In re Allers

• Decision Date: 26 July 2012
• Citation: 37 Misc.3d 418,2012 N.Y. Slip Op. 22204,948 N.Y.S.2d 902
• Parties: In the Matter of the Application for the Appointment of A Guardian by Robert B. ALLERS, as Commissioner of Social Services of Dutchess County Department of Social Services, Petitioner, for G.P., A Person Alleged to be Incapacitated, Respondent.
• Court: New York Supreme Court

37 Misc.3d 418

948 N.Y.S.2d 902

2012 N.Y. Slip Op. 22204

In the Matter of the Application for the Appointment of A Guardian by Robert B. ALLERS, as Commissioner of Social Services of Dutchess County Department of Social Services, Petitioner, for G.P., A Person Alleged to be Incapacitated, Respondent.

Supreme Court, Dutchess County, New York.

July 26, 2012.

William F. Bogle, Jr., Esq., Corbally, Gartland & Rappleyea, LLP, Poughkeepsie, for AIP, G.P.

Janet V. Tullo, Esq., Bureau Chief, Poughkeepsie, for Petitioner, Dutchess County Department of Social Services.

Eugenia B. Heslin, Esq., Mental Hygiene Legal Service, Court Evaluator, Second Judicial Department, Poughkeepsie, Kevin L. Wright, Esq. Temporary Guardian of the Property, Mahopac, for G.P.

JAMES D. PAGONES, J.

The issue for the court's determination is whether the Alleged Incapacitated Person (“AIP”) in this guardianship proceeding under Mental Hygiene Law (“MHL”) Article 81 can be required to testify against himself at a hearing conducted pursuant to section 81.11.

BACKGROUND

The court recently completed a hearing under MHL § 81.23(a) to determine whether a temporary guardian for the property management needs of the AIP and a guardian for personal care needs were necessary. The court determined that a temporary guardian for the property management needs was warranted and denied the application for a personal care needs guardian in its Decision, Findings of Fact and Order, dated and entered July 19, 2012.

The AIP attended the hearing with his court appointed attorney. The AIP did not testify, present witnesses or submit documentary evidence for consideration (p. 2). The Court sustained the objection of the AIP's attorney when counsel for the petitioner Department of Social Services (“DSS”) attempted to call the AIP as a witness for its case in chief (Transcript, 07/13/12 at p. 3).

The parties and temporary guardian for property management have been directed to appear for a hearing on July 26, 2012 at 2:00 p.m. for the purpose of determining whether the temporary guardianship should be made permanent.

In the interim, counsel for DSS submitted correspondence supported by case law and legal analysis indicating that the petitioner intends to call the AIP to testify at the hearing. Counsel for the AIP has, in turn, responded in kind in opposition. As such, the court treats these submissions as an application for in limine determination.

DECISION

Among its findings and declaration of purpose when enacting MHL Article 81, the New York State Legislature expressed the following sentiment:

“The legislature finds that it is desirable for and beneficial to persons with incapacities to make available to them the least restrictive form of intervention which assists them in meeting their needs but, at the same time, permits them to exercise the independence and self-determination of which they are capable. The legislature declares that it is the purpose of this act 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 in account the personal wishes, preferences and desires of the 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.” (81.01).

Procedural due process safeguards are included in the statute. The AIP is entitled to proper notice, legal representation, the right to demand a jury trial, the right to be present at any hearing, present evidence and otherwise participate. Moreover, the record of any hearing and records obtained by the Court Evaluator pursuant to MHL § 81.09, Mental Hygiene Facility records and records subject to 42 CFR 2.64 and New York Public Health Law § 2785 are potentially subject to an order sealing them from the public. (Article 81 of the Mental Hygiene Law, Best Practices Manual, Chap. 2, IV(B), December 2005.)

