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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Certified Guardian, Court evaluator and Counsel

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, 2010.

P r o g r A m C h A I r :

Clifford A. Meirowitz, Law Offices of Clifford A. Meirowitz PLLC

F A C u L t Y :

Peachetta S. deFreitas, Esq., Law Offices of Alfreida B. KennySteven R. Finkelstein, Esq., Finkelstein & Virga, P.C.

Afreida B. Kenny, Esq., Law Offices of Alfreida B. KennyTammy R. Lawlor, Esq., Miller & Milone

Marita L McMahon, Esq., NYS Office of Court Administration,Guardian and Fiduciary Services Guardianship ProceedingsHon. Ellen Spodek, Supreme Court, Kings County

Peter J. Strauss, Esq., Epstein Becker & Green, P.C.Edward M. Virshup, Court Examiner

Certified Guardian, Court Evaluator, and Counsel for Alleged Incapacitated Person Training

Thursday, December 9, 2010 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. 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.

iv. 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!

CERTIFIED GUARDIAN, COURT EVALUATOR AND COUNSEL FOR ALLEGED INCAPACITATED PERSON TRAINING

Thursday, December 9, 2010 ◊ 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. 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 IV. 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.

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

CERTIFIED GUARDIAN, COURT EVALUATOR AND COUNSEL FOR ALLEGED INCAPACITATED PERSON TRAINING

Thursday, December 9, 2010 ◊ 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

MHL Article 81MHL Article 81 Guardianship TrainingGuardianship Training

Appointments Appointments Pursuant to Part 36 of the Pursuant to Part 36 of the Rules of the Chief JudgeRules of the Chief Judge

22 NYCRR 3622 NYCRR 36

Overview and RationaleOverview and Rationale

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

Categories related to Categories related to guardianshipguardianship

GuardiansGuardiansCourt EvaluatorsCourt EvaluatorsAttorneys for Alleged Incapacitated Attorneys for Alleged Incapacitated PersonsPersonsCourt ExaminersCourt ExaminersSupplemental Needs TrusteesSupplemental Needs Trustees

Distinguish these categoriesDistinguish these categories

GuardianGuardian–– MHL Art 81, SCPA Art 17MHL Art 81, SCPA Art 17--A, CPLR Art 12A, CPLR Art 12

““Attorney for ChildAttorney for Child”” (Law Guardian)(Law Guardian)–– Family Court and matrimonial Family Court and matrimonial

proceedings.proceedings.–– Privately paid (not in 3Privately paid (not in 3rdrd Dept.)Dept.)

Guardian Guardian ad litem ad litem (GAL)(GAL)–– SurrogateSurrogate’’s Court, Supreme Courts Court, Supreme Court

This training course is certified This training course is certified for these categories ONLYfor these categories ONLY::

GuardianGuardianCourt EvaluatorCourt EvaluatorAttorney for Alleged Attorney for Alleged Incapacitated PersonIncapacitated Person

This course is This course is notnot certified certified training for:training for:

Guardians Guardians ad litemad litemLaw GuardiansLaw GuardiansCourt ExaminersCourt Examiners–– Additional training required from Additional training required from

Appellate DivisionAppellate Division

Supplemental Needs TrusteesSupplemental Needs Trustees

Categories contCategories cont’’d:d: Secondary AppointeesSecondary Appointees

Persons / entities performing services for Persons / entities performing services for guardians (and receivers):guardians (and receivers):–– Counsel to guardianCounsel to guardian–– Accountant for guardianAccountant for guardian–– Auctioneer for guardianAuctioneer for guardian–– Appraiser for guardianAppraiser for guardian–– Property manager for guardianProperty manager for guardian–– Real estate broker for guardianReal estate broker for guardian

Exceptions to Part 36Exceptions to Part 36 (guardianship)(guardianship)

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

Exceptions contExceptions cont’’d:d:

NotNot--ForFor--Profit as personal or property Profit as personal or property guardian.guardian.NotNot--ForFor--Profit as court evaluator.Profit as court evaluator.Bank or trust company as depository Bank or trust company as depository or SNT trustee.or SNT trustee.Appointments without compensation.Appointments without compensation.

AppointmentsAppointments

Must be made by judgeMust be made by judge–– Secondary appointments included.Secondary appointments included.Must be from listsMust be from lists–– Judge may appoint nonJudge may appoint non--list if:list if:

Written finding of Written finding of ““good causegood cause””Filed with fiduciary clerk Filed with fiduciary clerk Judge must send copy to Chief Judge must send copy to Chief Administrator.Administrator.

Disqualifications from AppointmentDisqualifications from Appointment

Judges, housing judges, town and village Judges, housing judges, town and village justices. justices. Relatives of judges AND relatives of the Relatives of judges AND relatives of the spouses of judges (and spouses of the spouses of judges (and spouses of the relatives).relatives).Within the 4Within the 4thth degree (1degree (1stst cousin).cousin).JHOsJHOs on panel on panel ““in a in a courtcourt in a countyin a county””..Court employees (salary grade 24) and their Court employees (salary grade 24) and their close relatives (districtclose relatives (district--wide or statewide).wide or statewide).

Disqualifications contDisqualifications cont’’d:d:Political party chair, executive director or Political party chair, executive director or equivalent; state or county; and close equivalent; state or county; and close relativesrelatives–– 2 year prohibition for politician and family2 year prohibition for politician and family–– Includes members, associates, counsel and Includes members, associates, counsel and

employees of law firm or entity (only during employees of law firm or entity (only during period of association).period of association).

Judicial candidateJudicial candidate’’s campaign staff and s campaign staff and their close relatives by that judge.their close relatives by that judge.

Disqualifications contDisqualifications cont’’d:d:

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

Important Important guardianshipguardianship disqualifications contdisqualifications cont’’d:d:

Guardian (or receiver) may not be Guardian (or receiver) may not be appointed own counsel to guardian,appointed own counsel to guardian,Law firm Law firm ““associatedassociated”” with guardian with guardian (or receiver) may not be counsel to (or receiver) may not be counsel to guardian,guardian,UNLESS court finds UNLESS court finds ““compelling compelling reasonreason””..

Important Important guardianshipguardianship disqualifications contdisqualifications cont’’d:d:

Attorney for AIP may not be guardian Attorney for AIP may not be guardian or counsel to guardian (absolute ban).or counsel to guardian (absolute ban).Court evaluator may not be appointed Court evaluator may not be appointed guardianguardian–– UNLESS court finds UNLESS court finds ““extenuating extenuating

circumstancescircumstances””In writingIn writingFiled with fiduciary clerk.Filed with fiduciary clerk.

Limitations based upon Limitations based upon compensationcompensation

““The capsThe caps””$15,000 Rule$15,000 Rule$75,000 Rule $75,000 Rule One exception: One exception: –– Necessity to maintain continuity of Necessity to maintain continuity of

representation or servicerepresentation or service–– Must be same person or entity.Must be same person or entity.

Compensation defined:Compensation defined:

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

May I accept this appointment?May I accept this appointment? The $75,000 RuleThe $75,000 Rule

Add all Part 36 compensation awards in Add all Part 36 compensation awards in prior calendar year. prior calendar year. –– Example: To determine eligibility in 2010, add Example: To determine eligibility in 2010, add

all compensation awarded in 2009.all compensation awarded in 2009.

If total exceeds $75,000, then appointee If total exceeds $75,000, then appointee may not accept compensated appointment may not accept compensated appointment in subsequent calendar year. in subsequent calendar year. –– Example: To determine eligibility in 2011, add Example: To determine eligibility in 2011, add

all compensation awarded in 2010.all compensation awarded in 2010.

$75,000 Rule cont$75,000 Rule cont’’dd

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

May I accept this appointment?May I accept this appointment? The $15,000 RuleThe $15,000 Rule

Do I anticipate this appointment will Do I anticipate this appointment will result in compensation exceeding result in compensation exceeding $15,000 in ANY calendar year?$15,000 in ANY calendar year?–– If If ““nono””, then appointee may , then appointee may

accept; the $15,000 rule does not accept; the $15,000 rule does not apply.apply.

–– If yes, then appointee must look If yes, then appointee must look at all appointments in current at all appointments in current calendar year.calendar year.

May I accept this appointment?May I accept this appointment? The $15,000 Rule contThe $15,000 Rule cont’’d:d:

If Yes, (i.e. current appointment If Yes, (i.e. current appointment compensation anticipated to exceed compensation anticipated to exceed $15,000):$15,000):Did I accept an appointment in the Did I accept an appointment in the current calendar year in which current calendar year in which compensation is anticipated to exceed compensation is anticipated to exceed $15,000?$15,000?–– If If ““nono””, then appointee may accept., then appointee may accept.–– If If ““yesyes””, then appointee must decline., then appointee must decline.

Contact Us:Contact Us:

Guardian & Fiduciary ServicesGuardian & Fiduciary Services25 Beaver Street Suite 111025 Beaver Street Suite 1110

New York, NY 10004New York, NY 10004www.nycourts.gov/ip/gfswww.nycourts.gov/ip/gfsGFS@courts.state.ny.usGFS@courts.state.ny.usGFS: 212.428.5505GFS: 212.428.5505mserber@courts.state.ny.usmserber@courts.state.ny.us

Part 36 PaperworkPart 36 Paperwork UCS 872UCS 872

UCS 872 Notice of Appointment / UCS 872 Notice of Appointment / Certificate of ComplianceCertificate of Compliance–– Sent to appointee by courtSent to appointee by court–– Appointee must signAppointee must sign–– Appointee returns to fiduciary clerkAppointee returns to fiduciary clerk–– Fiduciary clerk enters receipt into Fiduciary clerk enters receipt into

data base.data base.

UCS 875 UCS 826UCS 875 UCS 826

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

Law Firm Compensation ReportLaw Firm Compensation Report UCSUCS--876876

Required if total Required if total ““members, associates members, associates and employeesand employees”” compensation is compensation is $50,000 or more. $50,000 or more. File by March 31, reporting on prior File by March 31, reporting on prior calendar year.calendar year.List total amount for each individual List total amount for each individual member, associate and employee.member, associate and employee.

Marcie A. Serber Deputy Statewide Coordinator NYS Office of Court Administration Guardian and Fiduciary Services 25 Beaver St Suite 1110 New York, New York 10004 212.428.2830 mserber@courts.state.ny.us www.nycourts.gov/ip/gfs

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.

Tammy R. Lawlor, Esq.Tammy R. Lawlor, Esq.

Tammy Lawlor, Esq. is a Partner at the Law Firm of Miller & Milone, P.C.

Ms. Lawlor is a graduate of the HofstraUniversity School of Law and was admitted

to the New York State Bar in 1997. She also holds a Masters of Business

Administration, specializing in Finance. She has practiced with

Miller & Milone, P.C. since 1997.

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

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.

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;

1. Brought in Surrogate’s Court2. 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

• Birth Certificate

• Request for Information Guardianship Form;

• Fingerprints

• Death Certificate of Predeceased Parent;

• Renunciation

1. Citationa. 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;

2. Notice of Petitiona. 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;

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.

1. Role and Authority of the Guardiana. 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. Accountabilitya. 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.

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.

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 Guardianspecifically define the authority and powers of the Guardian;

d. Initial and Annual Reports are required;

e. Training is required.

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.

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.

• In re Scott Matthews

• In re Hofbauer

• Rivers v. Katz

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

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.

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.

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 1997. She also holds a Masters of Business Administration, specializing in Finance. She has practiced with Miller & Milone, P.C. since 1997. 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.

APPLICATION TO APPOINT GUARDIAN ARTICLE 81 M.H.L.

Relevant statutes: Section �81.05 Venue (where presented) Section �81.06 (a) Who may commence a proceeding Section �81.07 Notice Section �81.08 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. 2217 (b) _ Prior application for similar relief.

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 11501 220 Church Street New York, New York 10013

Page 1 of 1

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X In the Matter of the Application of (CAPTION) INDEX NO._____________ for the Appointment of a Guardian of the Person and/or Property of NOTICE OF

GUARDIANSHIP PROCEEDING (MHL § 81.07 (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 11201

Nature of Proceeding: Article 81 Guardianship

Proceeding Seeking the Appointment

Of a Guardian for Personal Needs

and Property Management of (AIP’s Name)

Alleged Incapacitated Person:

Name:________________________ Address:

______________________ Phone:

_______________________ Names and Addresses of Other Potential Interested Parties: Petitioner:

Name:________________________

Page 2 of a

Address: ______________________

Phone: _______________________ Attorney:

Name:________________________ Address:

______________________ Phone:

_______________________

01 Notice of Guardianship Proceedings.wpd

SAMPLE

Παγε 1 οφ 8

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

_______________________20_____. P R E S E N T:

HONORABLE__________________________ J U S T I C E

-----------------------------------------------------------------X In the Matter of the Application of

________________________________, ORDER TO SHOW CAUSE

for the Appointment of a Guardian of the Person and/or Property of Index No.____________

________________________________, 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

BEFORE THE COURT MAKES THE APPOINTMENT OF SOMEONE

YOU DO NOT APPEAR IN COURT, YOUR RIGHTS MAY BE

SAMPLE

Παγε 2 οφ 8

TAKE CARE OF YOUR PERSONAL NEEDS OR FINANCIAL AFFAIRS.

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

SERIOUSLY AFFECTED.

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, 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 11201

(347) 296-1757

THE COURT HAS APPOINTED A COURT EVALUATOR TO EXPLAIN THIS PROCEEDING TO YOU AND TO INVESTIGATE THE

RIGHT TO TELL THE JUDGE IF YOU DO NOT WANT THE COURT

SAMPLE __________________________________________________________________

Παγε 3 οφ 8

CLAIMS MADE IN THE APPLICATION. THE COURT MAY GIVE THE

COURT EVALUATOR PERMISSION TO INSPECT YOUR MEDICAL, PSYCHOLOGICAL, OR PSYCHIATRIC RECORDS. YOU HAVE THE

EVALUATOR TO BE GIVEN THAT PERMISSION. THE COURT EVALUATOR’S NAME, ADDRESS AND TELEPHONE NUMBER IS:

__________________________________________________________________ __________________________________________________________________

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,

COURT WILL APPOINT A LAWYER FOR YOU. YOU WILL BE

SAMPLE 2. SAID GUARDIAN, IF APPOINTED FOR YOU, SHALL HAVE

Παγε 4 οφ 8

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

REQUIRED TO PAY THAT LAWYER UNLESS YOU DO NOT HAVE THE MONEY TO DO SO.

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 __________________________________

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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 ____________________ _______________(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.

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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 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 __________________________

the person alleged to be incapacitated, by personally delivering to ______________________

manner, the Court may direct an alternative means of service-changes - effective 12/13/04),

SAMPLE served by facsimile, personal or by overnight delivery service to the office of

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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 _______________________________,

_______________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

and it is further

ORDERED, that this Order to Show Cause, Petition and Notice of Proceeding shall be

____________________________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.

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E N T E R

___________________________ J. S. C.

Judge Ellen Spodek Judge Ellen M. Spodek has been a Justice of the Supreme Court since 2008. 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 2006. 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 1988. 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.

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Alfreida B. Kenny, Esq.11 Park Place, 10 Fl.th

New York, New York 10007(212( 809-27000

CONSIDERATIONS FOR COUNSEL FOR THE ALLEGED INCAPACITATEDPERSON 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 ofrepresentation and, as required by Rule 1.4 shall consult with the client as to themeans 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 counselbelieves that the client’s judgment is not good, what the client wants is not in thebest interest of the client, or what the client wants could prove to be detrimental tothe 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 hasmade to the client. Ultimately, the client makes the decision and counsel mustfollow 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 clienthas sufficient capacity to direct counsel. 22 NYCRR, Part 1200, Rule 1.14 states,“When a client’s capacity to make adequately considered decisions in connectionwith a representation is diminished, whether because of minority, mentalimpairment or for some other reason, the lawyer shall, as far as reasonablypossible, maintain a conventional relationship with the client.

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II. RETAINED COUNSEL

� Initial Meeting with the AIP and Subsequent meetings.

� Introduce yourself to the AIP and explain why you are meeting with theAIP.

� 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 asother family members and/or friends, and how these people are involved inthe Article 81 guardianship proceeding.

� Meet with the AIP frequently in your office, as well as at the AIP’sresidence. Meet with the AIP alone, and at other times with those whomthe AIP chooses.

� Explain to the AIP that it sometimes is important to meet with theAIP alone and not in the presence of others to protect lawyer-clientprivilege, as well as to ascertain what the AIP recalls without theassistance of others.

� Counsel also should meet alone with the AIP separately to elicitinformation that the AIP may not be comfortable relating tocounsel if others are present, including those individuals whom theAIP fears or those individuals who may be exerting undueinfluence upon the AIP.

� On each occasion that counsel meets with the AIP, review with the AIPwhat was discussed when counsel last met with the AIP or spoke with theAIP during a telephone discussion.

� Make the best possible assessment of the AIP’s abilities or lack thereofregarding short-term memory and long-term memory.

� It is important to meet with the AIP frequently to avoid the AIP forgettingcounsel’s name, who counsel is, why counsel is meeting with the AIP, andthe fact that the AIP has retained counsel.

� Objectants, including the court evaluator, may suspect that so-called retained counsel was not retained by the AIP because theAIP allegedly does not have the capacity to enter into a contract.

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Although difficult, counsel who represents a family member of an AIP may be able to1

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 mostcases, the Court will allow counsel for family members to participate in the hearing and to worktoward a settlement. The Court will understand without anyone making a statement that counselhas determined that the AIP cannot direct counsel but that counsel will work for the best interestsof the AIP. However, if counsel’s actions demonstrate to the Court that counsel is in factrepresenting the interests of the family member rather than the AIP, the Court will not be soinviting to counsel.

� If the court evaluator or others advise the Court of the possibilitythat the AIP does not have capacity to retain counsel, the Courtgenerally will conduct a hearing solely for the purpose ofdetermining whether the AIP had or has capacity to retain counsel.

� Mental Hyg. Law § 81.10(a) provides that the AIP has the right tochoose and engage legal counsel. The Court is to determinewhether “retained counsel has been chosen freely andindependently 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 isappointed.

� Counsel should determine, if possible, prior to be being retainedwhether the AIP can direct counsel in counsel’s representation ofthe AIP. If retained counsel concludes that the AIP cannot directcounsel, then counsel cannot represent the AIP, and therebyadvocate for the wishes of the AIP. However, counsel canrepresent family members, such as spouse and children, and byrepresenting those individuals proceed to work for the best interestof the AIP.1

� If counsel is retained and paid by family members to represent theAIP, the Court must make a determination that the AIP freely andindependently has chosen counsel to represent the AIP. Adetermination that the AIP acted freely becomes more difficult forthe Court to make when the facts likely will show that prior to thecommencement of the proceeding, the AIP did not know counsel,counsel is a friend of a member of the AIP’s family, or counselrepresents a member of the AIP’s family. It will becomeincreasingly difficult, but not impossible, for the Court to make a

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determination that the AIP acted freely if family members or othersare paying the legal fees incurred in connection with counselrepresenting the AIP.

� If counsel is retained by family members to represent theAIP, there likely will be a conflict between what the familymembers want counsel to do and what the AIP wantscounsel to do. Counsel’s loyalty and duties are owed to theAIP and not to those paying the bills. If family membersare paying the legal fees, the retainer agreement shouldexpressly state that notwithstanding that the familymembers are paying the legal fees, counsel is bound torepresent the AIP in accordance with the wishes of, and theinstructions given by, the AIP and as directed by the AIP,even if such representation is contrary to the wishes of thepayer of the bills.

