PRE-PETITION CONSIDERATIONS AND PREPARATION OF PETITION IN AN MHL ARTICLE 81 PROCEEDING. By: Patricia A. Bave, Esq. Sara L. Keating, Esq.

Transcription

1 PRE-PETITION CONSIDERATIONS AND PREPARATION OF PETITION IN AN MHL ARTICLE 81 PROCEEDING By: Patricia A. Bave, Esq. Sara L. Keating, Esq. 1

2 Patricia A. Bave, Esq. Sara L. Keating, Esq. KOMMER BAVE & OLLMAN LLP HOFFMAN & KEATING 145 Huguenot St., Ste Maple Avenue New Rochelle, NY New City, NY Phone (914) Phone (845) Fax (914) Fax (845)

3 Pre-Petition Considerations: Initial Interview with Client/Petitioner Importance of determining valid grounds for guardianship - Reasons for guardianship - Thorough understanding of background of the situation - Identify potential and existing conflicts - Any available resources (Power of Attorney, Health Care Proxy, Trust) Unreliable or insufficient? Can a Power of Attorney or Health Care Proxy be signed? - Dispositional Alternatives Protective arrangement, typically for single transaction Special guardian 3

4 Pre-Petition Considerations: Initial Interview with Client/Petitioner Importance of determining valid grounds for guardianship - Noncompliance (mental illness) No involuntary commitment or administration of psychotropic drugs - Likelihood of objection by AIP To guardianship To guardian To placement How articulate is the AIP? - Likelihood of contest by respondent(s) - Eccentricity versus incapacity poor life choices instead of clear and convincing evidence of incapacity Nuanced and hard to understand distinction 4

5 Pre-Petition Considerations: Qualification of Proposed Guardian - Bondable - Felony conviction - Conflicts likely to result in an independent guardian (Part 36) being appointed? Sometimes this threat helps with settlement. - Is there a plan? - Willingness to meet duties and responsibilities - As counsel for a guardian it is important you advise and counsel your client on all steps post-judgment, from commission to marshalling assets to Initial Report to Accountings, and everything in between. 5

6 Pre-Petition Considerations: Attorneys Fees in a Guardianship Fee shifting provisions of Article 81 are designed to discourage frivolous guardianships or those brought in bad faith. MHL 81.10(f). In re Lyles, 250 A.D.2d 488 (App. Div. 1998) - Court Appointed Counsel The Court shall determine reasonable compensation for an attorney appointed pursuant to MHL 81.10(f). If the petition is dismissed, the Court has discretion to direct petitioner to pay the attorney for the AIP. In re Petty, 256 A.D.2d 281 (App. Div. 1998) Practice Pointer: If AIP is indigent, there is NO mechanism in the statute for the attorney to get paid which is a real problem. - AIP s private retained counsel Some cases hold that a Court has no authority to direct Petitioner to pay the AIP s privately retained counsel if petition is dismissed. Cf. In re Petty, 256 A.D.2d 281 (App. Div. 1998) 6

7 Pre-Petition Considerations: Attorneys Fees in a Guardianship - Court Evaluator MHL 81.09(f) If petition is granted, Court can award reasonable counsel fees to Court Evaluator If petition is dismissed or withdrawn, Court may set a reasonable fee to be paid by petitioner or the AIP or both in such proportions as the Court sees fit. - Petitioner s attorney MHL 81.17(f) When the Petition is granted, or where Court deems it appropriate, the Court may award reasonable compensation from AIP s funds. See also In re Marjorie T., 84 A.D.3d 1255, 1255, 923 N.Y.S.2d 870 (2011) (Even though petition was withdrawn, there was no evidence it was brought in bad faith and AIP s counsel fees were to be paid by the AIP). 7

8 Legal Standard: MHL Necessity Functional limitations in Activities of Daily Living ( ADLs ) for personal care and/or property management 2. Two prongs: A. Consent OR B. Finding of Incapacity 1. Lack of insight into and appreciation of functional limitations 2. Harm will come to AIP 8

9 Legal Standard: MHL Necessity In determining necessity the Court will consider: 1. The recommendations of the Court Evaluator, if one has been appointed 2. The sufficiency and reliability of available resources Available resources as to personal care can include Health Care Proxy, Living Will, Geriatric Care Manager ( GCM ), Family Health Care Decisions Act, visiting nurses, homemakers, home health aides, adult day care, multi-purpose senior center, and assisted living facility. Available resources as to property management can include durable power of attorney, trust, money manager, joint accounts, and representative payees. Least restrictive alternative means that the powers granted by the court to the guardian with respect to the IP represent only those powers which are necessary to provide for the person s personal needs &/or property management & which are consistent with affording that person the greatest amount of independence & self-determination in light of that person s understanding & appreciation of the nature and consequences of his/her functional limitations. 9

