I have been practicing in the area of trusts and estates litigation for so long that it is rare that I even raise an eyebrow at what people will do and say about their families in order to gain an advantage in a probate contest or other estate proceeding. I also have developed a varied practice in guardianships, having represented petitioners and alleged incapacitated persons, and having been appointed many times as a court evaluator. The court evaluator is the person in a Mental Hygiene Law Article 81 guardianship proceeding appointed to be the so-called “eyes and ears” of the court to report to the judge after conducting a thorough investigation of whether the alleged incapacitated person needs a guardian to handle any or all of that person’s personal needs or property management. Again, I have seen the best and the worst of people in that aspect of my practice. Luckily, in the Article 81 arena, the good has outweighed the bad as most litigants have the alleged incapacitated person’s best interests at heart when they commence an Article 81 proceeding; the hoped-for result is the appointment of a guardian to help someone who can no longer handle his or her personal needs and/or property management and “cannot adequately understand and appreciate the nature and consequences of such inability” (Mental Hygiene Law § 81.02 (b)). Indeed, incapacity must be proved at a hearing by “clear and convincing evidence” demonstrating that the individual “is likely to suffer harm” as a result of his or her infirmities (id.). Given that the alleged incapacitated person’s very liberty interests are at stake, it is no wonder that the standard is as strict as it is and that the statute affords the incapacitated person due process, including the right to a jury trial. Think of it from your perspective: How would you react if someone alleged that you could not take care of your finances, your living arrangements, your health, and even end-of-life decisions?
The value of Article 81 is stated in its legislative purpose. Unlike its predecessors of conservatorships and committees, which offered no flexibility when a person was found to need assistance with finances or personal needs, Article 81 is designed to “promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes into account the personal wishes, preferences and desires of that person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person’s life” (Mental Hygiene Law § 81.01).
That does not mean there is no potential for abuse. I recently was appointed as a court evaluator in an Article 81 proceeding involving a woman who was in a nursing facility after having been hospitalized because she was unable to walk. After several months in the nursing facility, she still was unable to get out of bed by herself or walk, even with the aid of a walker. The nursing facility commenced an Article 81 proceeding seeking the appointment of a guardian for the woman. However, after meeting with the alleged incapacitated person, for whom the court wisely had appointed counsel, it was obvious there was simply no justification for alleging, much less determining, that she needed a guardian. This was borne out by my interviews with her relatives and even with her social worker at the nursing facility, who told me that the woman was “cognitively intact.” A review of her medical and psychological records, which were obtained with the woman’s consent, affirmed this. With just a little digging, I learned that the proceeding was brought because the woman had a billing dispute with the nursing facility and would not pay her bill. The nursing facility had the right to expect payment, but not at the expense of a person’s liberty interests.
Often, nursing facilities commence Article 81 proceedings in order to have a guardian appointed for an individual in its care who is eligible for Medicaid, but for whom no one is available to apply for the benefits. This is not an abuse, when the alleged incapacitated person can be said to meet the criteria for needing a property management guardian. However, that was not the case here. Commencing an Article 81 proceeding alleging that the woman in question lacked capacity was nothing other than a flagrant abuse of the statute’s intended purpose. Fortunately, the nursing facility, though its attorney, responded to reason and offered to withdraw the proceeding prior to the hearing. Had it not, my report to the court would have recommended, in strong terms, that the nursing facility’s request for the appointment of a guardian be denied. Certainly, this was a situation where recommending sanctions would have been appropriate. Further, the woman’s court-appointed attorney would have had the option to move to dismiss the proceeding. And, of course, at the hearing, the judge would have had the opportunity to question the woman and, undoubtedly, would have determined that the woman was not in need of a guardian.
With my eyebrow back in alignment with its mate, I am relieved that Article 81 contains rigorous due process requirements.