� The family members may want counsel to represent the AIPin a fashion that is in the best interest of the AIP, while theAIP may want counsel to represent the AIP in a manner thatis not in the best interest of the AIP but is what the AIPwishes. For example, counsel may be able to resolve theArticle 81 proceeding with a settlement by having his clientagree to relocate to an assisted-living facility and give apower of attorney to #1 Son. The members of the AIP’sfamily agree that this is the perfect solution; it avoids theappointment of a guardian, #1 Son, who is an accountant,will handle Mom’s financial affairs, the legal fees will bereduced because there will not be a long and drawn-outhearing, and Mom will not have to listen to the testimonyof friends and family members when they relate to theCourt how she is forgetful and wanders if she is notaccompanied by someone. Mom says to all of them, Go tohell”. I am not leaving my residence of 50 years. I am notforgetful; 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 moneybetter than he can handle my money.” The AIP directscounsel not to settle, to represent her at the hearing, andargue to the Court that she does not have any functionallimitations that impair her ability to provide for herpersonal or property management and that she does notneed a guardian of any sort. Clearly, counsel must advocate

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what his client, the AIP, asks. No doubt, no matter howmany times counsel explains to the family memberscounsel’s ethical obligations, the family members will notunderstand why counsel will advocate for a position thatcounsel knows is not in the best interests of his client, theAIP.

� When the bills are paid by one other than the client, ethicalissues are likely to arise.

III. COURT-APPOINTED COUNSEL

� Court-appointed, as retained counsel, must abide by the wishes and directions ofthe client. If court-appointed counsel believes that the capacity of the AIP is sodiminished that the AIP cannot reason or direct counsel, counsel should considerwhether 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 ofcounsel, counsel may be compelled to only represent the AIP in connection withprotecting the due process rights and other rights of the AIP, rather thanadvocating a frivolous position. 22 NYCRR, Part 1200, Rule 1.16.

IV. PREPARATORY WORK PRIOR TO THE HEARING

� Communicating with the Court Evaluator

� Contact the Court Evaluator as soon as possible after counsel believes thatcounsel understands the facts and the AIP’s position. Give the CourtEvaluator the facts that will help your client. Counsel also should give tothe Court Evaluator facts that are not so helpful that counsel knows thatthe Court Evaluator will learn from other sources. Elicit from the CourtEvaluator what the Court Evaluator has learned from others.

� Ask the Court Evaluator when the Court Evaluator would like to meetwith the AIP.

� Prepare the AIP for the meeting with, and interview by, the CourtEvaluator.

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� Be present at the meeting between the AIP and the CourtEvaluator.

� If your client, the AIP, is forgetful, find a way to handle theforgetfulness without interfering with the Court Evaluator’sinterview of the AIP.

� You may want to tell the AIP not to worry if she cannot remembereverything and advise the AIP to tell the Court Evaluator when shecannot remember and that whatever it is that she has forgotten, sheis sure that she will remember before the Court Evaluator leaves.

� Do not interfere with the Court Evaluator interviewing the AIP. Beprepared for the Court Evaluator to ask the AIP tough questions,which sometimes may seem to be insensitive. Counsel’sinterference with the Court Evaluator could result in doing moredamage to the AIP than allowing the AIP to answer the CourtEvaluator’s questions, even if incorrectly.

� Begin early on discussing with the Court Evaluator why your client doesnot need a guardian and/or the least restrictive alternatives to aguardianship.

� As you learn facts that will assist your client, give those facts to the CourtEvaluator. If you have documents that demonstrate that an individual whoseeks to be a guardian is unfit, furnish those documents to the CourtEvaluator. For example, Son #2 was the agent under a power of attorneyand you have bank statements showing that he used Mom’s money to payhis bookie in New Jersey. You also have receipts showing that Son #2used 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 assetsof the AIP.

� Investigate the Facts.

� After having met with the AIP, at least once, meet with or speakwith friends or family members whom counsel believes will givethe facts.

� Do not rely solely upon what the AIP tells you. Talk with family

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members, home aides, friends, and religious leaders. It is fromthese sources that counsel will learn many of the weaknesses of theAIP’s position.

� When counsel believes that counsel has the facts, counsel shouldengage the AIP in a straight-forward discussion of the facts thatlikely will be presented at a hearing. Listen to the AIP’s responsesand if the responses are not complete or rational, let the AIP knowthat the AIP’s responses will not serve her well at a hearing. Donot sugarcoat what the AIP likely will encounter during the Article81 proceeding, including, but not limited to, family members lying.

� If counsel believes that the petitioner likely will meet petitioner’sburden by proving by clear and convincing evidence that (1) theAIP has functional limitations (2) those functional limitationsimpair the AIP’s ability to provide for her personal needs andproperty management, (3) the AIP lacks understanding orappreciation of the nature and consequences of the AIP’sfunctional limitations, and (4) the appointment of a guardian isnecessary to prevent harm to the AIP, counsel should advise theAIP 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 asettlement that would provide the least restrictive alternatives to aguardianship.

V. THE HEARING

� Work toward having the hearing as soon as possible. If your client is an elderlyperson, the longer the hearing is delayed, the more likely the AIP will lose his/herability to remember. It is likely that with delay, the AIP will becomeprogressively worse.

� Up to the date of the hearing, counsel would have had frequent visits withthe AIP, to be assured that the AIP remembers who counsel is, rememberswhat the Court proceeding concerns, and how the AIP is to conducthimself/herself in the Court.

� If counsel has told the AIP what to expect during the hearing, thatoftentimes reduces some of the AIP’s nervousness.

� In most instances, the AIP should not testify. However, if the AIP does

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not suffer from cognitive limitations, can explain her thoughts well,understands her limitations, can explain how she has addressed herlimitations or intends to address her limitations, does not get flustered,then the AIP may be a decent witness. If the AIP rambles, do not permitthe AIP to testify.

� If the AIP is to testify, you must prepare the AIP for cross-examination. Inaddition to cross-examination, the presiding Justice is likely to ask the AIPa number of questions.

� If counsel discerns that the AIP is intimidated by family members or homecare attendants, or friends who have cared for the AIP, ask the Court topermit the AIP to testify, on the record, in camera.

� Object to any medical facts or evidence that are protected by physician-patient 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 jurytrial. If the AIP intends to exercise the AIP’s right to a jury trial thedemand for a jury trial must be made on or before the return datedesignated 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 rightto trial by jury.

� A jury trial may be difficult for the AIP. Counsel must assess the AIP’sstamina, emotional and psychological we–being, ability to hear unpleasantfacts, ability to sit still and attentive for long periods of time, ability tomaintain the appropriate demeanor throughout the trial as the juryobserves every movement that the AIP makes.

� In most cases, it generally is best to avoid a full hearing. Counsel shoulduse all of counsel’s resources to devise creative solutions that would be theleast restrictive alternatives to guardianship.

S:\abk\Documents\GUARDIAN\Publications\Counsel of the AIP - November 30, 2010.wpd

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THE COURT EVALUATOR© Alfreida B. Kenny, Esq.

October 29, 2005Alfreida B. Kenny, Esq.11 Park Place, 10 Fl.th

New York, New York 10007(212) 809-2700

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. § 81.09(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. § 81.10(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. §§ 81.09(b) and 81.40(b). Although Mental Hyg. § 81.40(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. § 81.40(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. § 81.09(b)(1).

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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

for the personal needs and to manage the property and financial affairs of the AIP, some1

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.

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

familiar with community resources available to the AIP. Economic considerations also may2

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

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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. §

81.09(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

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(Sup. Ct. N.Y. Co.) (Saxe, J.). The Court Evaluator is not to substitute his/her judgment or3

value system for that of the AIP.

The Court Evaluator will advise the court whether the AIP needs a guardian. This

determination will be based upon an assessment of the AIP's functional abilities, mental as

well as physical. If the Court Evaluator determines upon the basis of her/his investigation

of the facts and circumstances that the AIP needs a guardian, the Court Evaluator will advise

the court if the guardian proposed by petitioner is suitable and capable of fulfilling the

duties of a guardian. Equally important, the Court Evaluator will advise the court what

powers the Court Evaluator believes such guardian should be permitted to exercise. A

petitioner often may seek to have a guardian exercise powers that are not necessary based

upon the facts and the circumstances of the case presented. The Court Evaluator must be

ever cognizant of the statutory purpose of Article 81:

The legislature declares that it is the purpose of this act topromote the public welfare by establishing a guardianshipsystem which is appropriate to satisfy either personal orproperty management needs of an incapacitated person ina manner tailored to the individual needs of that person, .. . which affords the person the greatest amount ofindependence and self-determination and participation inall the decisions affecting such person's life.Mental Hyg. § 81.01. (Emphasis added.)

The Court Evaluator must keep uppermost in her/his mind the criterion to be applied

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to the facts and circumstances, and report to the court what is "the least restrictive form of

intervention" possible under the circumstances. Mental Hyg. §§ 81.02(a)(2) and 81.03(d).

The Court Evaluator generally does not learn of his/her appointment until receipt of

service of the order to show cause, which sets forth the Court Evaluator's name, address and

telephone number, and the receipt of the annexed petition, notice and any supporting

papers upon which the order to show cause is based. Mental Hyg. § 81.07(a)(3). Within

three (3) business days after the date of the order to show cause, the order to show cause,

along with the petition, notice, and supporting papers are to be served upon the Court

Evaluator by facsimile, if a facsimile number is provided, by personal delivery, or by

overnight mail. Mental Hyg. § 81.07(e)(2)(ii). The Court Evaluator must meet with and

interview the AIP, interview the petitioner, others having an interest in the proceeding, and

those who may have relevant information, investigate the facts, research the applicable law

and report to the court the facts and the Court Evaluator's conclusions in less than twenty-

eight (28) days. Mental Hyg. § 81.07(b)(1). 4

Upon receipt of service of the order to show cause and petition, the Court Evaluator

first should determine whether the service and manner of service upon him/her comply with

the statute and the order to show cause, if the court has provided for manner of service or

time of service other than that set forth in Mental Hyg. § 81.07(e). The Court Evaluator

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should ascertain information from counsel for the petitioner to determine that all parties

whom the statute mandates to be served and whom the court ordered to be served were

served timely and in the manner provided. The Court Evaluator should request from5

counsel for petitioner copies of the affidavits of service and confirm with those who were

required to be served that they were served as stated in those affidavits of service and in

accordance with the order to show cause.

The 2004 amendments to the Mental Hygiene Law now require that certain

individuals are to receive notice of the proceeding, but these individuals may not be entitled

to receive the petition, and supporting papers. Those who are entitled to receive notice of

the proceeding are: the spouse of the AIP; parents of the AIP; adult children of the AIP; adult

siblings of the AIP; individuals with whom the AIP resides; those to whom the AIP has

granted a power of attorney or designated as a health care agent; any person who has

demonstrated a genuine interest in the AIP; the local department of social services if the AIP

receives public assistance or protective services; the chief executive officer of the facility at

which the AIP resides; and Mental Hygiene Legal Service if the AIP resides in a mental

hygiene facility. Mental Hyg. § 81.07(g)(1). Notice of the proceeding also must be given

to the AIP, the attorney for the AIP, and the Court Evaluator. Mental Hyg. § 81.07(g)(2).

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The Court Evaluator will examine the order to show cause, petition, and notice to

be assured that they comply with the statutory requirements. If they are defective in any

manner, it is the responsibility of the Court Evaluator to advise the court of any defects. 6

During the Court Evaluator's careful review of the petition, he/she will closely

examine the allegations set forth in the petition regarding the description of the functional

abilities and limitations of the AIP (Mental Hyg. § 81.08(a)(3)), the powers being sought in

relation to the alleged functional limitations of the AIP (Mental Hyg. § 81.08(a)(6)), the

available resources the petitioner has considered (Mental Hyg. § 81.08 (a)(14)), and the type

of guardian the petition requests the court to appoint. With the information learned from7

the order to show cause and petition, the Court Evaluator now has a framework to begin

his/her work of interviewing and investigating the facts.

I generally begin by having a discussion with counsel for the petitioner to ascertain

whatever information I can learn from him/her that is not included in the petition. Many

nuances and information a Court Evaluator might deem relevant to assist him/her are not

included in the order to show cause or petition. One often can learn from counsel which

family members are bickering, why certain family members are capable of serving as

guardian, and if family members are not capable, why they are not capable. For example,

one may learn from counsel that W family member is not deemed appropriate to serve as

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guardian because W has a drinking problem; X is not deemed appropriate because the AIP

and X did not have a good relationship; Y is not appropriate because Y has used the power

of attorney granted to him for his benefit and not for the benefit of the AIP, Matter of the

Application of Rochester General Hospital for the Appointment of a Guardian for Albert

Levin, 158 Misc.2d 522, 601 N.Y.S.2d 375 (Sup. Ct., Monroe Co. 1993); and Z is not

appropriate because there would exist a conflict of interest between Z and the AIP. During

discussions with counsel for the petitioner, the Court Evaluator may learn of others who

know the AIP or who have knowledge of the AIP and her/his financial affairs.

Interviewing the AIP and Others and Gathering the Facts.

Article 81 provides a checklist of seventeen (17) areas that the Court Evaluator

should address when investigating the facts and making recommendations to the court.

Mental Hyg. § 81.09(c)(5).

If the AIP can be located and the AIP permits, the Court Evaluator must conduct a8

personal interview of the AIP. The Court Evaluator is required to explain to the AIP the

proceedings, the possible consequences of the proceedings, what powers and duties a

guardian would have with regard to the AIP's person and property and the rights of the AIP.

Mental Hyg. § 81.09(c)(2). The Court Evaluator is obligated to explain to the AIP that he/she

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has a right to a hearing, to be present at the hearing, to be represented by counsel, and to9

demand a jury trial. Mental Hyg. § 81.11. That explanation also should include who will

be responsible for payment of counsel for the AIP. After I have explained to the AIP his/her

right to counsel, one of the first questions asked is, who will pay for this. The AIP is

responsible for payment of her/his counsel fees. However, if the AIP is an indigent person,

the AIP will be entitled to court-appointed 18-B counsel, at the expense of the City, if the

AIP desires counsel or if the issues presented include requests for provisional remedies or

to institutionalize the AIP or granting to the guardian the authority to make major medical

and dental decisions contrary to the wishes of the AIP. Matter of Application of St. Luke's

Roosevelt Hospital Center for the Appointment of a Guardian of the Person and Property

of Marie H., 159 Misc.2d 932, 607 N.Y.S.2d 574 (Sup. Ct., N.Y. Co. 1993), aff'd, 226

A.D.2d 106, 640 N.Y.S.2d 73 (1st Dept., 1996), aff'd, 89 N.Y.2d 889, 653 N.Y.S.2d 257

(1996).

It is best to interview the AIP in his/her present living setting. After explaining to the

AIP the proceeding and determining that the AIP has understood what I have said, I

generally find it helpful to ask the AIP his/her wishes. If the AIP is residing at a facility, ask

the AIP what her daily activities are at the facility and what she would like her daily

activities to be. The AIP's responses will assist the Court Evaluator in determining whether

there is a more appropriate residence that will permit the AIP to live in the manner she

desires or similar to what she was accustomed.

During the course of discussion, the Court Evaluator will be able to assess whether

10

the AIP understands and appreciates his/her limitations. Mental Hyg. § 81.09(c)(5)(viii).

Also during this discussion, the Court Evaluator should attempt to learn from the AIP what

measures the AIP suggests to address the circumstances, keeping in mind that the statute

mandates "the least restrictive form of intervention". Ask the AIP her opinion of the person

whom the petitioner has proposed as guardian. If the petitioner has proposed an institution,

ask the AIP if there is a family member or friend whom she would prefer to serve as her

guardian. Although it often is difficult to obtain a response other than he/she has been nice

to me, try to elicit from the AIP other reasons why the AIP desires a particular person to

serve as guardian.

Although the Court Evaluator will learn from interviews of others their opinions and

beliefs regarding the AIP's ability to carry out normal daily activities, their opinions and

beliefs should not be accepted as fact, including the opinions of health care professionals.

The Court Evaluator should attempt to ascertain whether the opinions expressed by others

are based upon fact. It is incumbent upon the Court Evaluator to attempt to discern if what

others have related as fact is indeed fact. To confirm or disaffirm what has been said by

others may involve the Court Evaluator conducting more than one interview of the AIP and

others to question the AIP and others regarding certain specifics reported to the Court

Evaluator.

11

The Court Evaluator should make every attempt to interview the AIP's family

members. Don't rely upon telephone interviews if the family members are within the same

city where the Court Evaluator has her/his office. Where possible, interview the family

members at their residences. In addition to avoiding any inconvenience to the family

member, much can be learned from observing an individual's residence. For example,

acting as Court Evaluator, I interviewed a family member at her home. The physical

condition of her home revealed to me that this person was not the appropriate person to

serve as guardian of the property of the AIP. Her home was cluttered with papers; there

was barely space to walk in her sizeable home because of the clutter. Her home was the

best evidence of disorganization and confusion, sufficient to conclude that she could not

manage the substantial finances of the AIP. I'm not sure I would have been able to discern

from telephone interviews of this family member that one of the reasons this family member

was not suitable to serve as guardian of the property of the AIP included her lack of

organization. This person, however, was the most appropriate person to serve as guardian

of the person, and I recommended that to the court.

Valuable information can be elicited from neighbors and friends of the AIP. Many

times, neighbors and friends are in the best position to inform the Court Evaluator of the

daily habits of the AIP, how the AIP managed her daily living, whether there had been any

change in the manner in which the AIP managed her daily living, and how the AIP

12

addressed her inability to remember and other limitations. For example, some individuals

are able to address the problem of forgetfulness by placing notes in special places to serve

as a continuous reminder. I also recommend that the Court Evaluator conduct personal

interviews of friends and neighbors at their residences when possible, rather than

conducting telephone interviews.

If the AIP is residing at a facility and desires to return to her residence, the Court

Evaluator must assess whether the AIP's residence is suitable for the AIP. Obtain the

consent of the AIP to visit his/her residence. If the Court Evaluator visits the home of the

AIP when the AIP is not presently residing there, it is best that the Court Evaluator request

another to accompany him/her, preferably a family member or friend of the AIP.

The Court Evaluator should pay particular attention to the physical condition of the

AIP's residence and surrounding neighborhood. Some conditions to consider are: whether

the building has an elevator if the AIP is not ambulatory or suffers from heart disease;

whether there is a senior citizen's center or some other center accessible to the AIP that

could assist the AIP; whether the residence is infested with rodents that can be

exterminated; whether there are fire alarm devices within the residence; whether the AIP

had telephone service; is there heat on a regular and consistent basis; and how does the AIP

maintain the residence with respect to neatness, cleanliness and safety. Also consider

13

housing violations, and do not hesitate to contact the landlord and request the landlord to

correct the violations by specific date.

If the AIP is living in a facility, the Court Evaluator should observe the AIP, as well

as the other residents at the facility, tour the facility and ask to see the AIP's living quarters,

and interview the social worker or case worker assigned to the AIP to determine what

activities the facility offers and in which of those activities the AIP participates. During the

interview with the assigned social worker or case worker, query that person about the

mental attitude of the AIP, whether the AIP has posed any danger to herself or others while

at the facility, has the AIP wandered off at anytime, what is the AIP capable of doing for

herself (e.g., feeding, toileting, dressing, grooming , Mental Hyg. § 81.03(h)), who has

visited with, and shown genuine concern for, the AIP, and has the AIP cooperated with the

staff of the facility. If the AIP must take medication, the caseworker will be able to advise

the Court Evaluator if the AIP can and will administer to herself medication as prescribed.

It also is helpful to learn from the caseworker her/his opinion regarding whether the AIP

would be able to manage her personal needs at her/his residence or some less restrictive

facility.

While it is important to interview the physician who has submitted an affidavit in

the proceeding in support of the petition, these interviews may not reveal any more than

14

what is set forth in the petition. Often the physician whose affidavit is submitted in support

of a petition is not the treating physician, and the information regarding the AIP is based

upon one physical or psychiatric examination conducted solely for the purpose of preparing

an affidavit in support of the petition in the proceeding. If that should occur, the Court10

Evaluator may request the court to permit him/her to examine the prior medical records of

the AIP pursuant to Mental Hyg. § 81.09(d). Notwithstanding the physician-patient

privilege, the statute permits the court to order disclosure of the AIP's medical and

psychiatric records to the Court Evaluator if the court determines the medical records are

likely to contain information that will assist the Court Evaluator in reporting to the court.

