An important case has recently been decided and should be thoroughly reviewed by those who practice Article 81 Guardianship. In a bitterly split panel of the Appellate Division, First Department, the majority affirmed sanctions imposed on an attorney in an Article 81 guardianship hearing. The majority, however, reduced the amount of sanctions imposed. Justice Andrias wrote the majority opinion for In Re Kover, 2015 N.Y. Slip Op 7802 (N.Y. App. Div., 2015) in which he found that two affirmations submitted by the Alleged Incapacitated Person’s (AIP) attorney were “replete with misrepresentations, omissions, distortions, and statements taken out of context.” Justice Saxe wrote a scathing dissenting opinion stating that “[t]he majority has extended the law of sanctions in the First Department beyond any existing precedent to the point where it will dangerously chill zealous advocacy and impair the independence of the trial bar.” Despite the disagreement on the issue of sanctionable conduct, both the majority and dissent agreed on what is necessary for consent in an Article 81 Guardianship hearing. The majority, however, states that consent was before this Court and therefore not an issue to be decided on this appeal. The facts of In Re Kover, are as follows:
In July 2012, Self Help Community Services, Inc. petitioned for a Guardian to be appointed over the person and property of Dr. Dworecki, a 94 year old woman. Dr. Dworecki obtained representation who submitted opposition to the guardianship petition on behalf of Dr. Dworecki. Included in this opposition was an affidavit of a treating physician which stated that Dr. Dworecki was competent and did not need a guardian. Dr. Dworecki’s longtime friend Edward Muster had a valid power of attorney and Dr. Dworecki specifically stated she wanted Edward to control her finances. Mr. Muster was also listed as the Executor and primary beneficiary of Dr. Dworecki’s will. Dr. Dworecki had no immediate family and Mr. Muster had been Dr. Dworecki’s friend and financial advisor for over 22 years.
On August 9, 2012 a conference was held with counsel for each party and the court evaluator to discuss the structure of the proposed guardianship. Afterwards a proceeding was held on the record in which Dr. Dworerki agreed to the appointment of an “interim special guardian for a trial period.” This trial period was for five months.
On August 10, 2012 the court issued an order appointing Sabrina Morrisey, Esq. as interim special Guardian and stated that Mr. Muster could continue to assist Dr. Dworecki in paying bills but revoked Mr. Muster’s power of attorney.
From August 2012 until January 2013, Ms. Morrissey helped implement many different forms of assistance for Dr. Dworecki. A status conference was held on January 16, 2013 in which Dr. Dworecki’s appearance was waived due to inclement weather. At this status conference Dr. Dworecki’s attorney stated that:
“I think that the temporary guardianship would be easier for our client to accept and consent to if there were a joint temporary guardianship with Ms. Morrissey and Mr. Muster under those circumstances. And Mr. Muster has indicated that he would defer to Ms. Morrissey on all matters of the person with respect to that. And they could deal with that as a joint capacity. Our client certainly, if Mr. Muster and Ms. Morrissey, together, given the relationship that has developed, were indicated to be the joint temporary guardians, [Dr. Dworecki] would consent to that arrangement.”
This consent is where many problems in the case stemmed from.
Both the majority and dissent agree that consent cannot be obtained from counsel without the AIP present. The majority states:
“We agree with the dissent that a court should not accept counsel’s representation that the AIP has consented to the appointment of a guardian where the AIP is not present. Pursuant to article 81 of the Mental Hygiene Law, the court must first determine whether the AIP has the requisite capacity to consent, and must the make a finding of the AIP’s agreement to the terms of the guardianship, on the record.”
The dissent states:
“In order to obtain the consent necessary to avoid the need of an affirmative adjudication of incapacity before instituting a guardianship, the court must inquire of the client herself to ensure that she agrees to the guardianship and its terms. This, the court failed to do, relying instead on counsels presumed consent on behalf of his client.”
Another important point in the history of this case, was the consent agreed to by counsel to the AIP appeared conditional on Mr. Muster continuing as the financial “power of attorney” for Dr. Dworecki’s funds. However, the trial court, removed Mr. Muster stating that he had a conflict of interest as executor and primary beneficiary of Dr. Dworecki’s Last Will and Testament. The terms of the proposed order had Mr. Muster as nominal co-guardian limiting him to paying the day to day expenses of Dr. Dworecki but no longer controlling the rest of her finances, a job which Mr. Muster had done for the previous 22 years. It also appears there was no showing of misfeasance or malfeasance by Mr. Muster.
In the case at bar, both the majority and dissent agree that the court erred in appointing a guardian based on counsels “consent.” The majority however stated that the consent was not the basis of appeal and said the issues before them where sanctionable conduct by the AIP’s attorney and the denial of attorney’s fees for the AIP’s attorney.
In conclusion, three clear points have come from this decision. First, an attorney cannot consent to a guardianship on behalf of the AIP if the AIP is not present. Second, a court must determine if the AIP has the requisite capacity to consent. Finally, the terms in which an AIP consents must be on the record. The dissent believes that the issue of consent should be decided in this appeal while the majority believes this issue was not raised in the appeal. Where the majority and dissent differ is on the events that follow the “consent” from the AIP’s attorney. The majority believes that the AIP’s attorneys conduct was sanctionable for fraudulent and misleading statement while the dissent believes that the AIP’s attorney was zealously advocating for his client.
This article was published in the Brooklyn Barrister (http://www.brooklynbar.org/wp-content/uploads/Barrister_Feb_2016_BBA-Web.pdf )