10 Legal Standard: MHL Necessity (cont.) Sufficiency and Reliability of Available Resources - Power of Attorney Durable Powers (i.e. gifting) Are there allegations of financial abuse or overreaching? Is the agent willing to act? - Health Care Proxy Powers Allegations of nonfeasance or malfeasance Family Health Care Decisions Act MOLST DNR Living Wills - Trusts (SNT, Revocable, Irrevocable) Review the document to determine if there are any unmet property needs Can a durable Power of Attorney and Health Care Proxy currently be signed by the AIP? - Capacity - Dueling Powers of Attorneys - If you assess the AIP yourself, can you bring the guardianship? 10

11 Legal Standard: MHL Consent vs. Finding of Incapacity Consent Guardianship MHL The concept of a consent guardianship both begins and ends in Mental Hygiene Law 81.15(a) wherein a distinction is made between a person agreeing to the appointment of a guardian and a person determined by the Court to be incapacitated Matter of Buffalino (James D.), 960 N.Y.S.2d 627 (Sup. Ct., Suffolk, 2013). - If the AIP consents to the guardianship the person is identified as a PING (Person in Need of a Guardian) 11

12 Legal Standard: MHL Consent vs. Finding of Incapacity Consent Guardianship MHL No definition of capacity to consent in statute - Generally the standard Courts have come up with to determine whether the individual has capacity to consent includes the following: Whether the individual can meaningfully interact and converse with the court; The individual s understanding of the nature of the proceedings; The individual s comprehension of the personal and property management powers that are being relinquished 12

13 Legal Standard: MHL Consent vs. Finding of Incapacity Consent Guardianship MHL The inquiry by a Court to determine whether an individual has capacity to consent is not the equivalent of the in-depth examination that occurs in a full hearing to determine incapacity wherein the person's ability to understand and appreciate the nature and consequences of their functional limitations is explored and determined. Buffalino at 636. See also Matter of L.J.L., 971 N.Y.S.2d 72 (Sup. Ct. Bronx, 2013). 13

14 Legal Standard: MHL Consent vs. Finding of Incapacity Consent Guardianship MHL The AIP should be present in the courtroom to consent. i.e. Matter of Kover, 19 NYS 3d 228 at 240, 134 A.D. 3d 64 (1st Dept. 2015) - Who gets to determine the powers in a consent guardianship? (see Matter of Cooper (Joseph G.), 46 Misc. 3d 812, 996 N.Y.S.2d 508 (Sup. Ct. 2014), wherein the Court held it was not constrained to grant only those powers which the AIP had specifically consent to. If consent was conditioned upon limiting powers then the court would not have accepted the consent.) Practice Pointer: If an attorney is going to allow his/her client to consent to a guardianship that attorney should put on the record that the consent is specifically conditioned upon the particular powers being granted to the guardian. 14

15 Legal Standard: MHL Consent vs. Finding of Incapacity Consent Guardianship - In Matter of Buffalino (James D.), 39 Misc. 3d 634, 960 N.Y.S.2d 627 (Sup. Ct. 2013), the PING had consented to the initial appointment and the appointment of a successor guardian. However, when the successor guardian sought to expand powers, the PING objected. - A consent guardianship is created on the basis of the individual's agreement thereto and it does not morph into a non-consent guardianship with its inherent finding of incapacity because an emergency occurs and an expansion of powers becomes necessary. Granting an application to expand powers pursuant to Mental Hygiene Law without the individual's consent would effectively be a declaration of incapacity without a hearing to determine said incapacity. Buffalino at

16 Legal Standard: MHL Consent vs. Finding of Incapacity Finding of Incapacity MHL 81.02(a)(2) - The finding of incapacity must be based upon clear and convincing evidence; that the person is likely to suffer harm because of his/ her inability to provide for his/her needs; and cannot adequately understand and appreciate the nature and consequences of this inability. Mental Hygiene Law (b)(1), (2) - If a person is found to be incapacitated, he/she is identified as an Incapacitated Person (IP) - The Burden of Proof to demonstrate incapacity is on the Petitioner, and must be proven by clear and convincing evidence. In re Hammons, 625 N.Y.S. 2d 408 (Queens 1995). 16