Mental Hyg. § 81.09(d). If The Court Evaluator believes that it would be helpful to consult11

with, or obtain the opinions of, experts or specialists, the Court Evaluator should seek an

order on notice from the court granting the Court Evaluator the authority to consult with12

or retain independent specialists or medical experts whose fees will be paid by the AIP.

Mental Hyg. §§ 81.09(c)(6) and (7).

Surprisingly, many physicians and nurses who work in health care facilities will

permit the Court Evaluator to examine the medical records of the AIP upon request without

regard to the content of the appointing order or the physician-patient privilege. (Query, is

it ethical for the Court Evaluator to examine these medical records, knowing that the

physician-patient privilege is being violated?) If the Court Evaluator reviews the medical

15

records without having obtained an order from the court permitting the Court Evaluator to

review such medical records, the Court Evaluator cannot include in the Court Evaluator's

report the physician-patient privileged information if that information was obtained only

from the review of the AIP's medical records.

There, however, is a limit to the disclosure of medical records that the court is

permitted to order. If either federal or state law would restrict such disclosure, the court

does not have the authority to order disclosure. For example, the court does not have the

authority to order the disclosure of medical records of a person if such disclosure would

include "HIV related information" unless the court makes findings of medical and scientific

facts on the record of a compelling need for the information. Pub. Health §§ 2782 and

2785.

Inquire of former and present physicians about the prognosis for the AIP and how

they arrived at their prognoses. For example, if the AIP recently suffered from what is

commonly referred to as a "stroke", ascertain from the physicians what losses of function

have occurred, what functions the AIP likely will regain, and to what extent the AIP will

regain the lost functions. Inquire of physicians, as well as of the occupational therapists and

physical therapists, what therapy or medical procedures the AIP will require to bring about

a level of improvement, what is the level of improvement that can be expected, and when

16

is it likely to occur. Query the physicians regarding the AIP's medications: Are there13

other medications that could be prescribed that will result in fewer side effects or reduce

manic or depressive or aggressive states of behavior? Does the AIP need all of the

medications prescribed? How do these medications interact, counteract and affect each

other? (Query, whether the responses to each of the foregoing questions violates the

physician-patient privilege?) If the Court Evaluator determines that the former or present

physicians are not able to respond in a meaningful fashion or that an independent medical

expert is needed, the Court Evaluator may retain an independent medical expert after the

court finds that it is appropriate. Mental Hyg. § 81.09(c)(7). The cost of the medical expert

is paid for from the funds of the AIP.

Finding the AIP's Assets.

Petitions for the appointment of a guardian of the property are to include the

approximate value and description of the financial resources of the AIP and whether the AIP

is a recipient of public assistance. Mental Hyg. § 81.08(a)(8). The information set forth in

the petition is the starting point for the Court Evaluator. Do not assume that the petitioner

knows of all of the assets of the AIP or has truthfully alleged the approximate value of the

AIP's assets. One of the primary functions of the Court Evaluator is to advise the court of

the sources of, extent of, and nature of, the AIP's resources.

17

If the AIP is divorced, the Court Evaluator should determine and advise the court if

there is an order of support or divorce decree that orders the former spouse to contribute

financially to the AIP. If the AIP's spouse is deceased, determine if the AIP is a beneficiary

of a testamentary trust, pension benefits, social security or veterans' administration benefits.

If the AIP's spouse is recently deceased, obtain a copy of the deceased spouse's will. It may

be necessary for the Court Evaluator to exercise her authority under Mental Hyg. § 81.09(e)

to take what steps are necessary to preserve the AIP's interests and property. If, for

example, the period of time during which the surviving spouse may exercise her spousal

right of election is about to expire, the Court Evaluator should request the court to appoint

a temporary guardian to exercise the AIP's right of election against the will. Mental Hyg.

§ 81.23. If the AIP's spouse died intestate, review the files of the Public Administrator to14

determine what property will pass to, and be distributed to, the AIP.

Determine who has custody of the AIP's mail, and examine all mail in the custody

of that person. Bank statements, other financial statements, social security, pension or15

retirement, or dividend checks generally will be included in the mail. Determine who16

has custody of the AIP's bank passbooks. Review bank statements and passbooks to

determine if there have been any unusual withdrawals or activity. If these documents

cannot be located, contact the banking and financial institutions where the AIP maintained

accounts to obtain account activity information. If the account activity information reveals

18

unusual withdrawals or a change in the pattern of withdrawals, ascertain who made the

withdrawals. If the Court Evaluator learns that the AIP made the withdrawals, ascertain who

accompanied the AIP when she/he made the withdrawals.

Withdrawals from the AIP's accounts may have been made pursuant to the exercise

of a valid durable power of attorney. The Court Evaluator is obligated to advise the court

of the existence of a general power of attorney, durable power of attorney (power of

attorney which survives disability or incompetence), living will, do not resuscitate order,

and health care proxy, as well as suspected misuse of any authority or powers granted by

the AIP. Mental Hyg. § 81.09(c)(5)(xi).

The court has the authority to direct the attorney-in-fact to account. Gen. Oblig.

§ 5-1505(2). See, In the Matter of the Application of Rochester General Hospital for the

Appointment of a Guardian for Albert Levin, 158 Misc.2d 522, 601 N.Y.S.2d 375 (Sup. Ct.,

Monroe Co. 1993). Section 81.22(b) of the Mental Hygiene Law expressly provides that no

guardian shall have the authority to revoke any of the foregoing instruments. Although the

guardian does not have the authority to revoke a power of attorney, health care proxy,

living will, or do not resuscitate order, the court may revoke, modify or amend any of the

aforesaid documents executed by the AIP prior to the commencement of the proceeding if

the court finds that the AIP executed the documents while incapacitated. Mental Hyg. §

19

81.29(d). It, therefore, is incumbent upon the Court Evaluator to bring to the court's

attention any facts which suggest misfeasance or malfeasance with respect to the AIP's agent

fulfilling her duties in accordance with any of the aforesaid documents executed by the

AIP.17

If there exists a valid power of attorney containing broad powers, there may be no

need for the appointment of a guardian. The person to whom the AIP has granted the

power may be able to handle all of the AIP's affairs. In the Matter of Francis E. Maher, N.Y.

L.J., Sept. 7, 1993, at 24 (Sup. Ct., Kings Co.), aff'd 207 A.D.2d 133, 621 N.Y.S.2d 617 (2nd

Dept. 1994), the AIP, an attorney, granted a power of attorney to his wife, also an attorney.

Justice Leone decided that there was no need for the appointment of a guardian since the

AIP had adequately provided for the management of his financial affairs. If the Court

Evaluator determines that the AIP's attorney-in-fact has the authority to handle most of the

AIP's financial affairs, but not all, it may be appropriate to recommend to the court that the

court not appoint a guardian, but instead authorize the attorney-in-fact to transact a single

transaction or series of transactions. Mental Hyg. § 81.16(b).

Section 81.09(e) provides that if the Court Evaluator has reason to believe that the

property of the AIP is in danger of being misappropriated, wasted, or otherwise in jeopardy,

the Court Evaluator has the authority to take the steps necessary to preserve the property of

20

the AIP pending the hearing. For example, if the AIP has established a joint bank account

with her money with another for convenience, and that joint account owner has been

withdrawing the AIP's money from the joint account for his benefit and not for the benefit

of the AIP, the Court Evaluator may deem it appropriate to seek a temporary restraining

order and enjoin the joint account owner from making withdrawals from the joint account

while the Article 81 proceeding is pending.

The statute does not specify what necessary steps the Court Evaluator may take.

Preservation of the AIP's property may include depositing the AIP's cash in a bank account,

and paying rental arrears and other necessities for the daily living of the AIP from the AIP's

funds. If the Court Evaluator suspects that one to whom the AIP has granted his/her power

of attorney is siphoning off the funds of the AIP, the Court Evaluator should immediately

advise the court and counsel for the AIP, if one has been appointed, and demand an18

accounting pursuant to Gen. Oblig. § 5-1505(2). The Court Evaluator and counsel for the

AIP also should consider seeking a temporary retraining order against the AIP's bank

accounts to prevent further withdrawals of the AIP's funds during the pendency of the

Article 81 proceeding.

21

The Court Evaluator's Report.

Interviewing the AIP, family members, friends, neighbors, health care professionals,

and others having any knowledge regarding the AIP in the manner described above, when

possible, is critical to the process. The Court Evaluator should keep uppermost in mind

what he/she is required to report to the court and conduct all interviews with those factors

in mind. A review of what findings Article 81 requires the court to make when appointing

a guardian also is a helpful guide to the Court Evaluator with respect to what should be

included in the Court Evaluator's report regarding the suitability of the proposed guardian

and other matters. Mental Hyg. §§ 81.02, 81.15 and 81.19(d).

If the Court Evaluator properly performs his/her duties, the court is better able to

discharge its duty in accordance with Mental Hyg. § 81.02(b) when determining if the AIP

is an incapacitated person under Article 81 based upon clear and convincing evidence,

Mental Hyg. 81.12(a), and, if so, whether the AIP is likely to suffer harm as a result of this

incapacity unless a guardian is appointed.

In connection with providing the court with a meaningful and comprehensive

report, the Court Evaluator should make every attempt to discover the truth and report it to

the court. It is not sufficient for the Court Evaluator merely to report to the court what each

22

person interviewed has stated without advising the court what the Court Evaluator has

determined or believes the facts to be. Moreover, the Court Evaluator must advise the court

of the basis of the Court Evaluator's determinations and conclusions and how the Court

Evaluator arrived at these determinations and conclusions. To do less is not helpful to the

court.

The Court Evaluator's report must set forth specific information regarding the AIP's

abilities and functional limitations. Mental Hyg. § 81.09(c)(5)(vii). If the AIP is incontinent

but able to address that circumstance by wearing adult diapers and otherwise attending to

her hygienic needs, advise the court. Advise the court if the AIP is unable to feed herself

and whether home care would be an appropriate solution. Perhaps the AIP is unable to

perform household chores, or go to the grocery store without losing her way home. If that

is the case, report it to the court, and suggest what alternatives may be available. Perhaps

it can be arranged for a neighbor, friend or visiting home care companion to perform

household chores, cook for the AIP, and accompany the AIP shopping, to the bank, and to

entertainment events.

When preparing the Court Evaluator's report and reporting the Court Evaluator's

determinations and conclusions to the court, reflect upon the words of Justice Kristin Booth

Glen, "[P]eople must be given the opportunity to make bad choices as long as the person

23

understands the consequences." The Court Evaluator is not to substitute his/her judgment

or value system for that of the AIP. See, Matter of Gordon, N.Y. L.J., November 22, 1994,

at 33, col. 4 (Sup. Ct., Rockland Co.); Robert Abrams, Esq., "Guardians, and Decisions

Regarding Life Sustaining Treatment", N.Y. L.J., November 9, 1994, at 1, col. 1).

The Court Evaluator's report should set forth whom the Court Evaluator interviewed,

when the interviews occurred, the locations of the interviews, the dates of the interviews,

and the duration of the interviews. The report should indicate the degree of participation

and cooperation of each person interviewed. If relevant, the report should include the

Court Evaluator's perceptions of the individuals interviewed. The Court Evaluator's report

also should include a description of the present physical location of the AIP, as well as a

physical descriptions of all proposed residences for the AIP. The Court Evaluator should

indicate in the report if the Court Evaluator believes one location to be more suitable than

others and set forth the factual basis for the Court Evaluator's determinations and

conclusions.

The Court Evaluator will report to the court if the AIP needs a guardian. If the Court

Evaluator determines that the AIP does not need a guardian, but that less intrusive measures

may be appropriate, those determinations should be stated expressly and clearly in the

report. For example, the court may determine after reading the facts and findings of the

24

Court Evaluator that it will not appoint a guardian, but direct an individual or institution to

consummate a single transaction or a series of transactions to provide for the personal or

financial needs of the AIP. Mental Hyg. § 81.16. This resolution would serve the statutory

mandate to order the "least restrictive form of intervention".

The Court Evaluator may determine that while the AIP needs a guardian, the

petitioner seeks a guardian to exercise powers that may not be necessary or that are overly

broad. It is the duty of the Court Evaluator to advise the court what less intrusive measures

can be employed to accomplish the same goals. Examples of less intrusive measures may

be home care as an alternative to institutional care, and limiting the power of the guardian

of the property to handling investments, rather than managing the regular checking account

of the AIP in which only the social security benefits or other benefits amounting to small

sums of money are deposited.

The Court Evaluator may determine that while present circumstances dictate the

need for a guardian, the AIP may not require a guardian for her lifetime. Recommend to

the court what the duration of the guardianship should be. Mental Hyg. § 81.15(b)(6).

If the Court Evaluator has determined and advised the court that the AIP needs a

guardian to manage the AIP's personal needs and/or property, the report should include a

25

discussion of whether the proposed guardian is suitable to fulfill the statutory duties of a

guardian. In this regard, the report should include an examination and discussion of the

proposed guardian's abilities, limitations, character and integrity. If a family member,

neighbor or friend, as opposed to a stranger, is proposed as guardian, report to the court the

past and present relationship between the proposed guardian and the AIP: Did the family

member visit the AIP regularly prior to the commencement of the proceeding? What

assistance had the proposed guardian offered to the AIP prior to the commencement of the

proceeding? How familiar is the proposed guardian with the personal and financial needs

of the AIP? Has the proposed guardian properly exercised the power of attorney granted

by the AIP? Has the proposed guardian mismanaged or otherwise converted to his/her own

use any funds of the AIP?

The report is to advise the court of any existing or potential conflicts of interest in

the event the proposed guardian or other candidate for appointment is appointed. Mental

Hyg. §§ 81.09(c)(5)(xv), 81.09(c)(5)(xvi), and 81.19(d). The report should state whether19

the proposed guardian has a plan of action for addressing the needs of the AIP and whether

the plan is realistic and adequate to address the needs of the AIP. Mental Hyg. §

81.09(c)(5)(xiv). The Court Evaluator's report also should advise the court, based upon a

restatement of the information ascertained during interviews and the Court Evaluator's

perceptions of the proposed guardian, if the proposed guardian is likely to faithfully perform

26

his/her duties.

While the proposed guardian may be capable and suitable to serve as guardian of

the person, this person may not be suitable to serve as guardian of the property. The factors

leading the Court Evaluator to such a determination should be set forth in the Court

Evaluator's report. Those factors may include the nature and value of the AIP's investments,

the AIP's interests in ongoing business concerns, the value of the AIP's total assets, and the

sophistication or business acumen of the proposed guardian. If the Court Evaluator20

determines that those proposed to serve as guardians are not suitable or appropriate, and

the Court Evaluator believes she/he has ascertained sufficient information to recommend

to the court a suitable guardian, the Court Evaluator should include in the report her/his

recommendations and set forth the reasons for the recommendations.

The Court Evaluator is required to report to the court the wishes of the AIP,

notwithstanding how eccentric or bizarre they may seem. The report should advise the

court if the AIP has a preference for who should serve as guardian and the basis of the AIP's

preference as related by the AIP and others to the Court Evaluator. Considering the wishes

of the AIP is paramount in Article 81 proceedings and those wishes should be reported

thoroughly and accurately.

27

The AIP can best express his/her wishes and concerns if the Court Evaluator has fully

and completely explained what powers the proposed guardian will exercise over the AIP's

life. To illustrate the extent of the power of the guardian of the person over the AIP, Mental

Hyg. § 81.22(a)(8) will allow the guardian of the person to make routine and major medical

and dental treatment decisions, as defined in Mental Hyg. § 81.03(I).

In addition to the concerns the AIP may have with respect to where the AIP is to

reside, the identity of the guardian, and the extent and nature of the control a guardian will

be permitted to exercise over the life of the AIP, the AIP also may be concerned that after

the appointment of a guardian, he/she will not be able to continue to give gifts to friends or

family members. If the AIP customarily gave gifts to family members and close friends at

certain times or on particular occasions, include these facts in the report and recommend

that the guardian continue the AIP's pattern of giving gifts if the AIP's financial resources are

sufficient. Mental Hyg. § 81.21(a)(1).

The report should advise the court of those persons who are financially dependent

upon the AIP, the AIP's desire regarding continuation of any such financial support, as well

as the AIP's legal obligation to support others. Mental Hyg. § 81.09(c)(5)(xiii). If the Court

Evaluator determines that the AIP is legally obligated or desires to continue to financially

support others, this too should be stated in the report. If the AIP is financially able to

28

continue to give financial support, the report should include a recommendation that the

guardian continue to financially support those individuals. Mental Hyg. §§ 81.20(a)(6)(iv)

and 81.21(a)(2). Any information that the Court Evaluator can include in the report that will

assist the guardian to be appointed should be included.

Include in the report all available information regarding existing and potential assets

and financial interests of the AIP, Mental Hyg. § 81.21, as well as any public benefits the

AIP is receiving or is entitled to receive, Mental Hyg. §§ 81.21(a)(12) and 81.22(a)(7). It is

important to advise the court if any of the AIP's bank accounts is held in trust for another

or is a joint account. If the AIP has no other assets but the aforementioned types of

accounts, it may be appropriate for the Court Evaluator to recommend to the court that it

expressly include in its order that the guardian of the property have the authority to marshall

those assets for the benefit of the AIP. If the order does not expressly state that the guardian

of the property has the authority to marshall those assets maintained in bank accounts in

trust for another ("totten trusts") or jointly held accounts, many banks will not turn over to

the guardian the assets maintained in such accounts if the order contains only general

language that the guardian of the property is to marshall all of the assets of the AIP. See,

Banking Law § 675; Estate of Max Sloane, N.Y. L.J., Dec. 29, 1994, at 27, col. 2 (Sur. Ct.,

Nassau Co.); and Matter of Heller (Ratner), N.Y. L.J. July 28, 1995, at 24, col. 5 (Sup. Ct.,

Kings Co.).

29

If the Court Evaluator believes that there is property of the AIP that may have been

converted or that the Court Evaluator has not been able to locate within the time period

from the date of service of the order to show cause and petition upon the Court Evaluator

until the date of the hearing, the Court Evaluator should recommend to the court that it grant

to the guardian to be appointed the authority to investigate any alleged conversion of

property and to commence a proceeding to discover the property of the AIP. Mental Hyg.

§ 81.43.

THE HEARING.

The Court Evaluator should insist that the AIP be present at the hearing. If the AIP

physically is unable to come to court, the court is to go to the AIP. Mental Hyg. § 81.11(c).

The statute provides for two circumstances when the AIP's presence at an Article 81 hearing

is not mandated: (1) the AIP is not present within the State, or (2) if the hearing must be

conducted where the AIP resides because the AIP cannot physically come or be brought to

court, and the information before the court clearly establishes that the AIP is completely

unable to participate in the hearing or no meaningful participation will result from the

person's presence at a hearing. Mental Hyg. § 81.11(c).

30

Often, the petition will allege that the AIP cannot participate meaningfully in a

hearing. Petitioners often assume because the AIP may suffer from a form of dementia,

his/her participation is meaningless. I have found the contrary to be true. Those suffering

from forms of dementia, "stroke", or speech difficulties often can communicate their wishes

in ways other than through verbal communication. The Court Evaluator may have learned

that the AIP's dementia affects him/her most during certain periods of the day. If that is the

case, the Court Evaluator should request the court to reschedule the hearing for a time of

the day when the AIP is likely to be most alert, able to comprehend the proceeding and

express her/his wishes and desires.

The AIP, petitioner, or Court Evaluator may request the court, upon good

cause, to seal all or a portion of the court's records in Article 81 proceeding. Section21

81.14 sets forth what the court should consider when deciding whether to seal all or a

portion of the record of the Article 81 proceeding. Similarly, the court may exclude

members of the public if good cause has been shown and after notice to the AIP, allowing

the AIP an opportunity to object. Requests to seal court records and exclude the public are

drastic measures and are to be strictly scrutinized.

