In re Orshansky, 02-PR-170.

• Decision Date: 15 August 2002
• Docket Number: No. 02-PR-170.,02-PR-170.
• Parties: In re Mollie ORSHANSKY; Jane Pollack, Appellant.
• Court: D.C. Court of Appeals

804 A.2d 1077

In re Mollie ORSHANSKY; Jane Pollack, Appellant.

No. 02-PR-170.

District of Columbia Court of Appeals.

Argued June 25, 2002.

Decided August 15, 2002.

George A. Teitelbaum, Washington, DC, for appellant.

George T. Masson, Washington, DC, for appellee Harry J. Jordan.

Tanja H. Castro, with whom Thomas D. Leland was on the brief, Washington, DC, for appellee Mollie Orshansky.

Before FARRELL, RUIZ, and GLICKMAN, Associate Judges.

GLICKMAN, Associate Judge:

Jane Pollack appeals from the appointment of Harry J. Jordan as general guardian and conservator for her aunt, Mollie Orshansky. In addition to challenging the probate court's jurisdiction, Ms. Pollack principally contends that the court abused its discretion when it rejected Ms. Orshansky's own arrangements for her incapacity and, against her and her family's wishes, appointed Mr. Jordan, a District of Columbia lawyer who had no prior relationship with her. Mr. Jordan, joined by Tanja H. Castro, the attorney whom the probate court appointed to represent Ms. Orshansky, argues that Ms. Pollack has no standing to pursue this appeal. As well, both Mr. Jordan and Ms. Castro ask us to uphold the probate court's jurisdiction and affirm its rulings on the merits.

This controversy began when George Washington University Hospital petitioned the Superior Court to appoint a guardian and a conservator for Ms. Orshansky, whom the Hospital had admitted on a referral from the Adult Protection Services division of the District's Family Services Administration. Before the date of the hearing on the petition, Ms. Pollack removed Ms. Orshansky from the Hospital without its knowledge and took her to New York. Informed of this development, the court held an emergency hearing and appointed Mr. Jordan to serve as Ms. Orshansky's temporary guardian and conservator to protect her interests pending final resolution of the petition. At a subsequent hearing, after taking testimony and argument from Mr. Jordan, Ms. Pollack and others, the court granted the petition and finalized Mr. Jordan's appointments.

The proceeding in this case, called an intervention proceeding, is governed by the District of Columbia Guardianship, Protective Proceedings, and Durable Power of Attorney Act of 1986, D.C.Code § 21-2001 et seq. (2001). Under the Guardianship Act, the Superior Court may, upon petition, appoint a guardian and a conservator for an "incapacitated individual," i.e., "an adult whose ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that he or she lacks the capacity to manage all or some of his or her financial resources or to meet all or some essential requirements for his or her physical health, safety, habilitation, or therapeutic needs without court-ordered assistance or the appointment of a guardian or conservator." D.C.Code § 21-2011(11). The appointment of a guardian and a conservator is an extraordinary intervention in a person's life and affairs, and the Act lays out standards and procedures that are designed to ensure careful consideration and respect for the rights of the subject of the proceeding. The ultimate decision is committed to the informed discretion of the probate court judge.

We hold that Ms. Pollack has standing to appeal the decision of the probate court and that the probate court had jurisdiction to entertain the intervention petition. On the merits, we reverse. We hold that the probate court abused its discretion and violated statutory requirements for the appointment of a guardian and a conservator by not taking proper account of Ms. Orshansky's own plans and wishes and by making the appointments without sufficient information regarding Ms. Orshansky's needs and best interests or other sufficient factual foundation.

In order that our holdings may be understood, we summarize the facts and proceedings below in greater detail than usual for an appellate opinion.

I. FACTUAL BACKGROUND AND PROCEEDINGS BELOW

A. The Decision to Hospitalize Mollie Orshansky

Mollie Orshansky is eighty-seven years old. She lived by herself in the District of Columbia for forty years. She has no family in the District; her closest relatives are her two sisters and her nieces and nephews, all of whom live in the New York City area. Ms. Orshansky came to the attention of Adult Protection Services (APS) in early November 2001, when the property manager of the building in which she resided reported finding her in need of assistance. Over the next few weeks, Dr. Deborah Meyers, an APS social worker, paid several visits to Ms. Orshansky. On each visit, Ms. Orshansky came to the door dressed in the same soiled and dirty pajamas. Dr. Meyers saw that Ms. Orshansky was malnourished, frail, and in "a self-neglecting state." Her hygiene was poor and her apartment was unsanitary. During another visit, on December 11, Dr. Meyers found Ms. Orshansky outside in the cold, still dressed in her pajamas, and unable to find her apartment. Dr. Meyers tried to arrange for Ms. Orshansky to see her doctor and accept a home care aide, but she refused to cooperate.