The statute (MHL § 81.11[4] ) mandates that a hearing to determine whether the appointment of a guardian is necessary for the AIP must, unless it is established that the AIP is completely unable to participate in the hearing, be conducted in the presence of the AIP “so as to permit the court to obtain its own impression of the person's capacity.” Words of ordinary import used in a statute are to be given their usual and commonly understood meaning, unless it is plain from the statute that different meaning is intended. ( McKinney's N.Y. Statutes, Book 1, § 232.) The word impression means, “a characteristic, trait or feature resulting from some influence” ( Merriam–Webster's Collegiate Dictionary, Tenth Ed.); “an effect, feeling, or image retained as a consequence of experience” ( The American Heritage Dictionary of the English Language, Fourth Ed.). Noticeably silent from the cited statute is that the AIP is required to testify. The Court's impression of the AIP is set forth in its Decision, Findings of Fact and Order (p. 8, ¶ 20).

A determination that a person is incapacitated under Article 81 must be based on clear and convincing evidence. The petitioner bears the burden of proof. (MHL § 81.12[a] ). The court is only permitted to waive the rules of evidence “for a good cause shown.” (MHL § 81.12[b] ). The waiver provision applies only in uncontested proceedings where there is consent to the appointment of a guardian. ( Matter or Rosa B.-S., 1 A.D.3d 355, 767 N.Y.S.2d 33 [2d Dept.2003].)

Even with the protections afforded the AIP so as to implement the Legislature's stated findings and purpose, MHL Article 81 has been described as a “statute at war with itself.” (Fish, “Does the Fifth Amendment Apply in Guardianship Proceedings?”, NYLJ, 02/25/11, at 3, col. 1.) The statute “has at its core the contradictory notions of an adversarial model and a paternalistic model.” ( Id.)

The AIP in this proceeding does not consent to the appointment of a guardian. He has not affirmatively placed his condition in issue, nor has he waived any of his statutory privileges.

Counsel for the petitioner has cited Matter of Heckl, 66 A.D.3d 1344, at 1347, 886 N.Y.S.2d 295 (4th Dept.2009) and Matter of Aida C., 44 A.D.3d 110, at 115, 840 N.Y.S.2d 516 (4th Dept.2007) as the authority to compel the AIP to testify at the hearing. The Appellate Court in Matter of Heckl relied in part upon its ruling in Matter of Aida C. that an AIP's Fifth Amendment rights against self-incrimination are not implicated in an Article 81 proceeding (at 1347). The issue before the Court in that decision involved the AIP's refusal to meet and speak with the Court Evaluator, not testify at a hearing on capacity under MHL § 81.11. The Heckl decision then states:

“We likewise conclude that [the AIP's] due process rights are not violated inasmuch as the court is charged with determining her best interests ( see generally In re Wynn, 11 A.D.3d 1014 at 1015, 783 N.Y.S.2d 179).”

The case relied upon the Appellate Court in Wynn is Matter of Lyon, 52 A.D.2d 847, 382 N.Y.S.2d 833 (2d Dept.1976), aff'd 41 N.Y.2d 1056, 396 N.Y.S.2d 183, 364 N.E.2d 847 (1977). The Lyon court based its determination upon Mental Hygiene Law Article 77 which was in effect at the time. While Article 77 may have allowed for a best interests standard at that time, Article 77 was replaced by Article 81, effective April 1, 1993 ( McKinney's Consolidated Laws of New York, Book 34A, Mental Hygiene Law Article 81, Historical and Statutory Notes, at 4).

There are only two (2) references to best interests in Article 81. The first is § 81.07(g)(1)(iv) which addresses itself to who is entitled to notice of the proceeding. The second is § 81.21(b)(6)(iii) which relates to authorizing the guardian for property management to turn over a photocopy of the incapacitated person's will or similar instrument.

The appointment of a guardian under Article 81 must be based upon clear and convincing evidence (§ 81.12[a] ) as demonstrated by the petitioner. This standard is much higher than best interests. It is consistent with the stated legislative findings and purpose to afford persons who are the subject of an Article 81 proceeding the opportunity to exercise the independence and self-determination of which they are capable (§ 81.01). The rules of evidence...