderly person, the longer the hearing is delayed, the more likely the AIP will lose his/her ability to remember. It is likely that with delay, the AIP will become progressively worse. Up to the date of the hearing, counsel would have had frequent visits with the AIP, to be assured that the AIP remembers who counsel is, remembers what the Court proceeding concerns, and how the AIP is to conduct himself/herself in the Court. If counsel has told the AIP what to expect during the hearing, that oftentimes reduces some of the AIP s nervousness. In most instances, the AIP should not testify. However, if the AIP does

81 8 not suffer from cognitive limitations, can explain her thoughts well, understands her limitations, can explain how she has addressed her limitations or intends to address her limitations, does not get flustered, then the AIP may be a decent witness. If the AIP rambles, do not permit the AIP to testify. If the AIP is to testify, you must prepare the AIP for cross-examination. In addition to cross-examination, the presiding Justice is likely to ask the AIP a number of questions. If counsel discerns that the AIP is intimidated by family members or home care attendants, or friends who have cared for the AIP, ask the Court to permit the AIP to testify, on the record, in camera. Object to any medical facts or evidence that are protected by physicianpatient privilege or was not obtained in accordance with Mental Hyg. Law 81.09(d) Jury trials are rare in Article 81 proceedings. The AIP has a right to a jury trial. If the AIP intends to exercise the AIP s right to a jury trial the demand for a jury trial must be made on or before the return date designated in the order to show cause. Mental Hyg. Law 81.11(f). Failure to timely demand a jury trial will be deemed a waiver of the right to trial by jury. A jury trial may be difficult for the AIP. Counsel must assess the AIP s stamina, emotional and psychological we being, ability to hear unpleasant facts, ability to sit still and attentive for long periods of time, ability to maintain the appropriate demeanor throughout the trial as the jury observes every movement that the AIP makes. In most cases, it generally is best to avoid a full hearing. Counsel should use all of counsel s resources to devise creative solutions that would be the least restrictive alternatives to guardianship. S:\abk\Documents\GUARDIAN\Publications\Counsel of the AIP - November 30, 2010.wpd

82 1 Alfreida B. Kenny, Esq. th 11 Park Place, 10 Fl. New York, New York (212) THE COURT EVALUATOR Alfreida B. Kenny, Esq. October 29, 2005 Who May be Appointed as Court Evaluator? A Court Evaluator is appointed at the time of the issuance of the order to show cause seeking the appointment of a guardian of the person and/or guardian of the property of a person alleged to be incapacitated (the "AIP"). Mental Hyg (a). The appointment of a Court Evaluator is mandatory and can be dispensed with only if the court appoints counsel for the AIP. Mental Hyg (g). The court may appoint as Court Evaluator a person whose name appears on the list maintained by the Office of Court Administration. Mental Hyg (b) and 81.40(b). Although Mental Hyg (b) states that the person appointed to serve as Court Evaluator must complete a training program approved by the Office of Court Administration, Mental Hyg (c) allows the court, in the exercise of its discretion, to waive that requirement, as well as others. A Court Evaluator may be a social worker, a psychologist, an accountant, a nurse, a physician, an attorney, or others whom the court deems to have sufficient knowledge and skills to perform the tasks. Mental Hyg (b)(1).

83 Some judges have expressed the view that the appointment of social workers and health care professionals in many cases is preferable to the appointment of an attorney. Because Article 81 directs the court to focus upon the functional abilities and limitations of the AIP when determining whether the appointment of a guardian is necessary to provide 1 for the personal needs and to manage the property and financial affairs of the AIP, some judges believe that social workers and health care professionals are better able to assess and advise the court of the functional limitations of the AIP. 2 In order for the court to properly fulfill its responsibilities under Article 81, the court must be given specifics regarding the functional abilities and limitations of the AIP. It is one of the major tasks of the Court Evaluator to provide the court with such specifics. In addition, social workers and health care professionals are more likely than attorneys to be 2 familiar with community resources available to the AIP. Economic considerations also may suggest that it might be best to appoint a social worker rather than an attorney. If the AIP has limited financial resources, it may be more economical to appoint a social worker whose fee for services rendered as Court Evaluator is likely to be less than that of an attorney. The court may appoint the Mental Hygiene Legal Service that is located in the judicial department where the AIP resides to serve as Court Evaluator. If the Mental

84 3 Hygiene Legal Service is representing the AIP as counsel, or if it seems to the Mental Hygiene Legal Service that counsel should be appointed to represent the AIP, the Mental Hygiene Legal Service shall report these factors to the court. The court then will relieve the Mental Hygiene Legal Service of its appointment as Court Evaluator. Mental Hyg (b)(2). The Role and Duties of the Court Evaluator. The role of the Court Evaluator is to act as an independent investigator and to report to the court his/her findings and the information gathered. The Court Evaluator's duties include investigating and researching available resources, including, without limitation, community resources, and reporting to the court the reliability and sufficiency of such resources that the Court Evaluator believes would assist the AIP. The Court Evaluator is not to act as counsel for the AIP -- advocating for the AIP. The Court Evaluator, however, should ascertain the desires of the AIP and report these desires to the court whether or not the Court Evaluator believes the AIP's desires are based upon sound thinking. In connection with ascertaining the desires of the AIP, every effort should be made to learn from the AIP whether the AIP has considered that he/she may have certain limitations, and, if so, has the AIP considered how these limitations can be addressed. See, Matter of Presbyterian Hospital of the City of New York (Helen Early), N.Y. L.J., July 2, 1993, at 22