If the Court Evaluator testifies and is subject to cross-examination, the Court

Evaluator's report may be admitted into evidence, notwithstanding that it most assuredly is

31

replete with hearsay. Mental Hyg. § 81.12(b). Although the court may for good cause

shown waive the rules of evidence, Mental Hyg. § 81.12(b), the court is not to admit the

Court Evaluator's report into evidence if the Court Evaluator does not testify and is not

subject to cross-examination; to do so would be a classic case of violating the AIP's rights

of due process unless counsel for the AIP waives the AIP's right to cross-examination of the

Court Evaluator, in which event the Court Evaluator's report will be admitted into evidence.

If the Court Evaluator has not accurately reported the facts to the court, or has

reported only her/his perceptions and opinions without providing the court with any basis

in fact, or has reported hearsay without any attempt to distill the facts, the report is useless

to the court, which must apply the standard of clear and convincing evidence to the

proceeding. Therefore, the court should not consider a Court Evaluator's report when

making its determinations if that report has not been subjected to, and withstood scrutiny

under, fundamental principles of due process.

Moreover, the Court Evaluator should be advised that inclusion of medical records

as a part of the report may be subject to objections on grounds of hearsay and may not be

admissible. This probability should instruct the Court Evaluator that while medical records

and hearsay may be included in the Court Evaluator's report, the safety valve for the Court

Evaluator, if medical records or information are excluded on grounds of the physician-

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patient privilege or hearsay, is a report that is fact intensive, reports interviews conducted

by the Court Evaluator (excluding, where possible, hearsay upon hearsay), and reports the

Court Evaluator's observations.

Medical records may repeat rumors and beliefs of others, obviously, with no

assurance that the statements are assertions of truth. CPLR § 4518. Accordingly, medical

records may not always measure up to the business exception rule. Even if the social

worker or other hospital employee who made the entry is called upon to testify, that

declarant, in all probability, will not be able to testify that the entries were made by those

who were under a business duty and that there was a chain of custody of the business

records. In Matter of Leon RR, 48 N.Y.2d 117, 421 N.Y.S.2d 863, 867 (1979), it becomes

obvious that many portions of a medical record may not be admissible on hearsay grounds

when the court stated:

Some of the entries in the case file were based on firsthandobservations of Leon's caseworker which were recordedshortly after the occurrences, rendering them admissible.Many of the remaining entries, however, consisted ofstatements, reports and even rumors made by persons underno business duty to report to petitioner. Especially in thecontext of this case, it is essential to emphasize that themere fact that the recording of third-party statements by thecaseworker might be routine, imports no guarantee of thetruth, or even reliability, of those statements. To construethese statements as admissible simply because thecaseworker is under a business duty to record would be toopen the floodgates for the introduction of random,

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irresponsible material beyond the reach of the usual tests foraccuracy cross - examination and impeachment of thedeclarant.

Knowing that the Court Evaluator will be required to testify if the Court Evaluator's

report is to be admitted into evidence and knowing that rumors and hearsay upon hearsay

contained in a report may not be admissible, should assist the Court Evaluator in the

preparation of his/her report to focus upon elucidating for the court the facts which support

his/her determinations and conclusions.

Some judges will allow the Court Evaluator to cross-examine witnesses if the AIP is

not represented by counsel. The statute does not provide for the Court Evaluator

performing this role, as this is the role reserved to counsel for the AIP. However, in the

interest of justice and conserving judicial resources, it would seem that permitting the Court

Evaluator to cross-examine witnesses when the AIP is not represented by counsel is a proper

course of action, will assist the court in learning the facts and circumstances regarding the

AIP, and is the sound administration of justice.

Compensation of the Court Evaluator.

The court may award a reasonable payment to the Court Evaluator for services

rendered. When awarding fees to the Court Evaluator, the court considers the financial

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resources of the AIP. Therefore, the Court Evaluator may not be awarded the value of

his/her services if the AIP's assets are minimal. If the AIP dies before the court makes a

determination or the court renders a judgment dismissing the petition, the court may order

the petitioner or the estate of the AIP to pay the reasonable fees of the Court Evaluator or

both to pay the fees in proportions the court deems just. Mental Hyg. § 81.09(f).

There appears to be no statutory authority for the petitioner to withdraw the petition

after commencement of the proceedings. Accordingly, there is no statutory authority for

the payment of fees when an Article 81 proceeding is withdrawn, keeping in mind that it

is questionable whether the proceeding can be withdrawn. See, In the Matter of the

Application of Esther Chachkers, Director of Social Services of New York University

Medical Center for the Appointment of a Personal Needs and Property Management

Guardian of Shirley Weissberg, 159 Misc.2d 912, 606 N.Y.S.2d 959 (Sup. Ct., N.Y. Co.

1993). In Chachkers, the court did not discontinue the proceeding because, inter alia, no

notice of discontinuance was filed by petitioner pursuant to CPLR § 3217(a)(1). The court's

discussion regarding whether discontinuance is appropriate in an Article 81 proceeding is

illuminating. It, therefore, would appear that it is left to the sound discretion of the court22

to determine who will pay the Court Evaluator's reasonable fees.

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CONCLUSION.

It is important to keep uppermost in mind that the AIP's civil rights are at stake and

ultimately may be affected and curtailed as a result of the Article 81 proceeding. Therefore,

view your role as Court Evaluator of gathering the facts and reporting the facts to the court

as critical to the process of insuring that the statutory protections and constitutional rights

of the AIP are not violated by well-meaning "do gooders". If you understand that it is the

role of the presiding judge to make a finding regarding the AIP's capacity based upon clear

and convincing evidence, your fact finding and reporting will be directed toward

elucidating for the presiding judge the facts to assist the judge in making a finding in

accordance with the dictates of the statute based upon clear and convincing evidence. Be

ever alert to applying your value system and others applying their value systems and

judgments to the manner in which the AIP has chosen to live her life under less than ideal

circumstances, and do not impose or substitute your value system or judgments for those

of the AIP. If you impose your value system upon the manner in which the AIP has23

chosen to live her life, it is not possible to adhere to the mandate of the statute to

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impose the least restrictive interference possible in the life of the AIP. Article 81 is not

designed to protect individuals from making bad choices and decisions; it is designed to

assist those who do not understand the consequences or the harm that they may suffer from

their choices.

S:\abk\Documents\GUARDIAN\Publications\COURTEV- November, 2010.wpd

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1. Mental Hyg. § 81.02(c) and (d).

2. Pursuant to Mental Hyg. § 81.09(c)(5)(vi), the Court Evaluator must report to the court thoseresources that may be available to the AIP, as defined in Mental Hyg. § 81.03(e). The statutedirects the court to take into consideration those resources that may be available to the AIP.The definition of "available resources" includes visiting nurses, homemakers, home healthaides, adult day care and multipurpose senior citizen centers, powers of attorney, trusts,representative and protective payees, and residential care facilities. Mental Hyg. § 81.03(e).

3. Mental Hyg. § 81.09(c)(5) sets forth as a guideline seventeen (17) areas or matters to beexplored and reported upon to the court. Mental Hyg. § 81.09(c)(5) is not meant to be anexclusive list. There may be other areas about which the Court Evaluator should inquire andreport to the court.

4. Mental Hyg. § 81.07(b)(1) requires the court to set the hearing date not more than twenty-eight (28) days after the date of signing of the order to show cause. The Court Evaluator oftenwill have less than twenty-eight (28) days to perform the investigatory and reporting tasks. TheCourt Evaluator should use his/her best efforts to deliver the Court Evaluator's report to thecourt forty-eight (48) to twenty-four (24) hours prior to the hearing date in order to provide thecourt with the opportunity to review the Court Evaluator's report and consider the contents ofthe Court Evaluator's report. Regrettably, some judges have their own rules regarding whomthe Court Evaluator should serve with the Court Evaluator’s report. It is wise to check with thechambers of the appointing judge to learn of that judge’s rules. In some instances theindividual rules of a judge may serve to deprive the AIP of effective assistance of counsel. Justsuch an example is when a judge requires that the Court Evaluator not deliver the report tocounsel until after the judge has reviewed the Court Evaluator’s report. Clearly, such a rulehampers counsel for the AIP in connection with representing the AIP at the hearing. Whilejudges may have had good intentions when developing such rules, they obviously haveoverlooked the due process rights of the AIP and the right to effective assistance of counsel.

5. It is important to have a discussion with counsel for the petitioner and with petitionerregarding the identities of those persons whom the statute requires to be served. Mental Hyg.§§ 81.07(e) and (g). As Court Evaluator, during the course of my investigation of the facts, Ihave discovered that petitioners have failed to identify and set forth in the petition the names

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of the siblings of the AIP, or knowingly have given incorrect addresses of the siblings of theAIP, thereby insuring that those persons would not be served.

6. Except for a failure to serve the AIP in accordance with Mental Hyg. §81.07(e)(1)(I), thecourt is not required to dismiss the petition for technical defects. Mental Hyg. § 81.42(a).

7. If the petition alleges that the AIP is in need of major medical or dental treatment or thepetition requests that the guardian have the authority to make major medical or dentaltreatment decisions, as defined in Mental Hyg. § 81.03(I), and the AIP does not consent, orthe petition requests the appointment of a temporary guardian, Mental Hyg. § 81.23(a), or atemporary restraining order or injunction, Mental Hyg. § 81.23(b), or any other provisionalremedies set forth in Mental Hyg. § 81.23, Mental Hyg. § 81.10(c)(4) and (5) mandate that thecourt appoint counsel to represent the AIP. If the court has inadvertently failed to appointcounsel when the appointment of counsel is mandated by the statute, immediately call thisoversight to the attention of the court.

8. In Surrogate's Court proceedings, you may know that the AIP, a distributee of thedecedent, is living on the streets of the City, without a residence address, and that the AIP maybe unwilling to appear in court. The most appropriate court to hear such an Article 81proceeding is the Surrogate’s Court in which the proceeding for probate or administration ispending. It may be impossible to cause the AIP to appear in court. The number of Article 81proceedings wherein the petitioner requests the court to find that a homeless person is anincapacitated person has increased. Be advised that in many counties, the Surrogate's Courtdiscourages the institution of Article 81 proceedings in that Court, although the Surrogate'sCourt may be the most appropriate court in which to commence the Article 81 proceedingwhen one of the distributees or legatees is entitled to receipt of a bequest.

9. Mental Hyg. § 81.10(c) sets forth seven (7) specific circumstances when the AIP must berepresented by counsel. Because some of the seven (7) circumstances may arise after serviceof the petition but during the process of the Court Evaluator's investigation, it is important tobe alert to these seven (7) circumstances so that the Court Evaluator immediately may informthe presiding judge that the AIP's right to counsel has been triggered.

10. The 2004 amendments prohibit courts from requiring that a physician’s affidavit besubmitted in support of the petition. Mental Hyg. §81.07(c)(3). Note the thoughtful articleby Anthony J. Cerrato, Jr., Esq., "Doctor-Patient Privilege in Light of Article 81", N.Y. L.J., July13, 1995, at 1, col. 1., in which Mr. Cerrato correctly states that Article 81 does not require

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that the petition be supported by a physician's affidavit. Some judges, however, erroneouslyhad insisted upon such an affidavit, and had rejected a petitions not supported by a physician'saffidavit. In Matter of Higgins, N.Y. L.J., October 6, 1995, at 27, col. 2 (Sup. Ct., N.Y.County), Justice Ramos struck the treating physician's affidavit in support of the Article 81petition because it violated the physician-patient privilege. The Court Evaluator and counselfor the petitioner requested the Court to strike the physician's affidavit because the AIP'sphysician-patient privilege had been violated. Justice Ramos cited to the Goldfarb standard,"unless the AIP puts the medical issue in question before the court, the privilege is notwaived". Matter of Goldfarb, 160 Misc.2d 1036, 612 N.Y.S.2d 788 (Sup. Ct., Suffolk Co.,1994). Justice Ramos held, "[t]he unauthorized submission of medical affidavits is a violationof the patient-physician privilege and should not be included as part of the petition." The2004 amendments put to rest the problem counsel had encountered with certain courts thatgrafted their own rules onto the statute.

Another interesting and unsettled aspect of the law that Matter of Higgins raises iswhether the Court Evaluator has standing to make motions or applications to the Court.Counsel for petitioner argued that the Court Evaluator did not have standing. Justice Ramosrejected counsel for petitioner's argument and stated that one of the functions of the CourtEvaluator is to bring to the attention of the court the violation of the AIP's right to maintain theconfidentiality of her medical records.

11. Cerrato, supra, note 10 at 27. Mr. Cerrato suggests that if one properly reads andinterprets Article 81, a review of medical records is not necessary because the Court Evaluator,as well as petitioner, should focus upon functional limitations, which generally are observableto a lay person. See, Matter of Tara X, N.Y. L.J., September 18, 1996 , at 27, col. 1 (Sup. Ct.,Suffolk Co.), in which Justice Prudenti held that when counsel for the AIP objects to disclosureto the Court Evaluator of medical records, the court should exercise its powers to waive thephysician-patient privilege sparingly, since to do otherwise "would afford respondents inArticle 81 proceedings a modicum of due process which falls below that afforded theircounterparts in other legal proceedings and would effectively nullify the heavy quantum ofproof imposed upon the petitioners seeking guardianship of [sic.] over non-consenting personsunder § 81.12(a). The integrity of the adversarial process, a cornerstone of traditional notionsof due process and intended by the drafters of Article 81 to prevail in proceedings commencedthereunder, would be significantly impaired if these repercussive circumstances werepermitted to exist."

12. Although Mental Hyg. § 81.09(d) does not require the Court Evaluator to make anapplication on notice to the Court for permission to inspect the AIP’s medical and psychiatric

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records, in my opinion, the Court Evaluator should give notice to the AIP in order to provideto the AIP the opportunity to object to the Court Evaluator inspecting the AIP’s medical orpsychiatric records.

13. Because Article 81 is a functional limitations statute, the most important inquiries to makeare: (1) what is the present condition? (2) what is the prognosis? and (3) what is required toimprove the AIP's prognosis? For example, what therapy, medication, and other therapeutictreatments would be required to improve the AIP's condition.

14. Once the Court Evaluator requests the court to appoint a temporary guardian, counselmust be appointed to represent the AIP. Mental Hyg. §§ 81.10(c)(5) and 81.23.

15. The AIP may have someone who assists her with her mail, although the mail remains withthe AIP. Interview the person who assists the AIP with her mail. If the opportunity ispresented, search the home of the AIP for mail, uncashed checks, etc. If the AIP is in a facilityand you want to conduct a search, request the social worker of the facility or community, ora friend or religious leader to accompany you. Do not enter the residence of the AIP withouta reliable person accompanying you, who later may be your witness. It also is a good ideato take photographs of the AIP's residence. If the AIP is residing at her residence, of course,you will not be so insensitive as to conduct a search of her home.

16. You may find large sums of cash hidden in the AIP’s residence or a number of checks thathave not yet become stale. If either situation is the case, as Court Evaluator, you have theauthority to deposit the cash or checks in the AIP’s existing accounts or an attorney’s escrowaccount if the AIP does not have an account. Mental Hyg. 81.09(e).

17. In the Matter of the Application of Rochester General Hospital for the Appointment of aGuardian for Albert Levin, 158 Misc.2d 522, 601 N.Y.S.2d 375 (Sup. Ct., Monroe Co. 1993),certainly will not be the last of the cases to come to our attention where the attorney-in-factused the powers granted by the AIP to steal from the AIP or failed to exercise the authoritygranted in a health care proxy.

18. In certain circumstances, advising counsel for the petitioner may be of no avail if counselfor the petitioner was selected by, or is counsel for, the very person who is the AIP's attorney-in-fact.

19. If the proposed guardian is a spouse who has executed a pre-nuptial agreement, there maybe a conflict of interest, and the Court Evaluator should advise the court. See, Matter of

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Zarriello, N.Y. L.J., Jan. 25, 1995, at 32, col. 5 (Sup. Ct., Rockland Co.), where Justice Weinerheld that although there may indeed be a conflict of interest between the wife and the adultchildren of the incapacitated person by reason of the existence of a pre-nuptial agreement thatprovided which assets each would receive upon the death of the other spouse, the wife wasthe most appropriate person to serve as guardian of the property of the incapacitated person.However, the Court directed the wife to apportion between assets allocated to the wife andthose assets intended to be distributed to the children any assets she used for the support ofthe incapacitated person. The Court stated that it was clear that the incapacitated personmanifested an intent that his three adult children receive upon his death all of his assets notallocated in the pre-nuptial agreement.

20. Sureties have a bias against bonding family members. Keeping this in mind, the CourtEvaluator should ask personal questions of the family member or friend, which should includeemployment history, income history, whether the individual has ever declared bankruptcy,and the relation of the individual’s liabilities to assets. Positive responses will not insureissuance of a bond, given the bias of most sureties.

21. For example, the AIP's will should be sealed unless the AIP has waived disclosure.Unless the AIP has disclosed the contents of her will or waived disclosure, it remains aprivileged document and should be stricken from a petition if annexed. It may be appropriatefor the court to review the will in camera. It sometimes is appropriate for the court to sealcertain medical and psychiatric records.

22. Leona Beane, Esq. was the Court Evaluator in this proceeding.

23. In Matter of Tait, N.Y. L.J., May 31, 1994, at 28, col. 1 (Sup. Ct., NY Co.), based uponclear and convincing evidence, Justice Solomon found that Ms. Tait, whom Justice Solomondescribed as "an undoubtedly mentally ill woman" was not incapacitated and in need of aguardian despite the facts: (1) her physical hygiene was poor; (2) her domestic housekeepingnil; (3) she collected and stored trash in her SRO room; (4) she spent much of her time on thestreet or in a neighborhood McDonald's, dressed in layered and eccentric garb; (5) she refusedassistance from several agencies; and (6) she declined an inheritance believed to beapproximately ten thousand dollars ($10,000.00). The evidence presented at the hearing didnot support a finding that Ms. Tait was likely to suffer harm as a result of her mental illness oreccentricities. The case is significant because it makes clear that having a mental illness doesnot necessarily mean that an individual is an incapacitated person, as defined under Article81.

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In Matter of Pollack, N.Y. L.J., Sept. 27, 1996, at 31, col. 1 (Sup. Ct., Nassau Co.), theCourt found that Mr. Pollack was not an incapacitated person, notwithstanding that Mr.Pollack was indicted for second degree attempted murder and assault for having stabbed hiswife several times and his plea of insanity was accepted. In the criminal proceeding, the Courtfound that Mr. Pollack suffered from a dangerous mental disorder and Mr. Pollack wascommitted to a psychiatric institution for six months. The Article 81 Court found thatalthough Mr. Pollack’s conduct was reprehensible and he was found in the criminal courtproceeding to suffer from a dangerous mental disorder, Mr. Pollack was capable of managinghis personal and financial affairs and he did not require a guardian of the person or property.The Court stated:

In our view, petitioner was of the belief that a finding of "mentaldefect" by another Court would suffice to demonstrate"incapacity" and, as indicated, that is generally not the case. Insum, we find that on the evidence presented in this article 81proceeding, the statutory requirements for the appointment of aguardian were not adequately established.

1

Alfreida B. Kenny, Esq.11 Park Place, 10 Fl.th

New York, New York 10007(212( 809-27000

CONSIDERATIONS FOR THE COURT EVALUATOR IN AN ARTICLE 81GUARDIANSHIP PROCEEDING.

November 30, 2010

I. APPOINTMENT OF COURT EVALUATOR

� The role of the court evaluator is to investigate the facts, report the facts to theCourt, and make recommendations to the Court. Mental Hyg. § 81.09.

� Immediately advise the court if the AIP wishes counsel to be appointed. Mental Hyg. 81.09(c) (3).

