Overview of Guardianship 2 Materials Condensed from NYCLA Certified Guardian Training ...

193 Pages·2012·3.46 MB·English

Overview of Guardianship 2
Materials Condensed from NYCLA Certified Guardian Training Program
held December 13, 2011 and chaired by Clifford A. Meirowitz, Law Offices
of Clifford A. Meirowitz PLLC

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Alfreida B. Kenny, Esq.
11 Park Place, 10th Fl.
New York, New York 10007
(212( 809-27000
CONSIDERATIONS FOR COUNSEL FOR THE ALLEGED INCAPACITATED
PERSON IN AN ARTICLE 81 GUARDIANSHIP PROCEEDING.
November 30, 2010
I. THE ROLE OF COUNSEL
(cid:145) A lawyer is to “abide by a client’s decisions concerning the objectives of
representation and, as required by Rule 1.4 shall consult with the client as to the
means by which they are to be pursued”. 22 NYCRR, Part 1200, Rule 1.3.
(cid:145) It is the role of counsel to advocate the wishes of the client even if counsel
believes that the client’s judgment is not good, what the client wants is not in the
best interest of the client, or what the client wants could prove to be detrimental to
the client over the course of time.
(cid:145) 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 has
made to the client. Ultimately, the client makes the decision and counsel must
follow the directions of the client.
(cid:145) Poor judgment and bad decisions are not tantamount to diminished capacity.
(cid:145) If the client has diminished capacity, counsel must determine whether the client
has sufficient capacity to direct counsel. 22 NYCRR, Part 1200, Rule 1.14 states,
“When a client’s capacity to make adequately considered decisions in connection
with a representation is diminished, whether because of minority, mental
impairment or for some other reason, the lawyer shall, as far as reasonably
possible, maintain a conventional relationship with the client.
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II. RETAINED COUNSEL
(cid:145) Initial Meeting with the AIP and Subsequent meetings.
(cid:145) Introduce yourself to the AIP and explain why you are meeting with the
AIP.
(cid:145) Inform the AIP who asked you to meet with the AIP and why.
(cid:145) Explain to the AIP the petition, who is involved, the petitioner, as well as
other family members and/or friends, and how these people are involved in
the Article 81 guardianship proceeding.
(cid:145) Meet with the AIP frequently in your office, as well as at the AIP’s
residence. Meet with the AIP alone, and at other times with those whom
the AIP chooses.
(cid:145) Explain to the AIP that it sometimes is important to meet with the
AIP alone and not in the presence of others to protect lawyer-client
privilege, as well as to ascertain what the AIP recalls without the
assistance of others.
(cid:145) Counsel also should meet alone with the AIP separately to elicit
information that the AIP may not be comfortable relating to
counsel if others are present, including those individuals whom the
AIP fears or those individuals who may be exerting undue
influence upon the AIP.
(cid:145) On each occasion that counsel meets with the AIP, review with the AIP
what was discussed when counsel last met with the AIP or spoke with the
AIP during a telephone discussion.
(cid:145) Make the best possible assessment of the AIP’s abilities or lack thereof
regarding short-term memory and long-term memory.
(cid:145) It is important to meet with the AIP frequently to avoid the AIP forgetting
counsel’s name, who counsel is, why counsel is meeting with the AIP, and
the fact that the AIP has retained counsel.
(cid:145) Objectants, including the court evaluator, may suspect that so-
called retained counsel was not retained by the AIP because the
AIP allegedly does not have the capacity to enter into a contract.
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(cid:145) If the court evaluator or others advise the Court of the possibility
that the AIP does not have capacity to retain counsel, the Court
generally will conduct a hearing solely for the purpose of
determining whether the AIP had or has capacity to retain counsel.
(cid:145) Mental Hyg. Law § 81.10(a) provides that the AIP has the right to
choose and engage legal counsel. The Court is to determine
whether “retained counsel has been chosen freely and
independently by the alleged incapacitated person”.
(cid:145) 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 is
appointed.
