The Guardianship Process: The Attorney's Perspective

by:  Jay J. Sangerman. Esq. © 2000

Reprinted from: The Bulletin, published by the New York State Psychiatric Association, Area II, Vol. 37, No. 6, May-June, 1995.

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       Effective legal representation under the New York guardianship statute generally necessitates the close working relationship between an attorney and a psychiatrist. Article 81 of the New York Mental Hygiene Law ("Article 81") replaced the old conservatorship and committee proceedings effective as of April 1, 1993. The raison d'etre of the new statute was that the conservatorship and committee statutes did not provide the flexibility necessary to meet the diverse and complex needs of persons with incapacities. Conservatorships, which dealt with financial management only, generally were insufficient to provide necessary relief. On the other hand, a committee, with its judicial finding of "incompetence" and the accompanying stigma and loss of civil rights, involved a deprivation that was often excessive and unnecessary. As a result of the lack of flexibility under the old statutes, people with significant, but not total, limitations were not appropriately or adequately provided for because of the strict requirements of the committee proceedings necessitating a finding of total incapacity. Further, judges generally were reluctant to appoint a committee except in the most extreme of cases. The cornerstone of Article 81 is the concept of appointing a guardian whose powers are tailored specifically to the particular needs of a person with respect to personal care, property management or both. The preservation of the alleged incapacitated person's due process under the law and of his/her constitutional fights and self-esteem are essential within the framework of Article 81.

       The main "players" in the Article 81 guardianship proceeding are the petitioner alleging that the individual is incapacitated; the alleged incapacitated person (the "AIP"); the Court Evaluator selected by the judge to investigate on behalf of the court; in certain instances. a court-appointed attorney to represent the AIP; and the psychiatrist. Generally, although not required, the petitioner will arrange for a psychiatric evaluation of the AIP prior to commencing a guardianship proceeding and will attach the doctor's report or affirmation as an exhibit to the petition. Additionally, the Court Evaluator (with the court's permission) and the AIP may each retain a psychiatrist to evaluate the AIP and to testify at the hearing. The psychiatrists' role and form of testimony will vary with the party retaining the psychiatrist.

Standard of Incapacity

       Unlike the old conservatorship and committee statutes, the guardianship statute succinctly sets forth the standard for finding that an AIP is in need of a guardian. The operative term in Article 81 is "functional capacity": the AIP'S functional abilities and functional deficits. The term "incompetent" is never utilized under Article 81. The statute requires a showing of "clear and convincing" evidence that the AIP is likely to suffer harm because (i) the AIP is unable to provide for his/her personal needs and/or property management and (ii) the AIP cannot adequately understand and appreciate the nature and consequences of such inability. The burden of proof is on the petitioner to establish the AIP'S incapacity and not on the AIP to prove his/her capacity. If a guardian is to be appointed, the statute requires that the court grant the guardian the least restrictive powers necessary to protect the AIP and his/ her liberty and rights. Psychiatric testimony should be presented (i) to assess the AIP'S functional abilities and limitations. (ii) to evaluate the AIP'S understanding of his/her limitations, if any, and the consequences thereof and (iii) to guide the court in determining the least restrictive alternatives necessary to protect the AIP.

       The key to the appointment of a guardian under Article 81 is whether an AIP understands and appreciates the nature and consequences of his/her functional limitations. For instance, a person may not have the functional capacity to manage his/her financial affairs, but may acknowledge such incapacity. Such an individual may not require the appointment of a guardian if s/he is willing to make provisions to compensate for those limitations, such as by executing a power-of-attorney or a trust agreement. Similarly, a person who is physically disabled or severely paralyzed and cannot physically perform his/her own financial affairs but has made arrangements for the handling of such matters, may not be incapacitated for purposes of the statute. It is the psychiatrist's responsibility to delineate for the court (i) the AIP'S functional abilities, (ii) the AIP'S functional inabilities, (iii) the AIP'S understanding of his/her inabilities, (iv) the AIP'S appreciation of the consequences of his/her inabilities and (v) the harm the AIP is likely to suffer, if any, as a result of his/her failure to understand or appreciate the nature and/or consequences of those inabilities. Whether the psychiatrist is testifying on behalf of the petitioner. the AIP or the court, addressing the foregoing issues is essential.