� Counsel is required in any of the following events:� The AIP requests counsel. Mental Hyg. § 81.10(c)(1);

� The AIP wishes to contest the proceeding. Mental Hyg. §81.10(c)(2);

� The AIP does not consent to the powers being requested. Mental Hyg. § 81.10(c)(3);

� Petition alleges that major medical or dental treatment isrequired, and the AIP does not consent;

� The petition requests temporary powers under Mental Hyg.§ 81.23 (appointment of a temporary guardian or injunctionand temporary restraining order) (Courts have notappointed temporary guardians when there is a restrainingorder restraining the landlord from proceeding witheviction proceedings, because it is a different type ofrestraint than that contemplated by Mental Hyg. § 81.23(b).

� There may be a conflict between the role of the court

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evaluator and the advocacy needs of the AIP.

� If the court evaluator learns of facts early in the process that adverselywould affect the rights of the AIP, it is incumbent upon the court evaluatorto advise the Court.

� The court evaluator should ascertain whether any litigation or proceedingsare pending that affect the AIP, and, in particular, whether there is alandlord/tenant proceeding pending against the AIP. If there is alandlord/tenant proceeding pending against the AIP, the court evaluatorimmediately should advise the Court and, if counsel has not beenappointed for the AIP, request the Court to grant a temporary restrainingorder, temporarily restraining the Housing Court and the landlord fromcontinuing with the Housing Court proceeding for a period of time not toexceed sixty (60) days after the date of the issuance of a commission to theguardian of the property.

� The court evaluator should advise the court early in the proceeding if thepetitioner has not properly served the AIP and all those whom the Order toShow Cause requires to be served with the notice. The Court will havejurisdiction if the other parties are not timely and properly served. However, the Court will not have jurisdiction if the AIP is not timely andproperly served. Mental Hyg. §§ 81.07(d)(1)(i) and 81.42(a).

� If there is a mistake in the Order to Show Cause with respect to service,the court evaluator should immediately advise the Court. If a sibling ismentioned in the petition, but the sibling has not been served because theorder to show cause did not direct service, the court evaluator shouldadvise the Court that the sibling should have been included on the servicelist and request the petitioner to serve the sibling. If the AIP resides in afacility as defined in Mental Hyg. § 81.07(d)(1)(ix), then the chiefadministrator of the facility and Mental Hygiene Legal Service are to beserved. Same for parents.

� The court evaluator has the authority to take necessary steps topreserve property of the AIP pending the hearing. Mental Hyg. §81.09 (e).

� If the Court Evaluator learns that there is financial abuse occurring, theCourt Evaluator immediately should advise the Court. In appropriatecircumstances, the Court Evaluator should obtain an order from the Courtrestraining access to bank accounts by those individuals believed to beengaged in financial abuse of the AIP.

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� It may be necessary for the Court Evaluator or the Court to issue asubpoena to obtain bank statements, deposit items, and withdrawal items.

� It may be necessary for the Court Evaluator to arrange for home care whilethe proceeding is pending. In one instance, the home care attendants wereabout to walk off of the job because they had not been paid in months. The Court granted an order permitting the Court Evaluator to withdraw bybank check a certain sum of money estimated to cover payment of thehome care attendants, medical insurance and utilities to permit the AIP toremain in her apartment during the pendency of the proceeding.

� If the court evaluator exercises authority under Mental Hyg. § 81.09(e), thecourt evaluator must include in the report of the court evaluator the actionsthat the court evaluator has taken in the exercise of the authority.

� If a treating physician’s affidavit is annexed to the papers, it should bestricken. (See ABK article on physician-patient privilege.). . If a treatingphysician’s affidavit is attached, the Court Evaluator should advise theCourt in the Report that the AIP’s right to physician patient-privilege hasbeen violated. In Matter of Higgins (England), N.Y. L.J., Oct. 6, 1995, at27, col. 2 (Sup. Ct., NY Co.), Justice Ramos granted the motion of thecourt evaluator to strike the medical affidavit. Matter of Higgins also isimportant for understanding the role of the court evaluator. Petitioner’scounsel objected to the court evaluator challenging petitioner’s annexationof the medical affidavit to the petition. Justice Ramos held that the courtevaluator had standing to challenge petitioner’s use of the medicalaffidavit and by challenging petitioner’s use of the treating physician’smedical affidavit, the court evaluator was fulfilling his statutory duty as anindependent investigator. Matter of Higgins makes clear that the courtevaluator has standing and a duty to direct the Court’s attention toviolations of law and any perceived infringements of the rights andstatutory privileges of the AIP.

� The Court is prohibited from requiring a physician’s affidavit or any othermedical information in support of the petition. Mental Hyg. Law §81.07(b)(4) expressly states “the court shall not require that supportingpapers contain medical information”.

� Ethical Issues - Best Interest of AIP vs. Advocacy on Behalf of AIP

� If a party is represented by counsel, the court evaluator should obtainconsent of counsel to interview the party.

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� It is not the role of the court evaluator to advocate for the AIP. It is therole of the court evaluator to advise the Court of the AIP’s wishes. It alsois the role of the court evaluator to advise the Court of the courtevaluator’s recommendations, which presumably are in the best interest ofthe AIP. For example, the AIP may state that she does not need aguardian and that she is perfectly capable of handling her own financialaffairs, and giving her money away to whomever she desires. It is the responsibility of the court evaluator to report to the Court that the AIP stated that she is capable of handling her affairs and giving her moneyto whomever she desires. It also is the responsibility of the court evaluatorto advise the Court that if the AIP continues to give her money away at therate that she is, there will be insufficient funds for the AIP to maintain herlifestyle and pay for essentials for the estimated time of her life.

It also is the responsibility of the court evaluator to advise the Court whether such gift-giving, in the opinion of the court evaluator, is a resultof undue influence by a family member or health care aide.

� The advocacy line: If the Court Evaluator has information whichsuggests that an individual is lying, the court evaluator shouldbring this to the attention of the Court in the report of the courtevaluator, as well as during cross-examination of the witnesses.

� Recommending in the report of court evaluator that the orderappointing guardian include certain decretal paragraphs, arguably,is advocating. For example, recommending that the orderappointing guardian direct the guardian to investigate alleged theftsand commence the appropriate legal action to recover property maybe considered acting in the best interest of the AIP, and, undercircumstances, may be considered advocacy.

� Best Interest/Advocacy/Ethical Issues Combined

� The 84-year old AIP knows that her longtime companionhas been stealing her money. She will permit this tocontinue because she knows that if he does not have accessto her money, he will not visit her. She tells the courtevaluator that she knows that her longtime companion isstealing her money and insists that if she must have aguardian that the guardian be her longtime companion.

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� In the best interest of the AIP, the companion should not bethe guardian but should be exposed for the thief that he is.

� It is incumbent upon the court evaluator to report to thecourt the wishes of the AIP and that the AIP knows that hercompanion is stealing the money. It is incumbent upon thecourt evaluator to expose the companion. (On the otherhand, the AIP’s counsel, if there is one, would advocate thewishes of the AIP.).

� Access to Medical, psychological and/or psychiatric records. (Issues ofconsent/privilege/court ordered and compliance with HIPAA.

� Mental Hyg. § 81.09(d) requires the court evaluator to apply to the Courtfor permission to inspect records of medical, psychological and/orpsychiatric examinations of the AIP, except as otherwise provided by stateor federal law.

� If the Court determines that the information contained in the medicalrecords will assist the court evaluator in completing her report, then theCourt may order disclosure.

� The essential words here are that the court evaluator must apply to theCourt. The application of the court evaluator will provide the AIP withthe opportunity to object to the court evaluator having access to suchmedical or psychiatric information.

� Mental Hyg. § 81.09(d) does not require that the AIP be givennotice of the court evaluator’s application to the Court seekingpermission to inspect the AIP’s medical records. It would seemthat if the AIP is not given notice that the AIP’s medical recordsmay be inspected, the protections of Mental Hyg. § 81.09(d) areillusory, at best, and, at worst, fail to provide a procedure by whichthe AIP can be heard to object, thereby diluting the AIP’s rights ofdue process.

� It is not consistent with the intent, spirit or the language of the statute toinclude in the Order to Show Cause the authority for the court evaluator toreview medical or psychiatric records.

� If the language is included in the Order to Show Cause, it is a faitaccomplis. The statute requires that the court evaluator make theapplication, not the petitioner. Moreover, at the petition stage, theCourt probably does not have sufficient information to determine

6

whether the information would assist the court evaluator.

� If the language is included in the Order to Show Cause, by the timethe AIP objects to such access to medical or psychiatricinformation, it is likely that the court evaluator would havereviewed the medical and psychiatric records.

� Any language that is included in the petition that authorizes the courtevaluator to review medical or psychiatric records is in violation of MentalHyg. § 81.09(d) and should be stricken from the Order to show Cause. Such language also violates HIPAA.

� HIPAA “Standards for Privacy of Individually Identifiable HealthInformation”, 45 CFR Parts 160 and 164)

� Presumably, with the enactment of HIPAA, there are fewerviolations of Mental Hyg. § 81.09.

� HIPAA covers oral, as well as written, identifiable healthinformation recorded in any form that relates to past, present orfuture physical or mental health or condition of an individual(“Protected Health Information”). 45 CFR §§ 160.102, 164.501.

� Disclosure of Protected Health Information may be made to:

� The individual, 45 CFR § 164.524(a)(1) (psychotherapynotes are excluded from disclosure), 45 CFR § 164.508(a).

� An individual, who under applicable law, has the authorityto act on behalf of the subject individual who is an adult oremancipated minor in making decisions relating to healthcare (health care agent named in health care proxy,guardian who has such authority granted in an order. 45CFR 164.502(g)(2).

� Personal representative of the individual, 45 CFR §164.502 (g)(3).

� Parent of unemancipated minor, 45 CFR § 164.502 (g)(3).

� Personal representative = Executor or administrator ofestate who has authority act on behalf of the deceasedindividual or deceased individual’s estate. 45 CFR §

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164.502 (g)(4).

� Judicial proceedings, 45 CFR § 164.512(e)

� Court order

� Subpoena, discovery requests, or other lawfulprocess that is not accompanied by a court order;there must be assurance to the covered entity thatreasonable attempts were made to give notice to theperson covered by the request.

� The order appointing the guardian should be drafted to grant guardian authority toobtain protected health information. “All health plans, healthcare clearing housesand health care providers which receive a request for disclosure of any healthinformation concerning the AIP from any guardian appointed by this Court aredirected to disclose such information to said Guardian.”

� No disclosure to court evaluator or anyone whom subject of disclosure hasnot authorized or if there is no Court order of the following information:

� treatment, 45 CFR § 164.502 � payment, 45 CFR § 164.502 � discharge planning, 45 CFR § 164.502

� Under HIPAA, it does not appear that the court evaluator would be entitled toobtain information relating to the subject of disclosure if there is not a specificCourt order. That Court order, of course, must be consistent with Mental Hyg. §81.09(d).

Appointment of a Guardian ad Litem.

� A guardian ad litem should be appointed when the person is comatose orotherwise not able to communicate her wishes. If the person is comatose,counsel is not appropriate, in my opinion, because the person cannot directcounsel, or express her wishes so that counsel may advocate for her.

� Although a court evaluator can report to the Court, the court evaluatorcannot discern whether the comatose AIP would want counsel, wouldwant to object to the powers or the guardianship.

� The best protection for the due process rights of the AIP in the foregoing

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situation would be the appointment of a guardian ad litem. The guardianad litem is not only responsible for reporting to the Court (a responsibilityof the Court Evaluator), but also is appointed to protect the due processrights of the AIP. Unlike the guardian ad litem, counsel is to do more thanprotect the due process rights of the AIP. Counsel is to advocate.

� The appointment of a guardian ad litem may be appropriate if there is aquestion regarding whether an AIP, who is the petitioner, knowinglypetitioned the Court to have a guardian appointed when the AIP hashis/her own counsel. Matter of Maier, N.Y. L.J., Feb. 6, 1998, p 28, col. 1(Sup. Ct., Bronx County, Wilkins, J.). In Maier, the Court appointed aguardian ad litem because the Court determined that there was a problemof “transient incompetence” and the Court could not be certain that theAIP knowingly petitioned the Court. It was apparent at the hearing,several months later, that the AIP did not understand the guardianshipproceeding or the role of the guardian. In fact, at the hearing the AIP saidthat he did not want a guardian to have some of the powers set forth in thepetition.

� Miscellaneous

� If the Petition requests that the guardian have authority to consent to theadministering psychotropic drugs, request the Court to incorporate into theArticle 81 proceeding a Rivers v. Katz hearing. The guardian should notbe permitted to consent to the administering of psychotropic drugs for anindefinite period of time. There should be a limit on the guardian’sauthority and the guardian should be required to return to Court for afurther order if the guardian believes that psychotropic drugs should againbe administered. When the guardian returns to Court for a subsequenthearing, a Rivers v. Katz hearing should be conducted again to determinewhether the guardian should have the authority to consent to the furtheradministering of psychotropic drugs.

� If the evidence is that the person will need the particular or specific drugfor a lifetime, the Court must determine whether to give such authority tothe guardian to consent to the specific drug for a lifetime.

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� Ask the Court whether the Court permits the court evaluator to cross-examine witnesses.

� If the court evaluator does not testify, request the Court to admit the reportinto evidence the court evaluator’s report.

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ALFREIDA B. KENNY, ESQ. Principal

Law Offices of Alfreida B. Kenny

Alfreida B. Kenny, Esq. is a graduate of Columbia University School of Law, class of 1975. She has extensive experience in fiduciary matters, including guardianships, conservatorships, and receiverships. Ms. Kenny has been appointed and served frequently as guardian ad litem, representing infants and unknown distributees before the Surrogate’s Court of the State of New York in probate and accounting proceedings. She has been appointed by the Supreme Court of the State of New York to serve as trustee of supplemental needs trusts and continues to serve as trustee of supplemental needs trusts. Ms. Kenny has been appointed and served as guardian ad litem for incompetents in the United States District Court for the Eastern District of New York and the United States District Court for the Southern District of New York. She has been appointed and served as conservator, court evaluator, counsel to alleged incapacitated persons, and guardian of the person and/or property in Article 81 proceedings before the Supreme Court of the State of New York for the Counties of New York and Bronx. She represents petitioners in Article 81 proceedings, those raising objections in Article 81 proceedings, and guardians appointed pursuant to Article 81 of the Mental Hygiene Law. Ms. Kenny is a frequent lecturer for bar associations and other continuing legal education programs on issues pertaining to adult guardianships. She has participated as a faculty member for training programs and seminars on conservatorships under the repealed Article 77 of the Mental Hygiene Law and adult guardianships under Article 81 of the Mental Hygiene Law, approved by the Office of Court Administration, in accordance with Mental Hygiene Law §§ 81.39 and 81.40, offered by various bar associations and organizations, including the New York County Lawyers’ Association, the Bronx Bar Association, The New York City Bar, and Practising Law Institute. She has participated in panel discussions regarding physician-patient privilege, offered by the Elder Law Section of the New York State Bar Association, and practical issues confronting lawyers in Article 81 proceedings, offered by the Women’s Bar Association of the State of New York. Ms. Kenny is a member of the panel of mediators in the United States District Court for the Southern District of New York and has mediated cases in the United States District Court for the Southern District of New York, as well as commercial cases in the Commercial Division of the Supreme Court of the State of New York, County of New York. As a result of her training and experiences in mediation and adult guardianships, Ms. Kenny has concluded that mediation is an appropriate vehicle to resolve many disputes that arise in adult guardianship proceedings. She has expanded her law practice to include mediation of disputes that arise prior to the commencement of guardianship proceedings and during the pendency of guardianship proceedings. Ms. Kenny is active in bar association activities. She served as a member of the Committee on Trusts, Estates and Surrogate’s Courts of the New York City Bar. She also served as a member of the New York County Lawyers’ Association’s Estates, Trusts and Surrogate’s Court Practice Section and as Co-Chair of the Trusts and Estates Legislation and Governmental Affairs Committee of the New York County Lawyers’ Association. She currently is a member of the Executive Committee of the Elder Law Section of the New York State Bar Association.

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Alfreida B. Kenny, Esq.11 Park Place, 10 Floorth

New York, New York 10007(212) 809-2700© December 1, 2009

GUARDIAN OF THE PERSON

I. ESSENTIAL CONCEPTS THAT WILL ASSIST YOU IN CARRYING OUT YOURDUTIES AS GUARDIAN OF THE PERSON OF AN INCAPACITATED PERSON.

1. Know and understand the contents of the Order appointing you asguardian of the person.

2. Read the reports of the Court Evaluator submitted in theguardianship proceeding. Pay particular attention to therecommendations that the Court Evaluator makes. Read andunderstand the discharge plan.

3. Know what the law states are the duties of a guardian of theperson.

4. Know what the law states are the powers of a guardian of theperson.

5. Always keep in mind that as the guardian of the person, you are toexercise your duties in a manner that is the least restrictive form ofintervention possible in order to give the incapacitated person asmuch say-so, freedom, and independence as possible. Alwayskeep in mind when carrying out your duties that you are to:

(1) Take into account the wishes, preferences, anddesires of the incapacitated person.

(2) Afford the incapacitated person the greatest degreeof independence, freedom, self determination andparticipation in making decisions that will affect theincapacitated person's life. Ment. Hyg. L. § 81.01.

(3) Obtain professional assistance (geriatric manager,

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psychologist, therapists, and geriatric physician).

II. Duties of Guardian of the Person, Ment. Hyg. L § 81.20

1. Exercise only those powers set forth in the order of appointment orsuch order, as amended.

2. Exercise the utmost care and diligence when performing yourduties and tasks as guardian of the person.

3. Exhibit the utmost degree of trust, loyalty, and fidelity to theincapacitated person and in connection with performing your dutiesas guardian of the person.

4. File initial and annual reports.

5. Afford the incapacitated person the greatest amount ofindependence and self-determination with respect to personalneeds in light of that person's functional level, understanding andappreciation of that person's functional limitations, and personalwishes, preferences and desires with regard to managing theactivities of daily living.

6. Visit the incapacitated person at least four (4) times per year. Make detailed notes of what you observe, what you should follow-up on, and any discussions that you have with the home healthcare attendants.

III. Powers of Guardian of the Person, Ment. Hyg. L. § 81.22

1. Determine who should provide care and assistance to theincapacitated person.

2. Make decisions regarding the social environment and other socialaspects of the incapacitated person’s life.

3. Determine whether the incapacitated person will travel anddetermine the travel plans of the incapacitated person.

4. Determine whether the incapacitated person should continue todrive and possess a driver’s license.

5. Authorize access to, and release of, confidential, medical and

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health information.

6. Make decisions regarding education.

7. Apply for government and other benefits.

8. Consent to and refuse generally accepted, routine or major medicaland dental treatment in accordance with the wishes of theincapacitated person, the order appointing the guardian of theperson, the best interests of the incapacitated person, the dignityand uniqueness of the incapacitate person, the preservation of theperson’s life, restoration of health, relief of suffering, and subject toMental Hyg. Law § 81.29 (e).

a. If the incapacitated person has a living will, the guardian ofthe person must adhere to the provisions of the living will,provided that the Court has not ruled that the living will wasexecuted by the incapacitated person when theincapacitated person did not have capacity or the Court hasnot otherwise vacated the living will. The living will is anexpression of the wishes of the incapacitated person.

b. If the incapacitated has a health care proxy that remains ineffect, health care decisions must be made by the healthcare agent.

9. Choose the place of abode.

a. If the guardian of the person wishes to remove theincapacitated person to another state, the guardian of theperson must make an application to the Court and obtain anorder from the Court authorizing the guardian of the personto remove the incapacitated person to another state.

b. Choosing the place of abode does not include placing theincapacitated person in a nursing home.

c. If there is no order permitting the guardian of the person toplace the incapacitated person in a nursing home, theguardian of the person must make an application to theCourt, requesting the Court to authorize the guardian of theperson to place the incapacitated person in a nursing home.

d. The guardian of the person does not have the authority toplace an incapacitated person in a mental facility or a

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chemical dependence facility (detox) for examination ortreatment. (See Article 9 of the Mental Hygiene Law.)

e. In order to place an incapacitated person in a mental facilityor a chemical dependence facility (detox), the guardian ofthe person must make an application to the Court. TheCourt must conduct a Rivers v. Katz hearing to arrive at itsdetermination.