(cid:145) Counsel should determine, if possible, prior to be being retained
whether the AIP can direct counsel in counsel’s representation of
the AIP. If retained counsel concludes that the AIP cannot direct
counsel, then counsel cannot represent the AIP, and thereby
advocate for the wishes of the AIP. However, counsel can
represent family members, such as spouse and children, and by
representing those individuals proceed to work for the best interest
of the AIP.1
(cid:145) If counsel is retained and paid by family members to represent the
AIP, the Court must make a determination that the AIP freely and
independently has chosen counsel to represent the AIP. A
determination that the AIP acted freely becomes more difficult for
the Court to make when the facts likely will show that prior to the
commencement of the proceeding, the AIP did not know counsel,
counsel is a friend of a member of the AIP’s family, or counsel
represents a member of the AIP’s family. It will become
increasingly difficult, but not impossible, for the Court to make a
1 Although difficult, counsel who represents a family member of an AIP may be able to
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 most
cases, the Court will allow counsel for family members to participate in the hearing and to work
toward a settlement. The Court will understand without anyone making a statement that counsel
has determined that the AIP cannot direct counsel but that counsel will work for the best interests
of the AIP. However, if counsel’s actions demonstrate to the Court that counsel is in fact
representing the interests of the family member rather than the AIP, the Court will not be so
inviting to counsel.
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determination that the AIP acted freely if family members or others
are paying the legal fees incurred in connection with counsel
representing the AIP.
(cid:145) If counsel is retained by family members to represent the
AIP, there likely will be a conflict between what the family
members want counsel to do and what the AIP wants
counsel to do. Counsel’s loyalty and duties are owed to the
AIP and not to those paying the bills. If family members
are paying the legal fees, the retainer agreement should
expressly state that notwithstanding that the family
members are paying the legal fees, counsel is bound to
represent the AIP in accordance with the wishes of, and the
instructions given by, the AIP and as directed by the AIP,
even if such representation is contrary to the wishes of the
payer of the bills.
(cid:145) The family members may want counsel to represent the AIP
in a fashion that is in the best interest of the AIP, while the
AIP may want counsel to represent the AIP in a manner that
is not in the best interest of the AIP but is what the AIP
wishes. For example, counsel may be able to resolve the
Article 81 proceeding with a settlement by having his client
agree to relocate to an assisted-living facility and give a
power of attorney to #1 Son. The members of the AIP’s
family agree that this is the perfect solution; it avoids the
appointment of a guardian, #1 Son, who is an accountant,
will handle Mom’s financial affairs, the legal fees will be
reduced because there will not be a long and drawn-out
hearing, and Mom will not have to listen to the testimony
of friends and family members when they relate to the
Court how she is forgetful and wanders if she is not
accompanied by someone. Mom says to all of them, Go to
hell”. I am not leaving my residence of 50 years. I am not
forgetful; 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 money
better than he can handle my money.” The AIP directs
counsel not to settle, to represent her at the hearing, and
argue to the Court that she does not have any functional
limitations that impair her ability to provide for her
personal or property management and that she does not
need a guardian of any sort. Clearly, counsel must advocate
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what his client, the AIP, asks. No doubt, no matter how
many times counsel explains to the family members
counsel’s ethical obligations, the family members will not
understand why counsel will advocate for a position that
counsel knows is not in the best interests of his client, the
AIP.
(cid:145) When the bills are paid by one other than the client, ethical
issues are likely to arise.
III. COURT-APPOINTED COUNSEL
(cid:145) Court-appointed, as retained counsel, must abide by the wishes and directions of
the client. If court-appointed counsel believes that the capacity of the AIP is so
diminished that the AIP cannot reason or direct counsel, counsel should consider
whether it may be more appropriate for the Court to appoint a guardian ad litem.
(cid:145) However, if counsel is appointed because Article 81 mandates the appointment of
counsel, counsel may be compelled to only represent the AIP in connection with
protecting the due process rights and other rights of the AIP, rather than
advocating a frivolous position. 22 NYCRR, Part 1200, Rule 1.16.
IV. PREPARATORY WORK PRIOR TO THE HEARING
(cid:145) Communicating with the Court Evaluator
(cid:145) Contact the Court Evaluator as soon as possible after counsel believes that
counsel understands the facts and the AIP’s position. Give the Court
Evaluator the facts that will help your client. Counsel also should give to
the Court Evaluator facts that are not so helpful that counsel knows that
the Court Evaluator will learn from other sources. Elicit from the Court
Evaluator what the Court Evaluator has learned from others.
(cid:145) Ask the Court Evaluator when the Court Evaluator would like to meet
with the AIP.
(cid:145) Prepare the AIP for the meeting with, and interview by, the Court
Evaluator.
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(cid:145) Be present at the meeting between the AIP and the Court
Evaluator.
(cid:145) If your client, the AIP, is forgetful, find a way to handle the
forgetfulness without interfering with the Court Evaluator’s
interview of the AIP.