       The psychiatrist can only address specific facts concerning the AIP'S medical condition, functional capacity and understanding of the nature and consequences of his/her limitations. Although Article 81 does not require the submission of a doctor's affirmation with the petition, many judges expect a doctor's affirmation in order to better frame the issues for the court. A sample doctor's affirmation is appended to this Article which clearly sets out the specific information that a psychiatrist will be requested to tell the court on paper, as well as in oral testimony, in order for the Court to determine whether a guardian should be appointed. Note that although the affirmation is quite detailed, there is no legal conclusion as to whether a guardian should be appointed. The attorney eliciting the psychiatrist's testimony will generally address the following areas:

I . The psychiatrist's qualifications as an expert witness. including his/her occupation, education, training, affiliations, specialty, certification and type of practice, particularly the psychiatrist's experience with functionally disabled individuals, including the geriatric population.

2. The psychiatrist's relationship with the AIP, including whether s1he is the AIP'S treating physician or if the examination was solely for the purpose of the proceeding, how long s/he has known the AIP; who requested the examination; who, if anyone, provided background information to the psychiatrist; and what medical records, if any, did the psychiatrist review.

3. The psychiatrist’s examination(s) of the AIP, including the date or dates and length of each examination; the types of examinations and tests conducted, both mental and physical, if any. and the results thereof, the place of examination; the medications, if any, the AIP was taking at the time of the examination and the medications, if any. the AIP is taking at the time of the hearing and any prior medications; and the medical records, if any, reviewed. If there was more than one examination. the attorney will likely address each examination separately and the reason for each such examination.

4. The psychiatrist's observations and findings pertaining to the AIP's medical condition, including the AIP'S medical condition. mentally and physically; appearance; orientation; mental status; results and conclusions based on tests, both mental and physical, if any; changes, and the likelihood of change, in the AIP'S mental and/or physical status.

5. The psychiatrist's observations and findings pertaining to the AIP'S functional ability to manage his/her financial affairs, including the AIP's ability to do mathematical calculations, simple or complex; his/her awareness of the value and/or location of assets; specific examples of his/her inability to manage financial affairs; the AIP's willingness, if any, to accept assistance and from whom.

6. The psychiatrist's observations and findings pertaining to the AIP's functional ability to manage his/her personal affairs, including the AIP's ability to handle activities of daily living; medical decision making; placement decision making; current understanding of medical condition and of need, if any, for medical attention or assistance, including with activities of daily living, compliance with necessary medications, dietary restrictions and/or physical limitations; specific examples of his/her inability to manage personal affairs; the AIP's willingness, if any, to accept assistance and from whom.

7. The psychiatrist's conclusions pertaining to the AIP's functional capacity, including the AIP's ability to manage his/her financial affairs and/or personal affairs; the AIP's understanding and appreciation of the nature and consequences of his/her inabilities; and the likelihood the AIP's condition will change or improve.

8. Lastly, the psychiatrist's conclusions as to the AIP's presence at the hearing, including whether any useful purpose will be served by the AIP's presence in the courtroom; whether the AIP is able to understand and appreciate the nature of the proceeding; and whether the AIP would be able to meaningfully participate in the proceeding.