17 Legal Standard: MHL Consent vs. Finding of Incapacity - Additional Considerations Nature and extent of person s financial assets; Physical illness and prognosis; Mental disability; Alcoholism, substance dependence, and prognosis; Medications that might affect behavior, cognition, and judgment Practice Pointer: Just because an AIP may suffer from mental illness, is eccentric, has poor hygiene, and/or lives in a less than ideal situation does not mean that the AIP is incapacitated. In re Tait, 1994 N.Y.Misc. LEXIS 686, 211 N.Y.L.J. 103 (New York, 1994); 1-10 Bender s New York Elder Law (2016). 17

18 Legal Standard: MHL Consent vs. Finding of Incapacity Guardianship cases where the standard was not met: - In re Lowe,688 N.Y.S.2d 389 (Queens, 1999), wherein the court dismissed the Petition since there was no evidence the AIP would suffer harm because he had no successor health care proxy - In Matter of Samuel S. (Helene S.), 96 A.D.3d 954 (2d Dept. 2012, the appellate division affirmed dismissal of a guardianship proceeding because valid advanced directives were in place for the AIP. See also Matter of G.S., 841 N.Y.S.2d 428 (Bronx, 2007) ( This Court finds that the person has effectuated a plan for the management of her affairs thus obviating the need for the appointment of a guardian of her property. To the extent that the nursing home is seeking to be paid for the care it has rendered to the person, the petitioner must seek a different avenue of redress for that relief as a guardianship application is inappropriate. 18

19 Legal Standard: MHL Consent vs. Finding of Incapacity Guardianship cases where the standard was not met (cont): - Matter of Bonnie H. (Bonnie O.), 48 NYS 3d 264 (Dutchess, 2016) The Court Evaluator recommended dismissal and the Court also found there were sufficient and reliable available resources to meet the needs of the AIP, so the Petition was dismissed. 19

20 Legal Standard: MHL Consent vs. Finding of Incapacity Guardianship cases where the standard was met: - In re Karen H.M., 991 N.Y.S.2d 868 (Bronx, 2014) - The Court found that, although the IP was competent, at the time she executed a power of attorney and health care proxy, they needed to be set aside based upon the mismanagement of the personal affairs and financial affairs of the IP. This same mismanagement also led the Court to appoint an independent guardian rather than either of the IP s daughters. - Matter of Camoia (Giamo), 22 NYS 3d 137(Kings, 2015) - While every adult is presumed competent to appoint a health care agent, that presumption can be rebutted by medical evidence of mental illness or mental defect. Here the AIP had executed a health care proxy but there were medical records to show that she was diagnosed with dementia at least three years prior to the time the HCP was signed. This rebutted the presumption of competency. The Court vacated the HCP and appointed a personal and property guardian. The Court noted that there was no indication from the person s medical providers or from the medical records that she had any prognosis for recovery. 20

21 Standard of Proof Practice Pointer: Is the Court Evaluator s Report prima facie evidence? Probably not, see Matter of Eugenia M., 867 N.Y.S.2d 373 (Kings, 2008) (The [p]etitioner still would have had the burden of proving his case and cannot rely upon the Court evaluator to establish the Petitioner's case for him. [emphasis added]). 21

22 Jurisdiction: NYC: Supreme Court - Outside NYC: Supreme and County and Surrogate s Court in limited circumstances limited to property management Such courts have jurisdiction over: o o Residents of NYS Non-residents of NYS present in the state - see In re Verna HH., 302 A.D.2d 714, (3d dept. 2003), The plain and unambiguous language of the statute makes clear that nothing beyond mere physical presence in the state is required in order to complete jurisdiction. In re Verna HH., supra at 715. o Non-residents with foreign guardians (MHL 81.18) 22

23 Venue: Venue may be: - County where AIP resides or is physically present, or - County where AIP s property is located if not present or residence cannot be ascertained - If AIP resides in a facility, the county where the facility is located is deemed to be the county of residence 23

24 Petitioner, Petition, Notice and Service Who can bring the proceeding? (MHL 81.06) 1. An AIP; 2. Presumptive distributee as defined in SCPA 2013 (42); 3. Executor or administrator of an estate where AIP is or may be beneficiary; 4. Trustee of trust when AIP is or may be grantor or beneficiary of the trust; 5. Person with whom the AIP resides; 6. A person otherwise concerned with the welfare of the AIP (may include a corporation, public agency (i.e. Department of Social Services); or 7. Chief executive officer, or designee, of a facility in which AIP is a patient or resident. With respect to #7, there have been efforts by the NYS legislature to amend MHL section to prohibit nursing homes, hospitals and other care facilities from being able to bring guardianship proceedings which efforts have been unsuccessful to date. 24