10. A guardian of the person does not have the authority to consent towithholding or withdrawal of life sustaining treatment, includingartificial nutrition and hydration.

a. If the wishes of the incapacitated person are not expressedin a living will or health care proxy, the guardian of personmust make an application to the Court to determine whetherthe guardian of the person has the authority to makedecisions to consent to withholding or withdrawal of lifesustaining treatment. The guardian of the person does nothave the authority to consent to a do not resuscitate orderunless such authority is specifically granted in an order ofthe Court.

b. The statute specifically states that the Court has the powerto grant authority to make decisions regarding life sustainingtreatment for the incapacitated person.

c. The guardian of the person also does not have the authorityto consent to providing life sustaining treatment without anorder of the Court. Therefore, the guardian of the persondoes not have the authority to consent to the administrationof a tube for hydration or feeding.

11. A guardian of the person does not have the authority to vacate,void, or otherwise disregard a health care proxy, living will, orpower of attorney. Only the Court has the authority to vacate ahealth care proxy, living will, or power of attorney.

IV. Provide the Best Quality of Life:

A. Have the appropriate medical person to evaluate the incapacitatedperson.

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B. Develop a plan with the assistance of a geriatric manager, medicalprofessionals, or psychiatric professionals.

C. Supervise the health care professionals that you have hired. Request andobtain written reports from the geriatric manager. Request oral reports ona weekly or bi-weekly basis from home health care attendants.

D. Develop a plan whereby the home health care attendants are providingstandardized written reports daily. A visiting nurse or geriatric managerwill assist you in creating the appropriate document to be completed dailyby each shift of home health care attendants.

E. If the incapacitated person is in the hospital or nursing home facility, talkto physicians to ascertain the prognosis in addition to the diagnosis.

F. Talk to social workers to ascertain what types of therapy the incapacitatedperson should be receiving in the nursing home or at home.

G. Do not be afraid to get a second opinion -- an opinion outside of theinstitutional setting. For example, bring in your own geriatric physician,your geriatric nurse or geriatric manager for a consultation to advise you.

H. Attend planned care meetings and ask plenty of questions. Understandthe therapy. Many nursing homes cease to give therapy after a while. Bealert to this occurrence and question it. Insist upon continuation oftherapy.

I. Consider carefully the type of assistance the person will need. Forexample, what type of visiting nurse, how frequently the visiting nurseshould visit.

(1) Geriatric nurse(2) Therapists(3) Type of home health care attendants, use an agency.

J. If the incapacitated person refuses therapy, you cannot force it upon her. However, there may be other beneficial things that you can do.

1. Consider retaining occupational therapists, physical therapists,music therapists and other types of therapists.

2. Consider asking church members or members of the synagogue tovisit the incapacitated person on a regular basis.

3. Hire high school students to read to the incapacitated person or to

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serve as a companion to the incapacitated person.

4. Hire companions to spend time with the incapacitated person, takethe incapacitated person to museums, the theater, the opera, nightclubs, and other entertainment events.

K. Be very alert to the medication that is prescribed and administered. Ask the physician to explain the reason for each medication that not onlyis prescribed but that is administered.

1. In some institutions, it appears that drugs such as Haldol andActivan are prescribed without thought. These drugs make theperson lethargic and the person will appear to be out of it ordepressed after taking these drugs. These drugs are sometimesadministered to keep the patient quiet, so that the patient will notbe any trouble to the staff. The buzz words are it was prescribedbecause the patient was “agitated”, “ not “compliant”. Not allagitation requires medication. If you hear these buzz words,diligently question the physician. If the physician persists thatthese drugs are needed, this is another instance when you maywant a second opinion.

2. Make sure that you understand the explanations that are beinggiven to you. The law requires you to file a ninety-day report andan annual report. The annual report is to set forth, among otherthings, (1) the nature and type of care the incapacitated person isreceiving, including medications; (2) how long it is expected thatthe person will receive the type of care and medication; (3) theactivities of daily living that the person is performing; (4) type andnature of therapy that the person is receiving, how long it isexpected the person will receive it and why the person is receivingthe particular therapy; the entertainment activities that the personparticipates in.

3. Physicians, psychologists, nurse clinicians, social workers, andothers that have evaluated or examined the incapacitated personare required to give a written statement that is to be included in theannual report. Ment. Hyg. L. § 81.31.

4. Statements by physicians, psychologists, nurse clinicians, socialworkers, and others that have evaluated or examined theincapacitated person are to be dated within three (3) months priorto filing the annual report.

5. If there are any circumstances that you have encountered that

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cause you to believe that the order should be modified to grant toyou, as guardian of the person, additional powers, include in theannual report, what modification to the order you will seek and why. Mental Hyg. Law § 81.31 (e). If you include in the annual reportmodifications that you believe should be made to the order, MentalHyg. Law § 81.31 (e) requires within ten (10) days of the filing ofthe annual report, on notice to those entitled to notice, that theguardian make an application to the Court requesting the Court tomodify the order to include those additional and/or expandedpowers set forth in the annual report.

V. The Annual Report

1. Ment. Hyg. L. § 81.31 requires you to set forth:

a. major changes in physical and mental condition of theincapacitated person;

b. date on which the incapacitated person was last examinedby physician;

c. statement regarding your required 4 visits a year;

d. whether the current residential setting continues to besuitable and appropriate to address the needs of theincapacitated person;

e. resumé of medical treatment being administered toincapacitated person;

f. future plans for medical and dental treatment;

g. statement concerning social environment and condition ofincapacitated person; and

h. statement by physicians, psychologist, nurse clinician, orsocial worker, or other person that has evaluated orexamined the incapacitated person within the three monthsprior to the filing of the report regarding an evaluation of theincapacitated person's condition and the current functionallevel of the incapacitated person.

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VI. Confidential Records.

A. You have the right to disclose medical and confidential records. However,you do not have the right to disclose HIV records. Be careful of whypeople are asking you to disclose.

VII. Major Medical Treatment. Ment. Hyg. L. § 81.03(i)

A. Authority to consent to or refuse Major Medical Treatment in accordancewith the patient's wishes. This means that if the incapacitated persondoes not consent, you cannot violate the civil rights of the incapacitatedperson by forcing treatment upon that person against his/her consent. Ment. Hyg. L. § 81.22(a).

1. Major medical treatment includes medical, surgical or diagnosticintervention or procedure where a general anesthetic is used, orwhich involves any significant risk or any significant invasion ofbodily integrity or treatment which involves the administration ofpsychotropic medication or electroconvulsive therapy. Mental Hyg.Law § 81.03 (i).

2. Even if the order gives to the guardian of the person the authorityto make major medical decisions for the person, if those decisionsare against the wishes of the incapacitated person or if theincapacitated person refuses treatment, the guardian of the person cannot force the incapacitated to receive treatment against her/hiswill unless a Court order is obtained authorizing such treatmentagainst that person's will.

3. Mental Hygiene Law specifically states that no guardian has theright to involuntary admit an incapacitated person to a mentalhygiene facility or to an alcoholic facility. Ment. Hyg. L. §81.22(b)(1).

4. A guardian of the person does not have the legal authority toinvoluntary confine or hospitalize a mentally incapacitated person ina psychiatric facility or drug or alcohol abuse treatment facilityunless there is an order that specifically authorizes involuntaryconfinement or hospitalization of the incapacitated person. Mostorders appointing a guardian of the person will not grant suchauthority. More than likely, the guardian of the person will have toseek another court order. That process will involve explaining thecircumstances to the Court, why involuntary confinement or

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hospitalization in a psychiatric facility or drug or alcohol abusetreatment facility is necessary. In addition, the Court must begoverned by Article 9 of the Mental Hygiene Law for such requests,not Article 81 of the Mental Hygiene Law.

B. Life Sustaining Treatment

1. Unless the order appointing the guardian of the person specificallystates that the guardian of the person has the power to makedecisions regarding life sustaining treatment, the guardian of theperson does not have any such authority. An individual, however,may have such authority under the Public Health Law, as a parent,spouse, or health care agent. (Remember unless the Court hasvoided a health care proxy, the health care proxy remains in effecteven after the appointment of a guardian of the person.)

2. Prior to the Court including in an order any such authority to makelife-sustaining treatment decisions, the Court must make a finding,based upon clear and convincing evidence, that the incapacitatedperson would want the withholding of life sustaining treatment. Therefore, documentary evidence in which the incapacitatedperson has expressed his/her wishes (Living Will, Health CareProxy), must be presented to the Court or testimony from othersthat the incapacitated person specifically told that person thathe/she did want to be resuscitated, have heroic measures taken tokeep/him or her alive, or tube feeding.

3. This finding, based upon clear and convincing evidence, must bemade on the record.

C. If you have been designated as the health care agent in a Health CareProxy, you may have the authority to consent to the giving or withholdingof life sustaining treatment. Remember, you have this authority as aHealth Care Agent, not as the guardian of the person. See, Pub. HealthL. § 2965 and § 2977.

D. If you are a family member, you may have the authority as a familymember, not as the guardian of the person, to consent to giving orwithholding life sustaining treatment.

E. Non-Hospital Do Not Resuscitate Orders.

1. May be issued during hospitalization for use after discharge.

2. May be issued while at home, by treating physician.

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a. Non-hospital DNR order continues even after hospitalizationuntil attending physician in emergency treatment roomcancels order or continues order.

F. Hospital Do Not Resuscitate Orders. The guardian of the person does nothave the authority to sign a do not resuscitate order.

VIII. Community Resources:

A. Use Community Resources.

B. If you don't know, call upon a specialist in the area to learn what isavailable. For example, universities, medical schools, AARP, seniorcitizen centers, agencies for the disabled (City and State), and theAlzheimer’s Foundation.

C. Consult with geriatric nurses, geriatric physicians.

D. Don't try to do everything yourself, seek help.

1. If the person is elderly, have that person assessed by a geriatricspecialist to ascertain what that the incapacitated person needsmedically and what type of therapy would improve the quality ofthat person's life.

a. For example, occupational therapy, physical therapy.

b. Take the person out as frequently as possible toentertainment events. Senile dementia does not mean thatthe person does not continue to enjoy entertainment.

c. If the incapacitated person is an elderly person, play musicat home that that person likes, e.g. music from the era whenthe person was 18-30 years old; gospel music or whatevertype of music the person likes.

d. Stimulation is key, for senile dementia and Alzheimer's.

IX. Cases of Interests.

1. In Matter of Farbstein, 163 Misc.2d 26, 619 N.Y.S.2d 239 (NY Co.,

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1994), an 88- year old woman, who suffered from senile dementiarefused the assistance of home health care attendants (pushedthem aside, bit them, and was highly agitated). The guardian of theperson had a psychiatrist at Beth Israel to examine Ms. Farbstein,and the psychiatrist concluded that the guardian of the person mustbring Ms. Farbstein to the emergency room to be admitted forevaluation. Ms. Farbstein refused to go. The guardian of theperson called the police. The police would not assist because, asthey stated, Ms. Farbstein had the right to refuse evaluation andtreatment without a court order specifically authorizing the guardianof the person to involuntarily hospitalize the incapacitated person. The guardian of the person had no right to force treatment uponMs. Farbstein. Judge Saxe refused the guardian of the person’srequest for an order to direct the police department to assist intransporting Ms. Farbstein to the hospital.

2. Matter of Barsky (Kyle), N.Y. L.J., June 6, 1995 at 35 col. 2, (Sup.Ct. Suffolk County, Luciano, J.). Judge Luciano denied theguardian's request to withhold life sustaining treatment ofincapacitated person. There was no clear and convincing evidencethat the incapacitated person had ever expressed her wishes toanyone regarding whether she wanted or did not want lifesustaining treatment. Ms. Kyle had a heart attack and stroke. Shecould not swallow or ingest food. It was necessary to feed her byinsertion of a nutrition and hydration tube. When the guardian ofthe person met Ms. Kyle, she could not talk. However, theguardian argued to the Court that based upon all that he hadlearned about Ms. Kyle after his appointment, he was certain thatshe would not want to live with a feeding tube or hydration tube.

3. In Matter of Joan Gordon, N.Y. L.J., Nov. 22, 1994, at 25, col. 5, (Sup. Ct. Rockland Co.), the husband who sought to be appointedguardian of the person requested that he be given the authority tocompel the AIP to receive psychiatric treatment and theadministration of antipsychotic drugs without the AIP's consent.The Court denied his petition because the only reason he sought tobecome wife's guardian was so that he would have the authority tocompel his wife to receive psychiatric treatment. The Court quitecorrectly recognized that Article 81 of the Mental Hygiene Law doesnot permit or allow a guardian to force treatment upon anyindividual whether or not the individual has capacity, if thattreatment is against the wishes of the incapacitated person.

4. In re Rhodanna C.B., 36 A.d.3d 106, 823 N.Y.S.2d 497 (2 Dept.nd

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2006). The Second Department held that the lower Court erredwhen it held that the guardian of the person had continuingauthority to consent to administering psychotropic drugs or electroconvulsive therapy. The lower Court violated the due processrights of the incapacitated person. The Second Department heldthat due process requires that the question of capacity beevaluated each time the administration of psychotropic medicationor electroconvulsive therapy is proposed over the patient'sobjection.

5. Matter of Julia C., NY. L.J., March 15, 2004 at 20, col. 3 (Sup. Ct.Nassau County 2004, Asarch, J.). A guardian of the person canchoose the residence of the incapacitated person, provided thatsuch residence is consistent with the needs and wishes of theincapacitated person. Judge Asarch stated that it is preferable tomaintain an incapacitated person in his home.

IN ADDITION TO COMPLYING WITH THE COURT ORDER, IT IS MOSTIMPORTANT THAT THE GUARDIAN OF THE PERSON PROVIDE THE BEST

QUALITY OF LIFE POSSIBLE TO THE INCAPACITATED PERSON .

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The Guardian of the Property will need to review the Order and Judgment from time to1

time to re-familiarize himself or herself with the powers granted to the Guardian of the Property.

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Peachetta S. deFreitas, Esq.Law Office of Alfreida B. Kenny11 Park Place, 10 Floorth

New York, New York 10007(212) 809-2700© March 24, 2010

TIPS ON MARSHALING THE INCAPACITATED PERSON’S BANK ACCOUNTS ANDESTABLISHING AND MAINTAINING THE GUARDIANSHIP BANK ACCOUNTS

After the Order and Judgment appointing the Guardian has been signed and the Guardian

of the Property has qualified (i.e., the Guardian of the Property has filed with the County Clerk

the oath and designation of clerk and the Guardian of the Property’s bond, if a bond is required,

and the County Clerk has issued the Commission to Guardian of the Property), the Guardian of

the Property must turn his/her attention to managing the assets of the Incapacitated Person (the

“IP”). The Guardian of the Property must review carefully the Order and Judgment appointing

the Guardian so that the Guardian of the Property will know the extent of the Guardian of the

Property’s authority with respect to the IP’s assets.1

Preliminary Steps for Locating the IP’s Bank Accounts.

The Guardian of the Property may consult several sources in order to locate the IP’s bank

accounts.

! Review the Petition filed with the Court in the Article 81 guardianship proceeding

and other documents filed in support of the Petition.

! Review the Court Evaluator’s Report(s).

! Review the IP’s mail, including, but not limited to, the IP’s bank statements and

The Guardian of the Property may obtain certified copies of the Commission to2

Guardian of the Property from the Office of the County Clerk of the County in which the Orderand Judgment appointing the guardian was entered. Certified copies cost eight dollars ($8.00)each.

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other financial documents.

! Review tax returns filed by the IP for previous tax years.

! Review 1099s for previous tax years.

After the Guardian of the Property learns where bank accounts of the IP are maintained,

the Guardian of the Property then can contact the banking institutions in which the Guardian of

the Property believes that assets of the IP are maintained.

What Does Marshaling Assets Maintained in Bank Accounts Held in the IP’s Name

Involve?

One of the duties that the Guardian of the Property is charged with is marshaling the

assets of the IP, including bank accounts of the IP. Marshaling the assets of the IP means

collecting the assets of the IP and depositing those assets in accounts established and

maintained for the guardianship.

The Guardian of the Property must contact the bank(s) in which assets of the IP are

known to be maintained or believed to be maintained. The Guardian of the Property should

write a letter addressed to the bank(s) inquiring about the assets maintained in the bank

accounts(s). At a minimum, the Guardian of the Property’s letter to the bank(s) should:

! Enclose a certified copy of the Commission to Guardian of the Property.2

Note: The Order appointing the Guardian states that all persons are

directed and commanded to deliver to the Guardian of the

Property, upon demand and presentation of a certified copy of the

Commission, all property of the IP, of every kind and nature

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which may be in their possession, custody or under their control.

! Request the account titles and account numbers of all accounts maintained in the

name of the IP or for the IP’s benefit, including, but not limited to, joint

accounts and trust accounts.

Note: Even if you believe that you know all of the accounts that the IP

maintained at the bank, you may discover that there were some

accounts about which you did not know.

! Request the balances remaining in all accounts maintained in the name of the IP

or for the IP’s benefit, including, but not limited to, joint accounts and trust

accounts.

! Ask whether there is a safe deposit box maintained in the name of the IP or for

the IP’s benefit.

Note: Many times the Guardian of the Property discovers the existence

of previously unknown safe deposit boxes.

! Request transcripts of bank transactions that occurred from at least six (6) to

twelve (12) months preceding the commencement of the guardianship

proceeding to the present for all accounts maintained in the name of the IP or for

the IP’s benefit.

Note: By obtaining this information the Guardian of the Property can

trace what has happened to the IP’s assets during the time that

the IP is believed to have been incapacitated. Large withdrawals

that occurred while the IP is believed to have been incapacitated

may lead the Guardian of the Property to discover thefts of the

IP’s funds.

! Inquire whether there are any inactive accounts, and request the bank to furnish

the Guardian of the Property with information regarding the inactive accounts,

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including the date on which the bank turned over the assets to the New York

State Office of Unclaimed Funds..

! Inquire about accounts that were closed six (6) to twelve (12) months preceding

the commencement of the guardianship proceeding, and request the bank to

furnish the Guardian of the Property with a transcript of any transactions that

occurred during the twelve (12) months preceding the date of the closing of any

such accounts.

! Ask what documents the bank requires of the Guardian of the Property to permit

the Guardian of the Property to close the IP’s accounts.

Note: Banks generally require the Guardian of the Property to sign

withdrawal slips. Banks sometimes request signature guarantees.

However, it will be difficult to obtain a signature guarantee since

banks provide signature guarantees only with respect to stocks

and bonds. The Guardian of the Property can obtain a letter from

a bank with which the Guardian transacts the Guardian’s

personal business, stating that although the bank guarantees

signatures only with respect to stocks and bonds, the bank knows

that the signature at the bottom of the letter is the Guardian’s

signature. (The Guardian’s bank’s letter would include a space at

the bottom for the Guardian’s signature; the Guardian, of course,

would sign the Guardian’s bank’s letter in the designated space

in the presence of a bank representative.) Banks requesting

signature guarantees from Guardians have accepted such a letter

from the Guardian’s bank.

After the bank provides the Guardian of the Property with the information regarding the

If the Order appointing Guardian does not grant to the Guardian of the Property3

authority to marshal joint accounts and I/T/F accounts, the Guardian of the Property will have tomake an application to the Court for authority to marshal such accounts.

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IP’s accounts and the Guardian of the Property has provided the bank with the documents that

the bank requires from the Guardian of the Property to close the IP’s accounts, the Guardian of

the Property either should instruct the bank to deliver to the Guardian of the Property a bank

check made payable to “_____________, as Guardian of the Property of _________” in the

sum(s) of the balance(s) remaining in the IP’s account(s) or instruct the bank to transfer the

balance(s) remaining in the IP’s account(s) to a new account established for the guardianship.

