In a recent decision, a judge dismissed petitioner-daughter’s petition for the appointment of a guardian of the person and property to her mother under Article 81 of the New York Mental Hygiene Law (MHL). Matter of Bonnie H., 2016 N.Y. Misc. LEXIS 4462, NY Slip Op 51723(U) (Dec. 6, 2016, Dutchess County, Hon. James D. Pagones, A.J.S.C.).
The petition in this case alleged that the mother, the Alleged Incapacitated Person (“AIP”), suffers from dementia and depends upon her former aide to perform her personal and financial activities of daily. The AIP filed in opposition, stating that she is independent in performing her activities of daily living and estranged from petitioner-daughter. The court evaluator recommended dismissal of the petition based upon, inter alia, the AIP’s network of friends, professionals and caregivers, as well as the AIP’s prior execution of advance directives, including a power of attorney and health care proxy.
The court’s decision reviewed the legal standards for the appointment of a guardian, and held that petitioner failed to present sufficient evidence that she met the requirements of Article 81. MHL 81.12 requires that a determination of incapacity be based upon clear and convincing evidence and imposes the burden of proof on petitioner. In addition, MHL 81.15 requires a finding that a guardian is necessary and that an AIP either agrees to the appointment OR lacks understanding and appreciation of the nature of her functional limitations, and of the likelihood that the AIP will suffer harm because of that lack of understanding. MHL further requires that the “least restrictive form of intervention” be implemented.
In Matter of Bonnie H., the court’s dismissal of the petition relied upon the fact that the AIP had advance directives in place that adequately provided for the management of her person and property, and that constituted the “least restrictive intervention”. The court also relied on the fact that petitioner failed to submit any medical evidence in support of her claim that the AIP suffered from dementia. The MHL is clear that medical evidence is not required to establish incapacity, as the analysis of incapacity is a functional, rather than medical analysis. In practice, however, the lack of medical evidence can be a hurdle to a petitioner establishing an AIP’s incapacity and medical evidence is often helpful to the court, particularly in contested proceedings where there is evidence rebutting the claim of incapacity.
This case underscores that practitioners who are filing guardianship petitions must not only be familiar with the legal standards for guardianship, but also do reasonable due diligence to assess whether there is sufficient information to establish that petitioner is likely to meet his/her burden of proof. Such due diligence could include requesting supporting documentary evidence from the prospective petitioner, and interviewing potential corroborating sources, such as neighbors, friends, family or household members. Practitioners must exercise caution, however, in contacting medical providers, social workers or attorneys, as their relationship with the AIP is protected by legal principles of privilege. This case also makes clear that meeting the standards for establishing incapacity can be difficult in some cases, and that the determination of incapacity is a fairly fact-intensive inquiry. Practitioners filing Article 81 petitions must not only be familiar with the legal requirements of incapacity, but also have a nuanced practical understanding of the application of the standards to the specific facts of the matter before them.
Finally, this case is a reminder to practitioners of the need to discuss and advise prospective petitioners of the risk that the court may hold them personally liable for professional fees incurred in the guardianship, particularly where there is any indication that petitioner may not be able to meet his/her burden. Pursuant to MHL 81.09(f) and 81.10(f), where a court denies or dismisses a petition, the court has discretion to allocate to petitioner payment of all or part of the fees of, respectively, the court evaluator and the AIP’s court-appointed attorney. In Matter of Bonnie H., the court also held that petitioner should be personally liable for the costs of her own attorney, the AIP’s former court-appointed attorney, and the court evaluator. The court determined, however, that the MHL did not provide authority for an Article 81 petitioner to reimburse an attorney that the AIP had privately retained. Practitioners should review their retainers for Article 81 guardianship petitions to ensure that they address the various scenarios ion which the court may deny payment of petitioner’s counsel fees from a ward’s estate.
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