25 Petitioner, Petition, Notice and Service Notice of Proceeding (MHL 81.07) Commencement upon the filing of an Order to Show Cause and Petition - Hearing date within 28 days of signing of Order to Show Cause (MHL 81.07(b)(1)) which is generally only deviated from for good cause shown Practice Pointer: Different counties handle adjournments differently. New York City tends to be more lenient with adjournments. Westchester County very rarely gives adjournments. 25

26 Petitioner, Petition, Notice and Service Service of the Order to Show Cause and Petition (MHL 81.07) The OTSC, Petition and Supporting Papers must be served as follows: - On the AIP personally, no less than 14 days prior to hearing - On the Court Evaluator and counsel for AIP by facsimile, personal delivery, or overnight mail within three (3) days following the appointments or the appearance of an attorney retained by the AIP (MHL 81.09(e)(2)(ii) The Court can direct service other than personal service if petitioner satisfactorily demonstrates that the AIP refused to accept service. See In re Hammons, 625 N.Y.S.2d 408 (Queens, 1995) (Statute requires proof the AIP knew service was being attempted and was affirmatively evading service before an alternate method of service can be authorized). See Matter of Nixon, N.Y.L.J., June 4, 1996 p. 25, Col. 1 (Court combined Article 81 with sua sponte habeas corpus proceeding so party secreting AIP is directed to produce AIP for an inquiry as to whether the AIP was unlawfully held and personal service could not be effectuated). 26

27 Petitioner, Petition, Notice and Service Form of Notice and Proceeding MHL 81.07(f) A Notice of Proceedings includes the: - Name and address of the AIP; - Name and address of Petitioner; - Names of all persons to be given notice; - Time and place when Order to Show Cause will be heard; - Object of the proceeding and the relief sought; and - Name, address, and telephone number of the Petitioner s attorney 27

28 Petitioner, Petition, Notice and Service Service Who is Entitled to Notice? MHL 81.07(f) Notice of Proceeding, together with a copy of the OTSC shall be served at least 14 days before the hearing to: - Spouse of AIP - Parent of AIP - Adult children of AIP - Adult siblings of AIP - Person with whom AIP resides If none of the foregoing exist, then Notice and OTSC must be given to at least one, and not more than three, of the living relatives of the AIP in nearest degree of kinship who are known or can reasonably be ascertained. 28

29 Petitioner, Petition, Notice and Service Service Who is Entitled to Notice? MHL 81.07(f) (cont) In addition, the following must be served if known: - AIP s power of attorney and/or health care proxy; - Anyone or any entity that demonstrated genuine interest in promoting the best interest of the AIP or regularly communicates or visits; - Local Department of Social Security; - CEO of facility where AIP resides; - Mental Hygiene Legal Services if AIP resides in mental hygiene facility; and - Such other person as the Court may direct based upon recommendation of Court evaluator Practice Pointer: Many counties routinely require notice to the County Attorney and the Department of Social Services/HRA regardless of whether the AIP is known to have been receiving benefits. Practice Pointer: Contact the Court to obtain its forms. For example, Ninth Judicial District (which encompasses Westchester, Rockland, Dutchess, Orange, and Putnam) has many forms that can be downloaded directly from the Court s website. 29

30 Petitioner, Petition, Notice and Service Service Who is Entitled to Notice? MHL 81.07(f) (cont) For good cause shown, the Court can direct that the notice be mailed within a time frame shorter than fourteen (14) days before the hearing date. - In Matter of Theodore T., 28 A.D.3d 488 (App. Div. 2006) the AIP was served with the Order to Show Cause and Petition by overnight delivery not by personal service as required by the Order to Show Cause. The method of service provided for in an Order to Show Cause is jurisdictional in nature and must be strictly complied with, citing Hennessey v. DiCarlo, 21 A.D.3d 505 (App. Div. 2005). Therefore, the Theodore Court granted the AIP s motion and dismissed the petition for lack of jurisdiction. 30