Note: Do not maintain the guardianship funds in the same account

as the one previously held by the IP. Close the IP’s account,

and open a new account for the guardianship.

Caveat: The Guardian of the Property must consult the Order appointing

Guardian with respect to the Guardian of the Property’s authority

to marshal joint accounts and totten trust accounts (in trust for or

I/T/F accounts). Banks will not release to the Guardian of the

Property the funds that are in joint accounts and I/T/F accounts

without a court order stating that the Guardian of the Property

may marshal such accounts. Even when there is a Court Order3

authorizing the Guardian of the Property to marshal joint

accounts, banks may not release all of the funds in the joint

accounts to the Guardian of the Property. Under New York law,

it is presumed that each joint account holder owns one-half of the

funds in the joint account. Assets held in an account that is a

joint account or an I/T/F account should be used last and in

proportion to assets held in other such accounts. When

6

marshaling I/T/F accounts, deposit the funds into a bank account

maintained in the name of “_________, as Guardian of the

Property of _________, I/T/F _________”.

Establishing Bank Accounts for the Guardianship of the Property.

All guardianship bank accounts should be opened in the name of “__________, as

Guardian of the Property of __________”, or as the Order appointing the Guardian of the

Property otherwise directs.

The Guardian of the Property must open a bank account for the guardianship and must

deposit the IP’s funds into the guardianship account. If the IP has substantial assets, the

Guardian of the Property should deposit a portion of the IP’s assets into at least one savings

account. All bank accounts opened for the guardianship must be opened in the name of the

Guardian of the Property as the Guardian of the Property for the IP.

Some banks have difficulty opening guardianship accounts. Some bank employees will

tell the Guardian of the Property that an incapacitated person is the same as an incompetent

person and that the title of the account must include the word “incompetent”. That information

is erroneous.

The IP’s social security number is the social security number that is to be used in

opening a guardianship bank account. It is the IP’s funds, not the Guardian of the Property’s

funds, and the Guardian of the Property’s social security number should not be used in

connection with the IP’s funds.

Note: Banks will ask the Guardian of the Property to provide the

Guardian of the Property’s social security number and other

personal information. Banks require this information in order to

comply with the United States Patriot Act of 2001. Confirm that

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the bank is requiring this information only for informational

purposes, that the bank will not identify the Guardian of the

Property as the owner of the funds in the guardianship account,

and that the bank will not report interest earned on the

guardianship account under the Guardian of the Property’s social

security number.

The Guardian of the Property must not commingle his or her assets with the IP’s assets.

Note: Do not deposit your funds into the guardianship account. Do not

deposit the IP’s funds into your personal accounts. Deposit the

IP’s funds into guardianship accounts.

The Guardian of the Property must not maintain for the guardianship in any one bank

more than the maximum amount that the Federal Deposit Insurance Corporation (FDIC)

insures.

Note: Prior to the financial crisis in 2008, the Federal Deposit

Insurance Corporation (FDIC) insured only up to one hundred

thousand dollars ($100,000.00) of funds deposited into a bank by

a depositor. In 2008, the FDIC-insured amount was increased to

two hundred fifty thousand dollars ($250,000.00) per depositor;

this increased FDIC-insured amount has been extended until

December 31 , 2013 for most bank deposit accounts; after

December 31, 2013, it is anticipated that the FDIC-insured sum

will be decreased to the original sum of one hundred thousand

dollars ($100,000.00).

8

Maintaining Guardianship Bank Accounts and Retaining Records.

The Guardian of the Property must be vigilant with respect to the IP’s assets and must

maintain good records. The Guardian of the Property, therefore, should:

! Review bank statements promptly. The Guardian of the Property must make

sure that the bank has credited the guardianship account with all deposits made,

that the checks that the Guardian of the Property wrote have been cashed for the

amounts for which the checks were written, and that there have been no

unauthorized debits from the account. If there is any discrepancy, immediately

contact the bank to rectify the discrepancy.

Note: The Guardian of the Property must review bank statements for

the guardianship accounts immediately to insure that the bank

statements do not contain errors. Do not wait for months to

review bank statements for the guardianship accounts. Such

delay could adversely affect the IP’s property.

! Retain records of all transactions with respect to the guardianship accounts. The

Guardian of the Property should make copies of all checks deposited into the

guardianship accounts and all checks written on the guardianship accounts, and

retain those copies. When depositing items into the guardianship accounts, it is

a good practice for the Guardian of the Property to write on the deposit slip the

source of the deposit. For example, if you are making a deposit in October,

2005 of the IP’s social security benefit check for September, 2005, write on the

deposit slip “Sept., 2005 social security”.

! Use checks to transact business on behalf of the IP. If it is necessary to obtain

cash for certain transactions, write a check payable to “________, as Guardian

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of the Property of ___________”, write in the memo section of the check what

the money is for (e.g. “petty cash for laundry”), and cash the check at the bank.

" DO NOT USE AUTOMATIC TELLER MACHINES (ATMs).

! YOU ARE NOT TO USE THE IP’S FUNDS FOR YOUR OWN

PERSONAL TRANSACTIONS.

! Keep financial registers of the checks written on the guardianship accounts, and

deposits into, and withdrawals from, the guardianship accounts. You may use

the registers provided by the bank. You also may use computer software to

record transactions on the account, e.g, Quicken, Quickbooks, or other

accounting computer software.

" If you use computer software, the preparation of your annual accounting

will take less time and will be easier to prepare. If you use an accountant

to prepare your annual accounting, the fee charged by the accountant

likely will be less than it would be if you merely provided to the

accountant handwritten records and deposit slips and withdrawal slips.

Note: With respect to preparation of the Guardian of the

Property’s annual accounting, note that not every deposit into the

guardianship account is income, and not every withdrawal from

the guardianship account is a disbursement.

Example - On October 2, 2005, the Guardian of the

Property withdrew $5,000 from the guardianship account

maintained at Bank A and deposited that sum into a

guardianship account maintained at Bank B. The

withdrawal from Bank A is not a disbursement, and the

deposit into Bank B is not income. The Guardian of the

Property merely has changed the form/location of the

10

asset.

! Review the mail received on behalf of the IP, including, but not limited to, mail

relating to the IP’s assets.

Note: Do not leave the IP’s mail unopened for long periods of time.

Immediately open and review the mail.

! Review mail sent to the IP before the Guardian of the Property was appointed so

that the Guardian will know what has transpired with respect to the IP’s

financial affairs.

! Maintain the guardianship records in an organized fashion. Keep records in

folders or expanding file organizers that are appropriately labeled.

Keep all documents relating to the IP’s finances, including, but not limited to, bank and

other financial statements, canceled checks, deposit and withdrawal slips, and bills. Do not

throw away documents relating to the IP’s finances. After all, not only is it not your property,

but the Court and/or the Court Examiner may require you to produce the documents for their

review.

S:\pdf\Documents\Miscellaneous\tips on marshaling&maintainingassets-rev March,2010.wpd

BIOGRAPHY

Peachetta S. deFreitas, Esq., a graduate of New York Law School, is an associate in the

Law Office of Alfreida B. Kenny, 11 Park Place, New York, New York. Ms. deFreitas has been

admitted to the bar of the State of New York since 1994 and is admitted to the bars of the State

of New Jersey and the United States Supreme Court.

Ms. deFreitas practices in the areas of adult guardianships under Article 81 of the Mental

Hygiene Law, elder law, trusts and estates, and real estate transactions. In addition to

representing petitioners and objectants in Article 81 proceedings, and guardians appointed in

Article 81 proceedings, Ms. deFreitas has been appointed by the Supreme Court of the State of

New York as, and has served as, Court Evaluator and Guardian of the Property in Article 81

proceedings. Ms. deFreitas represents clients in the Surrogate’s Court of the State of New York

and has been appointed and as, and has served as, guardian ad litem in the Supreme Court and

the Surrogate’s Court.

Ms. deFreitas has participated as a faculty member for training programs on adult

guardianships under Article 81 of the Mental Hygiene Law, approved by the Office of Court

Administration, offered by the New York County Lawyers’ Association and the New York City

Bar.

Ms. deFreitas is the immediate past Chairperson of the Committee on Legal Problems of

the Aging of the New York City Bar.

S:\pdf\Documents\Miscellaneous\Seminars\PSD bio-March,2010.wpd

1NY:4558744.1

New York’s New (2010) Family Health Care Decisions Act

Major step forward or a modest one?

Peter J. Strauss, Esq. (212) 351-4746

Epstein Becker & Green, P.C.250 Park Avenue

New York, New York 10177pstrauss@ebglaw.com

Distinguished Adjunct Professor of LawThe New York Law School

185 W. BroadwayNew York, New York

Peter.Strauss@nyls.edu

2

The Foundation of the Legal Debate

The doctrine of informed consent was established by the case of Schloendorff v. Society of New York Hospital, 211 N.Y. 1 25 (1914) where Justice Benjamin Cardozo, then on the New York Court of appeals, wrote:“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”

3

• See also Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261 (1990)

• “The common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment”

• “...the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be viewed from our prior decisions”

• This right exists even where the decision to decline treatment will result in death.

4

Does the Liberty Interest Right to Refuse Extend to Incapacitated Persons?

• In general, yes. Matter of Quinlan, 70 N.J. 10 (1976)

• But, states have the right to limit how that right may be exercised. Cruzan v. Director, Mo. Dept. of Health, supra.

• Historically, New York has adopted a conservative approach to the right to refuse by requiring clear and convincing evidence of the patient’s wishes before life-sustaining treatment can be withheld or withdrawn.

• Matter of Storar, 52 N.Y.2d 363 (1980)• Eichner v. Dillon, 73 A.D.2d 431 (1980),

modified sub. nom. Matter of Storar, 52 N.Y.2d 363 (1980)

• Matter of Westchester County Medical Center (O’Connor), 72 N.Y.2d 517 (1988)

5

• The clear and convincing evidence test can be met by oral testimony but the best evidence is a written document. Matter of Westchester County Medical Center (O ‘Connor), supra; Delia v., Westchester County Medical Center, 120 A.D.2d 1 (1987)

• Where the clear and convincing evidence test is not met health care providers have been required to use all available medical treatment and procedures

• Most other states have adopted a “substituted judgment” or “best interests” approach

• As a result of the “clear and convincing evidence” rule, in New York the “never competent” or the “formerly competent” person whose wishes could not be proved by clear and convincing evidence did not have the same constitutional right as other residents of the other states to refuse life-sustaining treatment

6

Exceptions to the “Clear and Convincing” Rule

Over the years, New York carved out some limited exceptions to its clear and convincing evidence rule

The first step:

Do Not Resuscitate Orders (“DNR”) - Public Health Law Article 29B, effective August 7, 1987

7

• When the patient is incapable of making the decision about resuscitation personally the decision is delegated, in this order, to:– The surrogate designated by the patient;– His or her guardian (although it is not required

that a guardian be appointed to make the DNR decision);

– The patient’s spouse;– The patient’s adult offspring;– A parent;– An adult sibling; and– A “close friend” defined as a person over 18 who

provides an affidavit to the attending physician, stating that he or she knows the patient well is familiar with his health care and religious beliefs.

8

The Second Exception – The Health Care Proxy

Public Health Law Article 29C Effective January 18, 1991.

• Allows a person to designate a surrogate - the health care agent - by executing a health care proxy.

• A competent adult may appoint a health care agent. (Note the use of the word “competency” rather than “capacity” the more appropriate term used in Article 81 of the Mental Hygiene Law). Every adult is presumed competent “unless …adjudged incompetent or otherwise adjudged not competent to appoint a health care agent, or unless a committee or guardian of the person has been appointed….” (PHL Section 2981).

9

The Health Care Proxy (cont.)

• The agent’s authority to act begins when the attending physician determines that the patient lacks capacity to make health care decisions. (PHL Section 2983). “For a decision to withdraw or withhold life-sustaining treatment, the attending physician who make the determination that a principal lacks capacity to make health care decisions must consult with another physician to confirm such determination” (PHL Section 2983).

• A health care provider shall comply with health care decisions made by an agent in good faith under a health care proxy to the same extent as if such decisions had been made by the principal, subject to any limitations in the health care proxy and pursuant to the provisions of subdivision five of Section 2983(5) . PHL §2984.

10

The Health Care Proxy (cont.)

• The 1990 compromise with the opposing religious groups.

• A health care agent may not refuse or withdraw artificial nutrition and hydration unless the agent has knowledge of the patient’s wishes.

• Borenstein v. Simonson, 8 Misc.3d 481, 797 N.Y.S.2d 818 (Sup. Ct. Queens Co. 2005).

• Suggested language to add to the recommended form: “my agent is aware of my wishes, including my wishes regarding the furnishing of artificial nutrition and hydration”

11

The “Living Will”

• Perhaps better called a “Health Care Declaration” - a document whereby a person expresses his or her wishes as to the kind of care and treatment he or she would want or refuse in the event of incapacity.

• At the present time New York does not have a living will statute, but living wills are recognized by case law. Matter of O‘Connor, supra.

• The Living Will will usually satisfy the “clear and convincing” evidence requirement

12

Exception 3: Surrogate Decision Making for Mentally Retarded Persons and

Developmentally Disabled Persons In order to overcome the harsh rule of the Storar decision, Surrogate’s Court Procedure Act section 1750-b was enacted

• Effective March 17, 2003 and amended effective December 30, 2007.

• SCPA enacted by the legislature in 2002 (L 2002, Chapter 500, effective March 16, 2003) established a procedure for surrogate decision making by a guardian appointed pursuant to SCPA section 1750 for a mentally retarded person consistent with “what such person could make if such person had capacity.”

• “Such decisions may include decisions to withhold or withdraw life-sustaining treatment, as defined in subdivision(e) of section 81.29 of the mental hygiene law….” SCPA sec. 1750-b (1)

• “…When used in this article, life sustaining treatment means medical treatment which is sustaining life functions and without which, according to reasonable medical judgment, that patient will die within a relatively short period of time.” MHL 81.29(e)

• “The guardian shall base all advocacy and health care decision-making solely and exclusively on the best interests of the mentally retarded person and, when reasonably known or ascertainable with reasonable diligence, on the mentally retarded person’s wishes.” SCPA sec. 1750-b 2(a).

13

• The mentally retarded person must be determined by the attending physician with the concurrence of another physician “to a reasonable degree of medical certainty” to:

– Have a terminal condition as defined in Public Health Law 2961 subdivision 23:

“ Terminal condition means an illness or injury from which there is no recovery, and which reasonably can be expected to cause death within one year”

– Be permanently unconscious– Have a medical condition, other than the mental

retardation, which requires life sustaining treatment, is irreversible and which will continue indefinitely and which treatment “would impose an extraordinary burden on such person”

14

• A decision to withdraw or withhold artificially provided nutrition or hydration can be made only where

• there is no reasonable hope of maintaining life

• The artificially provided nutrition and hydration poses an extraordinary burden

• While the passage of SCPA 1750-b was a major a step forward, it provided limited relief because of its applicability to only persons with mental retardation and the limited situations in which it is applicable.

• The constitutionality of the section was upheld by Surrogate Peckham in Matter of Baby Boy W, 3 Misc.3d 656, 773 N.Y.S.2d 255 (Surr. Ct. Broome Co. 2004).

• The statute was held to be retroactive by the Court of Appeals in Matter of M.B., 6 N.Y.3d 437 (2006)

15

Because the statute did not apply to persons with developmental disabilities (see also Matter of Darnell Anthony H, N.Y.L.J. March 18, 2005 p. 26, col. 1 (Surr. Ct. Bronx Co.) the legislature passed the 2007 amendments (L 2007, chapter 105) effective December 30, 2007, which make the following significant changes:

• End of life decisions can now be made by a guardian of a person with developmental disabilities as defined by section 1.03(22) of the Mental Hygiene Law.

• In cases where no guardian has been appointed, the term “guardian” includes a family member who has a “significant and ongoing involvement in a person’s life so as to have sufficient knowledge of their needs and, when reasonably known or ascertainable, the person’s wishes, including moral and religious beliefs.”

16

The 2007 amendments significantly broadened the authority of a family member to make end of life decisions for the person with a developmental disability, even without the need to be appointed guardian by the court, provided the condition falls within the definition of Mental Hygiene Law section 103 (22), which includes a requirement that the disability must have “originated’ before the person attained 22 years of age.

17

The Family Health Care Decisions Act “FHCDA” - Legislative History

The clamor for reform led the New York Task Force on Life and the law in 1992 to issue a report, “When Others Must Choose: Deciding for Patients Without Capacity,” called for a law that would allow for surrogate decision making by family members. Opposition was voiced by various groups that prevented passage until 2010.

18

2010 – FHCDA Passes

On March 16, 2010, Governor Paterson signed Chapter 8 of the Laws of 2010 which was passed by the legislature after 17 years of debate.

The Governor said “After nearly twenty years of negotiations,New Yorkers now have the right to make health care

decisions on behalf of family members who cannot direct their own care.”

Well, almost…

The Family Health Care Decisions Act adopts the concept of substituted judgment decision making - existing in all other states – to New York for patients who• lack capacity to give informed consent• did not leave clear and convincing instructions or evidence of

their wishes• or did not execute a health care proxy

19

Key Purposes

The FHCDA establishes a system for decisions making in order to

• Provide consent to medical treatment

• Allow for decision making at the end of life for withholding or withdrawal of treatment

20

Applicability of FHCDAThe law applies to decisions for adult patients who are in general hospitals or residential health care facilities (skilled nursing homes)Note: the statute uses the term “hospital” to refer to both types of facilities

FHCDA does not apply to persons

• who have appointed a health care agent• who have a guardians appointed under SCPA

1750-b with powers to make life-sustaining treatment or family members who have such powers under 1750-b

• for whom treatment decisions can be made pursuant to OMH or OMRDD regulations (PHL section 2994-b(3)(c))

21

Determination of Incapacity

The FHCDA establishes procedures for determining when a patient lacks capacity

• Presumption of capacity, unless there is a court determination of incapacity or an Art. 81 guardians “is authorized to decide about health care”• Initial determination by attending physician• Concurring determination when required:

In a nursing homeIn a general hospital if the surrogate’s decision involves withdrawal or withholding of life sustaining treatment

•Special credentials are required for professionals who make the determination in the case of persons with mental retardation or mental illness•The patient and the named surrogate must receive notice of the determination•There are additional notification requirements for persons in mental hygiene facilities•If the patient objects to the finding of incapacity or the choice of the surrogate the objection prevails unless there is a court confirmation of incapacity or concludes there is some other basis for overriding the patient’s objection

22

Who Can Make the Decision - The Surrogate

FHCDA sets forth a list of persons, in order of priority, who may act as the surrogate to make decisions for an incapacitated patient

• “A guardian authorized to decide about health care pursuant to article 81 of the mental hygiene law” PHL 2994-(d)

Note: although not clear, it appears that the guardian should be designated as the surrogate in the order of appointment (see section 25 of Chapter 8, laws of 2010, amending MHL section 81.22) (See slide 34)

• The spouse or domestic partner (as defined in FHCDA)

• An adult child

• A parent

• A brother or sister, or

• A close friend

23

DOMESTIC PARTNER“Domestic Partner” means a person who, with respect to another person:

(a) is formally a party in a domestic partnership or similar relationship with the other person, entered into pursuant to the laws of the United States or of any state, local or foreign jurisdiction, or registered as the domestic partner of the other person with any registry maintained by the employer of either party or any state, municipality, or foreign jurisdiction; or

(b) is formally recognized as a beneficiary or covered person under the other person’s employment benefits or health insurance; or

(c) is dependent or mutually interdependent on the other person for support, as evidenced by the totality of the circumstances indicating a mutual intent to be domestic partners including but not limited to: common ownership or joint leasing of real or personal property; common householding, shared income or shared expenses; children in common; signs of intent to marry or become domestic partners under paragraph (a) or (b) of this subdivision; or the length of the personal relationship of the persons.