(cid:145) You may want to tell the AIP not to worry if she cannot remember
everything and advise the AIP to tell the Court Evaluator when she
cannot remember and that whatever it is that she has forgotten, she
is sure that she will remember before the Court Evaluator leaves.
(cid:145) Do not interfere with the Court Evaluator interviewing the AIP. Be
prepared for the Court Evaluator to ask the AIP tough questions,
which sometimes may seem to be insensitive. Counsel’s
interference with the Court Evaluator could result in doing more
damage to the AIP than allowing the AIP to answer the Court
Evaluator’s questions, even if incorrectly.
(cid:145) Begin early on discussing with the Court Evaluator why your client does
not need a guardian and/or the least restrictive alternatives to a
guardianship.
(cid:145) As you learn facts that will assist your client, give those facts to the Court
Evaluator. If you have documents that demonstrate that an individual who
seeks to be a guardian is unfit, furnish those documents to the Court
Evaluator. For example, Son #2 was the agent under a power of attorney
and you have bank statements showing that he used Mom’s money to pay
his bookie in New Jersey. You also have receipts showing that Son #2
used Mom’s money to purchase expensive jewelry for Son #2's mistress.
Deliver copies of these documents to the Court Evaluator.
(cid:145) Provide the Court Evaluator, if appropriate, with the AIP’s family history,
information regarding family discord, and information regarding the assets
of the AIP.
(cid:145) Investigate the Facts.
(cid:145) After having met with the AIP, at least once, meet with or speak
with friends or family members whom counsel believes will give
the facts.
(cid:145) 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 from
these sources that counsel will learn many of the weaknesses of the
AIP’s position.
(cid:145) When counsel believes that counsel has the facts, counsel should
engage the AIP in a straight-forward discussion of the facts that
likely will be presented at a hearing. Listen to the AIP’s responses
and if the responses are not complete or rational, let the AIP know
that the AIP’s responses will not serve her well at a hearing. Do
not sugarcoat what the AIP likely will encounter during the Article
81 proceeding, including, but not limited to, family members lying.
(cid:145) If counsel believes that the petitioner likely will meet petitioner’s
burden by proving by clear and convincing evidence that (1) the
AIP has functional limitations (2) those functional limitations
impair the AIP’s ability to provide for her personal needs and
property management, (3) the AIP lacks understanding or
appreciation of the nature and consequences of the AIP’s
functional limitations, and (4) the appointment of a guardian is
necessary to prevent harm to the AIP, counsel should advise the
AIP of counsel’s beliefs and the basis of counsel’s beliefs.
(cid:145) After having had a straightforward discussion with the AIP,
counsel should make every attempt to persuade the AIP to accept a
settlement that would provide the least restrictive alternatives to a
guardianship.
V. THE HEARING
(cid:145) Work toward having the hearing as soon as possible. If your client is an elderly
person, the longer the hearing is delayed, the more likely the AIP will lose his/her
ability to remember. It is likely that with delay, the AIP will become
progressively worse.
(cid:145) Up to the date of the hearing, counsel would have had frequent visits with
the AIP, to be assured that the AIP remembers who counsel is, remembers
what the Court proceeding concerns, and how the AIP is to conduct
himself/herself in the Court.
(cid:145) If counsel has told the AIP what to expect during the hearing, that
oftentimes reduces some of the AIP’s nervousness.
(cid:145) 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 her
limitations or intends to address her limitations, does not get flustered,
then the AIP may be a decent witness. If the AIP rambles, do not permit
the AIP to testify.
(cid:145) If the AIP is to testify, you must prepare the AIP for cross-examination. In
addition to cross-examination, the presiding Justice is likely to ask the AIP
a number of questions.
(cid:145) If counsel discerns that the AIP is intimidated by family members or home
care attendants, or friends who have cared for the AIP, ask the Court to
permit the AIP to testify, on the record, in camera.
(cid:145) 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)
(cid:145) Jury trials are rare in Article 81 proceedings. The AIP has a right to a jury
trial. If the AIP intends to exercise the AIP’s right to a jury trial the
demand for a jury trial must be made on or before the return date
designated 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 right
to trial by jury.
(cid:145) A jury trial may be difficult for the AIP. Counsel must assess the AIP’s
stamina, emotional and psychological we–being, ability to hear unpleasant
facts, ability to sit still and attentive for long periods of time, ability to
maintain the appropriate demeanor throughout the trial as the jury
observes every movement that the AIP makes.
(cid:145) In most cases, it generally is best to avoid a full hearing. Counsel should
use all of counsel’s resources to devise creative solutions that would be the
least restrictive alternatives to guardianship.
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