       Naturally, there will be some distinctions in the psychiatrist's testimony depending on whose behalf s/he is acting. The pre-petition stage is perhaps the most critical stage for the petitioning attorney because s/he must first assess whether a guardianship proceeding is appropriate. There are significant financial issues at stake. Should the petition be dismissed, the court could, and likely would, assess the petitioner for the fees for the Court Evaluator and the Court appointed attorney, if any, representing the AIP. The petitioner will also be responsible for his/her own attorney's fees, fees for the evaluating psychiatrist and court costs. The total fees alone could be as much as $15,000, if not higher. Additionally, if the Court finds the proceeding to be frivolous (or nothing but a fight among family members), in addition to assessing fees, it could fine, and has done so, the petitioner and his/her attorney The psychiatrist is often crucial to the proper analysis of whether to commence a guardianship proceeding and, if so, the powers to be requested.

       In the event the AIP contests any or all of (i) the appointment of a guardian, (ii) the appointment of the proposed guardian or (iii) the authority of the guardian, the AIP should be evaluated by a psychiatrist on his/ her own behalf who may be called by the AIP's attorney to testify. As appropriate, the testimony that the AIP's attorney will seek to elicit is to clarify and enumerate the AIP's functional capacities; the AIP's understanding of his/her limitations; the AIP's understanding of the proceeding; the AIP's ability to designate whom s/he wishes to assist him/her; the AIP's ability to express and understand his/her desires and dislikes. The AIP's attorney certainly will ask the basis of the psychiatrist's opinion, including the relationship to the AIP, tests conducted and conclusions as set forth above.

       The Court Evaluator, if s/he feels that the petitioner's psychiatrist and/ or the AIP's psychiatrist may not have satisfactorily or appropriately examined the AIP, may ask the court for permission to have the AIP evaluated. The Court Evaluator, under the statute. is supposed to be a neutral party, but, in reality, often takes a side. His/her goal should be clarification, not advocacy. The Court Evaluator does not represent the AIP.

Doctor-Patient Privilege

       It is not unusual for the attorney for the petitioner to request the treating physician to sign an affirmation as to the mental capacity of the AIP. Alternatively, the petitioner may request that the court order a psychiatric evaluation. Under New York law, information learned within the context of the doctor-patient relationship may be privileged. Therefore, before the psychiatrist examines the AIP (and/or submits an affirmation), it would be prudent (i) to consult his/her attorney or hospital legal department as to doctor-patient privilege and, if the psychiatrist is going to examine the AIP, then (ii) to advise the AIP prior to the examination that the examination is or may be used for the purpose of possible litigation against the AIP. Where there is a concern that the AIP may raise the doctor-patient privilege to keep the physician's testimony from being presented to the court, the physician may decide not to write an affirmation, but instead wait for a ruling from the court as to the permissibility of such testimony.

       The statute has a provision for the review of medical information. Pursuant to Mental Hygiene Law 81.09(d), the court evaluator may ask the court for permission to access confidential medical information. In this manner, the AIP has the opportunity to object to the medical disclosure.

       In Matter of Rose Goldfarb, 160 Misc.2d 1036; 612 N.Y.S.2d 788 (Sup. Ct. Suffolk Co. 1994), the AIP objected to the petitioner's introduction of medical testimony asserting the physician-patient privilege as provided in the Civil Procedure Laws and Rules Section 4504 (a). After reviewing the available case law, the court held that the AIP waived the physician-patient privilege by placing her medical condition in issue by her submission of a physician's affirmation in support of her motion to dismiss the petition and, therefore, the petitioner's physician's testimony was admissible. Furthermore, the court stated that "any damage, injury or embarrassment which may have been incurred by the patient by such admission into evidence can be minimized by an order sealing the record..." Commenting on how an AIP may be able to prevent the submission of privileged testimony, the court stated:

The strategically safe response of an alleged incapacitated person seeking to challenge a petition and supporting medical proof claimed to be violative of the physician-patient privilege is to seek to have such violating medical proof stricken and to put a petitioner to his or her burden of proof without the benefit of such medical proof. By following this procedure the alleged incapacitated person will insure that the physician-patient privilege, unless for some other reason having been waived, will remain intact at least until that point in the proceeding in which the court evaluator may seek the court's permission to review the alleged incapacitated person's medical, psychological or psychiatric records.