24

The Extent of the Surrogate’s Authority

A surrogate may make all health care decisions for the patient that the patient could have made if he or she had capacity

Treatment decisions can be made without the consent of a surrogate if the patient had previously expressed a decision, orally or in writing, including with respect to a decision about life sustaining treatment (such a decision would need to have been made orally before two witnesses)

The surrogate’s decisions must be based on the patient’s wishes, including his or her religious or moral beliefs. If the patient’s wishes are not reasonably known and cannnot be ascertained with reasonable diligence the surrogate must decide in the patient’s best interests. PHL section 2994-d(4)

25

Decisions to Withhold or Withdraw Life-Sustaining Treatment

There are two provisions that authorize the surrogate to make decisions about life-sustaining treatment:

1. Life-sustaining treatment can be withdrawn if

– The treatment “would be an extraordinary burden to the patient” and

– The attending physician and another physician determine that

the patient is terminally ill, i.e., is suffering from an illness or injury that can be expected to cause death within six months whether or not treatment is provided or

is permanently unconscious

2. Life-sustaining treatment can be withdrawn if

“The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or excessively burdensome under the circumstances and the patient has an irreversible or incurable condition, as determined by an attending physician with the independent concurrence of another physician to a reasonable degree of medical certainty and in accordance with accepted medical standards”

PHL 2994-d (5)

26

Questions: • Who decides if the treatment “would be” an

extraordinary burden?• Who decides if the treatment is “inhumane?”

Note that the statute states that “providing nutrition and hydration, without reliance on medical treatment, is not health care under this article and is not subject to this article”

Thus, provision of food and water to a patient who has the ability to be fed and can swallow can not be refused

27

The FHCDA Is Flawed with Respect to End of Life Decisions

Does the statute solve the problem of New York’s restrictive history?

Some patients will not fall within the standards set forth for making end of life decisions

It appears that the clear and convincing evidence rule is still extant for such patients

28

George’s Case

George is 79 years of age and suffers from advanced ALS (Lou Gehrig's disease). He can no longer move any muscles, can no longer speak or communicate via the computer technology he could formerly use to express his wishes and needs. He can no longer nod, blink or exert pressure on someone’s hand to signal his wishes or consent. He is being fed through a PEG tube which was inserted in his stomach in 2007. The physicians do not believe he is permanently unconscious nor can they state with certainty that he will die within 6 months.

He is a widower and now resides in a nursing home. George never signed a health care proxy or living will.

George’s daughter, Susan, has discussed with George’s treating physician whether she could, acting as the surrogate under the FHCDA, direct withdrawal of the PEG.

Will Susan prevail?

29

Decisions for Minor Patients

FHCDA allows a parent or guardian of a minor to make end-of- life decisions for a minor child using the same standards set forth for adult patients

The statute did not need to address all health care decisions for minors since parents already had decision making rights in this respect

With respect to end of life decisions, the standards for adults apply

If the physician determines the minor has capacity the minor's consent to withholding or withdrawing treatment is required.

An emancipated minor does not need parent consent but the ethics committee must approve the decisions

30

Adult Patients Without Surrogates

The new law wisely deals with the case of a patient with no family member or friend who can act as surrogate

• For routine medical treatment, the attending physician is authorized to make decisions for patient’s without a surrogate

• For major medical treatment, the attending physician must consult with other health care professionals and a second physician must concur with the attending’s decision

• Decisions with respect to life-sustaining treatment, however, require (1) a court decision in accordance with FHCDA decision making standards or (2) treatment can be withheld or withdrawn if the attending physician and a second physician determine the treatment provides no medical benefit and the treatment would violate accepted medical standards

The doctrine of the requirement of informed consent has been modified!

31

Ethics Review Committees

Hospitals and nursing homes must establish an ethics review committee (ERC) with diverse membership.

The ERC is charged with dispute resolution and provide advisory opinions, except ERC approval is required 1. for decisions to withhold or withdraw life- sustaining treatment in nursing homes2. for decisions by an emancipated minor to forego life-sustaining treatment

32

Moral or Religious Conscious Objections

FHCDA allows private hospitals and other providers to refuse to honor a decision made by a surrogate for moral or religious reasons, if:

• Notice is given to the patient of the facility's policy prior to admission

• The facility or physician transfers the patient to another facility or physician willing to honor the decision

33

Other Provisions

• Good faith actions of surrogates, health care providers and ERC committee members are protected from civil and criminal liability

• Providers that refuse to honor a valid decision of a surrogate are not entitled to compensation for treatment provided, except

Where the refusal was based on a conscious or moral objectionWhere the matter is being reviewed by the ERCWhere there is a dispute between the surrogate and another individual on the surrogate listWhere the provider prevails in litigation concerning the decisions

34

DNR Issues

PHL Article 29-B has been effectively rescinded for most patients by bringing DNR decisions under the standards and procedures established for surrogates under the FHCDA.

PHL Article 29-B has been re-named Orders Not to Resuscitate for Residents of Mental Hygiene Facilities in order to preserve DNR rules for patients in mental hygiene facilities

Chapter 8 creates a new PHL Article 29-CCC to incorporate and continue the provisions regarding non-hospital DNR orders.

Article 29-CCC requires home health agency employees and hospice staff to honor non-hospital DNR orders

35

Dispute between Surrogate and Physician: the “MEDICAL FUTILITY” Issue

Where the surrogate directs provision of life-sustaining treatment and a hospital or physician that does not wish to provide the treatment, Section 2994-f of the FHDA provides

“…if a surrogate directs the provision of life-sustaining treatment, the denial of which in reasonable medical judgment would be likely to result in the death of a patient, a hospital or individual health care provider that does not wish to provide such treatment shall nonetheless comply with the surrogate’s decision pending either transfer of the patient to a willing hospital or individual health care provider, or judicial review …”

The surrogate trumps the provider! Is this the New York standard in “medical futility” cases?

36

“FUTILITY” and the Health Care Agent

Section 23 of Chapter 8 amends the health care proxy statute - PHL Artilce 29-C - in several respects, including adding a provision (section 5) that requires the hospital or physician to provide treatment requested by the health care agent even where the provider does not wish to provide the treatment pending a transfer or a court resolution of the dispute

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Article 81 Guardianship Law Changes

Section 25 of Chapter 8 amends 81.22 (8), which lists the powers that can be granted to a personal needs guardian, to read as follows:

8 (i) for decisions in hospitals as defined by subdivision eighteen of section twenty-nine hundred ninety-four-a of the public health law, act as the patient’s surrogate pursuant to and subject to article twenty-nine-CC of the public health law, and

(ii) in all other circumstances, to consent to or refuse generally accepted routine or major medical or dental treatment, subject to the decision-making standard in subdivision four of section twenty-nine hundred ninety-four-d of the public health law

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Some Questions

Should all future orders appointing a guardian designate the personal needs guardian to be the “surrogate” under FHCDA?

Recommended language:"The personal needs guardian appointed herein is hereby designated as the incapacitated person's surrogate for decisions in hospitals as defined by subdivision eighteen of section twenty-nine hundred-four-a of the public health law (said definition includes nursing homes), subject to article twenty-nine-CC of the public health law, and in all other circumstances, to consent to or refuse generally accepted routine or major medical or dental treatment, subject to the decision-making standard in subdivision four of section twenty-nine hundred ninety-four-d of the public health law"

What about guardians previously appointed? Will they be considered to be the “surrogate”?

Note that new PHL 2994-a (definitions) section 11 states“Guardian of a minor” or “guardian” means a health care guardian or a legal guardian of the person of a minor”

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Article 81 Section 81.29(e) Repealed

Section 26 of chapter 8 repeals this section which had provided

“Nothing in the article shall be construed either to prohibit a court from granting, or to authorize a court to grant, to any person the power to give consent for the withholding or withdrawal of life sustaining treatment, including artificial nutrition and hydration…”

FHCDA gives guardians the right to make end-of-life decisions subject the standards set forth in the new law

40

Recommended Resources

• “The Family Health Care Decisions Act: A Summary of key Provisions’ Robert Swidler, NYSBA Health Law Journal, Spring 2010, Vol. 15, No.1

• “New York’s Family Health Care decisions Act,” Robert Swidler, NYSBA Journal June 2010

• www.nysba.orgUnder “For the Community” click on“Family Health Care Decisions Act Resource Center”

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BIOGRAPHY OF PETER J. STRAUSS

• Peter J. Strauss, Distinguished Adjunct Professor of Law at the New York Law School, where he teaches Elder Law and is co-director of the Guardianship Clinic, is also Senior Counsel of Epstein Becker & Green, P.C., a national law firm, based in its New York office. He has practiced trusts and estate law since 1961 and has special expertise in the legal problems of aging and persons with disabilities and is a frequent lecturer on those issues.

• Mr. Strauss is a prolific author and has written articles for various publications including the New York Law Journal and Bottom Line Personal and has addressed many national professional and consumer organizations. He is co-author of “Aging and the Law” a treatise for professionals published by Commerce Clearing House, Inc. and a consumer book, “The Complete Retirement Survival Guide: Everything You Need to Know To Safeguard Your Money, Your Health and Your Independence,” (Facts-on-File, Inc.) Professor Strauss has taught Elder Law at New York Law School he since 1990 and is co- director of the Elder Law Clinic which he founded in 2003. He is a founding member (1988) and a Fellow of the National Academy of Elder Law Attorneys. He serves on the Center for Medicaid and Medicare Services’ Transitions of Care workgroup – an outcome of the Leaders Roundtable on Caregiving (2008)

• Mr. Strauss has special interest in issues involving capacity for the execution of legal documents and the legal issues and rights of persons with respect to health care treatment at the end of life. He also handles guardianship matters and is known for his work concerning special needs trusts for persons with disabilities.

• Among the accolades Mr. Strauss has received are his designation from 2007 to 2010 as one of the New York Metropolitan area’s “Super Lawyers” and “Best Lawyers.” In 2009 he was honored by Selfhelp Community Services’ Evelyn Frank Legal Resources Program for his vigorous advocacy of older persons and people with disabilities in planning for incapacity, protecting rights in guardianship, and securing public insurance for long-term chronic care costs.

Peter J. Strauss practices in all aspects of trusts and estates as a Senior Counsel of Epstein, Becker & Green, P.C. and is a co-director of its Personal Planning Group. Mr. Strauss has taught Elder Law at the New York Law School since 1990 where he is Distinguished Adjunct Professor of Law and Co-Director of the Elder Law Clinic which he founded in 2003. He is a frequent lecturer for various professional and not-for-profit organizations on planning for later life and persons with disabilities and is a prolific author of articles on problems of aging and planning for incapacity. He is often called upon to speak on the ethical and legal issues involving end of life decision-making and the use of supplemental needs trusts. Mr. Strauss is a founding member and Fellow of the National Academy of Elder Law Attorneys, a former officer of the Elder Law Section of the New York State Bar Association, and a former member and Vice-Chair of the Board of Directors of Choice In Dying – Partnership for Caring, Inc. He is co-author of "Aging and the Law" a treatise for professionals published by Commerce Clearing House, Inc. in 1996, and “The Complete Retirement Survival Guide – Everything You Need to Know to Safeguard Your Money, Your Health, and Your Independence" published by Facts-on-File, Inc.

EDWARD M. VIRSHUP COURT EXAMINER

Edward M. Virshup is a 1967 graduate of the University of Charleston with a BA in

Business who also attended St. John's University School of Law and New York University

Graduate School of Business.

Prior to being designated a Court Examiner by the Appellate Division, First Department

on January 12, 1994, Mr. Virshup’s specialty was Corporate Taxation. He spent three years with

the Internal Revenue Service and twenty-four years in various corporate tax management

positions, the last ten as Vice President-Tax of an international 100 corporation. He was a

member of several corporate taxation related organizations and lectured on various tax matters at

seminars sponsored by those organizations.

Since his appointment as a Court Examiner (the first non-lawyer in the first department),

Mr. Virshup annually reviews a caseload of about 120 cases and has lectured at OCA and NYS

Supreme Court Appellate Division First and Second Department sponsored training sessions for

Court Examiners. Additionally, he lectures at OCA approved Article 81 educational programs

for Court Evaluators and Guardians annually and has lectured at OCA approved CLE seminars

held at and sponsored by various bar associations in the First and Second Departments. He is a

member of the NY County Administrative Judge’s Article 81 Advisory Committee, serving on

several sub-committees, has been appointed by the Court as a Referee to "hear and report" with

regard to Final Accountings and the Court has referred him to guardians to assist them in their

preparation of final accountings.

Faculty Biographies

BIOGRAPHY

Peachetta S. deFreitas, Esq., a graduate of New York Law School, is an associate in the

Law Office of Alfreida B. Kenny, 11 Park Place, New York, New York. Ms. deFreitas has been

admitted to the bar of the State of New York since 1994 and is admitted to the bars of the State

of New Jersey and the United States Supreme Court.

Ms. deFreitas practices in the areas of adult guardianships under Article 81 of the Mental

Hygiene Law, elder law, trusts and estates, and real estate transactions. In addition to

representing petitioners and objectants in Article 81 proceedings, and guardians appointed in

Article 81 proceedings, Ms. deFreitas has been appointed by the Supreme Court of the State of

New York as, and has served as, Court Evaluator and Guardian of the Property in Article 81

proceedings. Ms. deFreitas represents clients in the Surrogate’s Court of the State of New York

and has been appointed and as, and has served as, guardian ad litem in the Supreme Court and

the Surrogate’s Court.

Ms. deFreitas has participated as a faculty member for training programs on adult

guardianships under Article 81 of the Mental Hygiene Law, approved by the Office of Court

Administration, offered by the New York County Lawyers’ Association and the New York City

Bar.

Ms. deFreitas is the immediate past Chairperson of the Committee on Legal Problems of

the Aging of the New York City Bar.

S:\pdf\Documents\Miscellaneous\Seminars\PSD bio-March,2010.wpd

Steven R. Finkelstein is an Elder Law and Estate Planning partner in the firm Finkelstein & Virga, P.C. Mr. Finkelstein is a graduate of St; John’s University Law School and has been a member of the New York State Bar since 1982.

ALFREIDA B. KENNY, ESQ. Principal

Law Offices of Alfreida B. Kenny

Alfreida B. Kenny, Esq. is a graduate of Columbia University School of Law, class of 1975. She has extensive experience in fiduciary matters, including guardianships, conservatorships, and receiverships. Ms. Kenny has been appointed and served frequently as guardian ad litem, representing infants and unknown distributees before the Surrogate’s Court of the State of New York in probate and accounting proceedings. She has been appointed by the Supreme Court of the State of New York to serve as trustee of supplemental needs trusts and continues to serve as trustee of supplemental needs trusts. Ms. Kenny has been appointed and served as guardian ad litem for incompetents in the United States District Court for the Eastern District of New York and the United States District Court for the Southern District of New York. She has been appointed and served as conservator, court evaluator, counsel to alleged incapacitated persons, and guardian of the person and/or property in Article 81 proceedings before the Supreme Court of the State of New York for the Counties of New York and Bronx. She represents petitioners in Article 81 proceedings, those raising objections in Article 81 proceedings, and guardians appointed pursuant to Article 81 of the Mental Hygiene Law. Ms. Kenny is a frequent lecturer for bar associations and other continuing legal education programs on issues pertaining to adult guardianships. She has participated as a faculty member for training programs and seminars on conservatorships under the repealed Article 77 of the Mental Hygiene Law and adult guardianships under Article 81 of the Mental Hygiene Law, approved by the Office of Court Administration, in accordance with Mental Hygiene Law §§ 81.39 and 81.40, offered by various bar associations and organizations, including the New York County Lawyers’ Association, the Bronx Bar Association, The New York City Bar, and Practising Law Institute. She has participated in panel discussions regarding physician-patient privilege, offered by the Elder Law Section of the New York State Bar Association, and practical issues confronting lawyers in Article 81 proceedings, offered by the Women’s Bar Association of the State of New York. Ms. Kenny is a member of the panel of mediators in the United States District Court for the Southern District of New York and has mediated cases in the United States District Court for the Southern District of New York, as well as commercial cases in the Commercial Division of the Supreme Court of the State of New York, County of New York. As a result of her training and experiences in mediation and adult guardianships, Ms. Kenny has concluded that mediation is an appropriate vehicle to resolve many disputes that arise in adult guardianship proceedings. She has expanded her law practice to include mediation of disputes that arise prior to the commencement of guardianship proceedings and during the pendency of guardianship proceedings. Ms. Kenny is active in bar association activities. She served as a member of the Committee on Trusts, Estates and Surrogate’s Courts of the New York City Bar. She also served as a member of the New York County Lawyers’ Association’s Estates, Trusts and Surrogate’s Court Practice Section and as Co-Chair of the Trusts and Estates Legislation and Governmental Affairs Committee of the New York County Lawyers’ Association. She currently is a member of the Executive Committee of the Elder Law Section of the New York State Bar Association.

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 1997. She also holds a Masters of Business Administration, specializing in Finance. She has practiced with Miller & Milone, P.C. since 1997. 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.

Marcie A. Serber Deputy Statewide Coordinator NYS Office of Court Administration Guardian and Fiduciary Services 25 Beaver St Suite 1110 New York, New York 10004 212.428.2830 mserber@courts.state.ny.us www.nycourts.gov/ip/gfs

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.

Judge Ellen Spodek Judge Ellen M. Spodek has been a Justice of the Supreme Court since 2008. 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 2006. 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 1988. 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.

Peter J. Strauss practices in all aspects of trusts and estates as a Senior Counsel of Epstein, Becker & Green, P.C. and is a co-director of its Personal Planning Group. Mr. Strauss has taught Elder Law at the New York Law School since 1990 where he is Distinguished Adjunct Professor of Law and Co-Director of the Elder Law Clinic which he founded in 2003. He is a frequent lecturer for various professional and not-for-profit organizations on planning for later life and persons with disabilities and is a prolific author of articles on problems of aging and planning for incapacity. He is often called upon to speak on the ethical and legal issues involving end of life decision-making and the use of supplemental needs trusts. Mr. Strauss is a founding member and Fellow of the National Academy of Elder Law Attorneys, a former officer of the Elder Law Section of the New York State Bar Association, and a former member and Vice-Chair of the Board of Directors of Choice In Dying – Partnership for Caring, Inc. He is co-author of "Aging and the Law" a treatise for professionals published by Commerce Clearing House, Inc. in 1996, and “The Complete Retirement Survival Guide – Everything You Need to Know to Safeguard Your Money, Your Health, and Your Independence" published by Facts-on-File, Inc.

EDWARD M. VIRSHUP COURT EXAMINER

Edward M. Virshup is a 1967 graduate of the University of Charleston with a BA in

Business who also attended St. John's University School of Law and New York University

Graduate School of Business.

Prior to being designated a Court Examiner by the Appellate Division, First Department

on January 12, 1994, Mr. Virshup’s specialty was Corporate Taxation. He spent three years with

the Internal Revenue Service and twenty-four years in various corporate tax management

positions, the last ten as Vice President-Tax of an international 100 corporation. He was a

member of several corporate taxation related organizations and lectured on various tax matters at

seminars sponsored by those organizations.

Since his appointment as a Court Examiner (the first non-lawyer in the first department),

Mr. Virshup annually reviews a caseload of about 120 cases and has lectured at OCA and NYS

Supreme Court Appellate Division First and Second Department sponsored training sessions for

Court Examiners. Additionally, he lectures at OCA approved Article 81 educational programs

for Court Evaluators and Guardians annually and has lectured at OCA approved CLE seminars

held at and sponsored by various bar associations in the First and Second Departments. He is a

member of the NY County Administrative Judge’s Article 81 Advisory Committee, serving on

several sub-committees, has been appointed by the Court as a Referee to "hear and report" with

regard to Final Accountings and the Court has referred him to guardians to assist them in their

preparation of final accountings.