When Dr. Meyers visited Ms. Orshansky again on December 19, she discovered her lying helpless on the floor of her apartment. Ms. Orshansky was malnourished, dehydrated and filthy. APS transported her to George Washington University Hospital, where she was admitted. Two days later, on December 21, the Hospital filed a petition in the Probate Division of Superior Court for the appointment of a permanent general guardian and a conservator. The Hospital supported its petition with an examiner's report signed by Dr. Katherine Goodrich, a hospital physician who is Board-certified in internal medicine. In her report, Dr. Goodrich stated that she examined Ms. Orshansky on December 20 and diagnosed her as suffering from a progressive global dementia. Dr. Goodrich stated that as a result of her dementia, Ms. Orshansky is "unable to care for herself," "unable to make sound judgments [about] her medical or physical care," and "unable to do her activities of daily living." The report contains no other detail about Ms. Orshansky's condition, degree of impairment, prognosis or treatment needs, but it recommends a nursing home as the most appropriate living arrangement for her. So far as appears from the record, Dr. Goodrich, who is apparently neither a gerontologist nor a psychiatrist, is the only doctor who has examined Ms. Orshansky and found her to be incapacitated.¹

Upon receiving the Hospital's petition, the probate court scheduled an initial hearing for February 12, 2002, and appointed Harry Jordan, an attorney on the court's fiduciary list, to represent Ms. Orshansky. Formal notice of the petition and the hearing was given to Ms. Orshansky and to members of her family in New York City.

B. Removal of Mollie Orshansky from the Hospital

On January 2, 2002, Ms. Orshansky's niece, Jane Pollack, and her nephew-in-law, Eugene Shapiro, met in Washington with Dr. Meyers and representatives of the Hospital to ask that their aunt be released into their care. They presented a "health care proxy"² that Ms. Orshansky had executed some eighteen months earlier, in July 2000. In the proxy, Ms. Orshansky appointed Ms. Pollack to be "my health care agent to make any and all health care decisions for me, except to the extent that I state otherwise." The proxy stated that it "shall be in effect when and if I become unable to make my own health care decisions," and "shall remain in effect indefinitely" unless Ms. Orshansky revoked it. Despite the presentation of this proxy, APS opposed Ms. Orshansky's release, and the Hospital refused to discharge her while its petition for the appointment of a guardian and a conservator was pending.

Unable to obtain her aunt's release, Ms. Pollack extended her stay in Washington. Over the next few weeks, she lodged numerous complaints with the Hospital that her aunt was not receiving adequate care, therapy or stimulation. As a result, Ms. Pollack charged, her aunt was suffering bruises, sores and urinary tract infections, and was growing weaker and more confused every day she remained in the Hospital.

On January 21, frustrated by what she perceived as the Hospital's indifference to her complaints, Ms. Pollack decided that, as her aunt's health care agent, she had to take matters into her own hands. Without telling the Hospital of her intentions, Ms. Pollack removed Ms. Orshansky and took her to New York City. From there, she called the Hospital to report what she had done.

C. The Emergency Hearing

Upon learning that Ms. Pollack had removed Ms. Orshansky without its authorization, the Hospital notified APS, the police and Mr. Jordan. It then filed an amended petition, informing the probate court that Ms. Orshansky "is incapacitated and was fraudulently removed from [the Hospital] by her relatives and moved to New York State." The amended petition requested the immediate appointment of a temporary guardian and conservator to protect Ms. Orshansky and her assets.

On January 25, Judge Christian held an emergency hearing on the amended petition. In attendance were representatives of the Hospital, Mr. Jordan on behalf of Ms. Orshansky, Dr. Meyers of APS, and George Teitelbaum, an attorney who appeared on behalf of Ms. Pollack. Dr. Meyers testified regarding APS's involvement with Ms. Orshansky, the January 2 meeting with Ms. Pollack and Mr. Shapiro, and the events leading up to the emergency hearing. Dr. Meyers stated that Eugene Shapiro was present when she made her first visit to Ms. Orshansky's apartment in November, and Ms. Orshansky "lashed out at him verbally" at the time and adamantly wanted him to leave. Dr. Meyers also testified that APS had told the family that it was investigating "everything that is connected with Ms. Orshansky," and had asked for financial information which the family refused to supply. Dr. Meyers asked the court to intervene...