Case Histories

       Cases in which the AIP clearly suffers dementia and is not oriented to time and place are relatively simple. It is the cases where the AIP has short term memory loss, or the AIP has capacity to handle some affairs. but is unwilling to accept assistance with respect to his/her incapacitates. such as accepting medical assistance or home care, that are the challenging and difficult cases. Similarly, the cases where the AIP suffers from delusions and paranoia are also difficult. Of particular concern are situations where the AIP clearly understands that s/he could suffer harm from not taking prescribed medications, yet refuses to do so: Should an AIP have his or her liberty taken away and a guardian appointed or should the court permit such person to continue not taking medication.

       A few examples follow: M.. is a 94 year old woman who was physically abused by her 88 year old husband J.P. It was their second marriage of over 40 years. M.. had a son of her prior marriage. J.P. had no children. J.P. did everything possible to prevent M.. having homecare attendants. M.. had trouble walking, yet J.P. placed throw rugs in her path. In order to keep the couple's assets for himself and to prevent any possibility of money being inherited by M.P.'s son, J.P. placed all the couple's funds, which had been jointly held, in his name. Although M.. was competent, she could not advocate for herself. Under the old guardianship statute, the appointment of a committee would have been inappropriate, and the judge so stated. M.. required the flexibility of the new guardianship statute. Therefore, we adjourned the proceedings until the effective date of the new statute and then, with the appointment of a guardian, designed a plan of care.

      Similarly, C.K., who had an estate of approximately $3.5 million, could not manage her funds. C.K. was a proud woman, a concert pianist. The psychiatrist for the AIP testified that C.K. understood her functional limitations affecting her ability to handle her financial affairs and had the capacity to agree to a trustee to manage her financial affairs. Partly due to the psychiatrist's testimony, the Court agreed to dismiss the petition on the condition that C.K. execute a trust agreement acceptable to the Court. In this plan, C.K. was able to maintain her dignity without having the stigma of being judicially declared incapacitated. Under C.K.'s plan, the trustee is authorized to hire social workers and home attendants. as necessary.

       In other cases. including a recent New York Appellate Division case In re Maher, Second Department, December 30, 1994 (LEXIS), the Court held that a guardian was not required where the AIP, although unable to manage his/her own affairs, had capacity to, and did, arrange assistance. including the granting of a power-of-attorney. In Maher, the AIP suffered from a stroke which left him with fight sided hemiplegia and aphasia. After reviewing the evidence on the AIP's functional abilities and limitations, the court noted that the clear and convincing evidence in the hearing record establishes only that the respondent suffers from certain functional limitations in speaking and writing, but not that he is likely to suffer harm because he is unable to provide for the management of his property, or that he is incapable of adequately understanding and appreciating the nature and consequences of his disabilities. Indeed, by granting a power of attorney to Irwin Simon, and by adding his wife as signatory on certain of his bank accounts, the respondent evidenced that he appreciated his own handicaps to the extent that he effectuated a plan for assistance in managing his financial affairs without the need for a guardian.


       Article 81 of the Mental Hygiene Law, the New York guardianship statute, dramatically expands upon the possibilities for creating an appropriate plan of care for the AIP, including the involvement of the AIP in developing such plan, to the extent of the AIP's ability. Whereas these matters can be highly litigious, generally the issue is not whether a guardian needs to be appointed, but what powers the court should grant to the guardian and how best to make available to incapacitated persons "the least restrictive form of intervention which assists them in meeting their needs" while at the same time permitting them "to exercise the independence and self-determination of which they are capable." (MHL Sec. 8 1.0 1). Working together, the attorney and the psychiatrist can assist the court in its determination of providing the appropriate care for incapacitated individuals.

The author acknowledges with grateful appreciation his senior associate, Lynda J. Goldfarb, Esq.. for her assistance and review of this article.

Jay J. Sangerman, PLLC
171 East 84th Street, Unit 21B
New York, New York 10028
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