31 Petitioner, Petition, Notice and Service Form of the Order to Show Cause: Section 81.07(c) The following requirements as to the form of the Order to Show Cause must be strictly followed. The requirements are as follows: - Written in large type, in plain language and in other than English if necessary to inform AIP of rights and shall include the following: Date, time and place of hearing; Clear and easily readable statement of rights of AIP as set forth in Section 81.11; Name, address and telephone number of Court evaluator appointed pursuant to 81.09; Name, address and telephone number of attorney for AIP if appointed pursuant to 81.10; List of powers guardian would have if petition is granted; and It must contain the following Legend in twelve point or larger bold face double spaced type. 31

32 Petitioner, Petition, Notice and Service Form of the Order to Show Cause: Section 81.07(c) ORDER TO SHOW CAUSE IMPORTANT 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 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. 32

33 Form of the Order to Show Cause: Section 81.07(c) (cont) You have 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 and address, and telephone number of the clerk of the Court are: The Court has appointed a Court evaluator to explain this proceeding to you and to investigate the 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 are: 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. 33

34 Petitioner, Petition, Notice and Service The Petition Highlights of What to Include Highlights - a verification under oath and contain name, age, address and telephone number of AIP - detailed description of AIP s functional level, including that person s ability to manage the activities of daily living, behavior and understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living, both as to personal care and property management - specific factual allegations as to the personal actions or other actual occurrences involving the AIP which are claimed to demonstrate that the person is likely to suffer harm because he/she cannot adequately understand and appreciate the nature and consequences of his/her inability to provide for personal and/or property needs - the powers requested and how such powers relate to the functional level and needs of the AIP - any application for needed temporary or emergency relief (see MHL 81.23) - available resources that have been considered by the petitioner and why they are not sufficient, reliable, etc. - no medical affidavit is required to be submitted with the Petition (MHL 81.07(b)(3)) 34

35 Petitioner, Petition, Notice and Service The Petition Petition can be dismissed if found to be deficient. - Petitions cannot recite mere conclusory allegations. see In re K.B. (D.B.), 50 Misc. 3d 1219(A), 31 N.Y.S.3d 921 (Dutchess,. 2016). In K.B. the petition was dismissed because the petitioner failed to provide detailed information about AIP s functional level. The only allegations were the petitioner s opinion that the AIP had suffered from mental illness earlier in her life and did not have the physical or mental ability to manage her role in the divorce action and property settlement proceedings. There were no specific factual allegations as to personal or financial transactions of AIP to show that she was likely to suffer harm because of her inability to adequately understand and appreciate the nature of her actions. Id. 35

36 Petitioner, Petition, Notice and Service The Petition Who is Entitled to the Petition? - Pursuant to MHL section (g)(2) the only persons specifically authorized to receive a complete set of the pleadings commencing the lawsuit are the AIP; the Court Evaluator; and the attorney for the AIP. - But see Matter of Harold G. 820 N.Y.S. 2d 426 (Nassau, 2006) the Court granted a motion allowing a respondent outside this class of people to receive a full copy of the pleadings. However, in Harold G. this respondent, the former wife of the AIP, had previously brought an Article 81 proceeding seeking similar relief for the same person and therefore already had access to the information in the petition. Based upon these unique circumstances the Court allowed full access to the pleadings to a respondent other than the AIP, the Court evaluator or counsel for the AIP. Practice Pointer: If you represent a respondent and have filed a Notice of Appearance, the Court may allow you to review the Petition at the Courthouse. 36

37 Petitioner, Petition, Notice and Service The Petition Is temporary or emergency relief necessary? - Provisional Remedies: dire circumstances requiring relief before hearing Temporary Restraining Orders allegations of financial abuse by agent under power of attorney Temporary Guardian (MHL 81.23(a)) are there allegations the AIP s person or property are in danger? - If injunctive relief is sought, Petitioner must give notice of such application to afford the AIP an opportunity to be heard or the Petition must seek to dispense with such notice. See Uniform Civil Rule for Supreme Court 202.7(f). - See Matter of Jaar-Marzouka (C.W.), 41 N.Y.S.3d 449 (Dutchess, 2016), authorizing protective order to be issued by guardianship court. Caveat: the order will not be registered in the Order of Protection Registry. 37

38 Resources ollectedcases.pdf Mental Hygiene Legal Service Second Judicial Department has collected cases through 9/5/17 (updated) NYCourts, Guardian and Fiduciary Guardian Assistance Network = has some forms and resources online they are different than the counties within which I practice so I cannot comment on how widely accepted or helpful they are Dutchess, Orange, Putnam, Rockland & Westchester Counties anship.shtml 38