Maher, Matter of

• Decision Date: 27 December 1994
• Citation: 207 A.D.2d 133,621 N.Y.S.2d 617
• Parties: In the Matter of Francis E. MAHER, a/k/a Frank E. Maher, Respondent; Francis E. Maher, Jr., a/k/a Frank E. Maher, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 617

621 N.Y.S.2d 617

207 A.D.2d 133

In the Matter of Francis E. MAHER, a/k/a Frank E. Maher, Respondent Francis E. Maher, Jr., a/k/a Frank E. Maher, Jr., Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 27, 1994.

Snitow & Pauley, New York City (William H. Pauley, III, and Lyle D. Brooks, of counsel), for appellant.

Irwin F. Simon, New York City, for respondent.

Before O'BRIEN, J.P., and JOY, FRIEDMANN and KRAUSMAN, JJ.

FRIEDMANN, Justice.

On this appeal--which appears to represent a case of first impression at the appellate level--we are asked to consider the propriety of a determination by the Supreme Court, Kings County (Leone, J.), embodied in a judgment entered October 8, 1993, that the respondent, Francis E. Maher, was not incapacitated as that term is defined in the recently enacted Mental Hygiene Law article 81. Based upon this determination, the court dismissed, with prejudice, the petition for a guardian for the respondent's property which had been brought by Francis E. Maher, Jr.,

                the respondent's son.   Since the court properly applied the standards and carried out the legislative intent of Mental Hygiene Law article 81, we now affirm
                

THE FACTS OF THIS CASE

On December 11, 1992, the respondent, attorney Francis E. Maher, suffered a stroke which left him with right-sided hemiplegia and aphasia. He was admitted to St. Luke's-Roosevelt Hospital where, on December 12, he underwent surgery, inter alia, to evacuate a hematoma from the frontal portion of his brain. For some time after the operation, the respondent remained partially paralyzed and aphasic, although occasionally he was able to speak a few words and to move a bit on his right side.

By order to show cause dated December 17, 1992, the appellant commenced a proceeding pursuant to Mental Hygiene Law article 77 for the appointment of a conservator. On December 17, 1992, the Honorable Sebastian Leone, Justice of the Supreme Court, appointed Ronald M. LaRocca, Esq., as temporary receiver, and Margaret M. Bomba, Esq., as the guardian ad litem, for the respondent. The guardian ad litem filed a report dated January 4, 1993, wherein she stated that due to the respondent's physical condition "he is presently incapable of managing his own business and financial affairs", and she recommended the appointment of a conservator of his property. The guardian ad litem objected to the appointment of Ronald M. LaRocca as conservator because of a "perceived conflict of interest"--due to the fact that LaRocca also represented a hospital that owed the respondent considerable sums in attorneys' fees for services rendered in past litigation. By order dated January 20, 1993, the Supreme Court permitted LaRocca to withdraw as temporary receiver and appointed the appellant and Elizabeth Maher, the respondent's sister and for many years his office manager, as temporary receivers pending the conservatorship hearing, upon the posting of an undertaking in the sum of $1,000,000 with an authorized surety company. LaRocca subsequently became the attorney for the appellant in the instant proceeding.

On March 31, 1993--the day on which the respondent executed a power of attorney naming the appellant as his "attorney-in-fact"--the temporary receivers advised the court that the respondent's condition had "improved dramatically" and that the appellant wished to discontinue the proceeding. The guardian ad litem joined in the application, and the court granted the request orally, directing the parties to settle an order withdrawing the petition.

However, according to the appellant, on the very night of the withdrawal petition, namely March 31, 1993, the respondent's condition abruptly deteriorated, and he began to behave in an irrational and abusive manner. At about this same time, the respondent also declared his intention to marry Ms. Helen Kelly, an attorney formerly associated with his law firm, whom he had been seeing since shortly after the death of his first wife in March of 1992. It was the guardian ad litem's considered opinion that the respondent's agitation was provoked by his sons' attempts to isolate him from Ms. Kelly and other friends, as well as by their refusal to permit him access to funds of any kind.

On May 7, 1993, the appellant announced his intention to go forward with the conservatorship proceeding, based on his allegation that the respondent had become "confused and irrational". On May 19, 1993, the respondent revoked the previously-issued power of attorney in favor of the appellant, and executed a new power of attorney in favor of Irwin F. Simon, an attorney who had done per diem work for the respondent's law firm for many years. The guardian ad litem submitted her interim report dated May 20, 1993, along with a proposed order to withdraw the petition. The appellant promptly opposed the guardian ad litem's motion to dismiss, and requested a hearing to explore the need for the appointment of a conservator. The guardian ad litem submitted a "Supplemental Report" on June 1, 1993, defending herself against the appellant's charges of bias, and again urging the dismissal of the petition.

On June 1, 1993, the respondent disappeared from the home that he had shared with the appellant and another of his sons.

On June 17, 1993, the respondent married Ms. Kelly.

At the outset of the hearing, which was held on June 21, 1993, and July 16, 1993, the proceeding was converted, with the consent of all parties, to one for the appointment of a guardian for property management under Mental Hygiene Law article 81. At the hearing, testimony was taken from the respondent's sister, Betty Maher, two of his sons, George and the appellant, his speech pathologist, Susan Sachs, and Dr. Valerie Lanyi, a rehabilitation specialist who had treated the respondent at the Rusk Institute, and who had seen him in consultation as recently as June 10, 1993. Testifying for the respondent were the respondent himself, and his wife, Mrs. Helen Kelly Maher. At the conclusion of the hearing, the court found that the appellant had not carried his burden of proving by the requisite clear and convincing evidence that (1) the respondent was incapacitated, and (2) a guardian was necessary to manage his property and financial affairs.

THE ENACTMENT OF MENTAL HYGIENE LAW ARTICLE 81

The Legislature enacted Mental Hygiene Law article 81 (L.1992, ch. 698), effective April 1, 1993, to remedy the perceived deficiencies in former Mental Hygiene Law articles 77 and 78, which had authorized the appointment of a conservator for the property or a committee for the person, respectively, of individuals whose ability to care for their property was substantially impaired or who were adjudged to be incompetent.

Former Mental Hygiene Law article 78, the committee statute, required a finding of complete incompetence. That statute provided no guidance regarding what constituted incompetence, no standard governing the type of proof required to establish incompetence, and no specification respecting the range of powers assumed by a "committee of the person". However, a finding of incompetence resulted in a complete loss of civil rights and the accompanying stigma of total incapacity. Because of this stigma and loss of civil rights, the judiciary became increasingly reluctant to invoke article 78. This reluctance, together with the statutory preference for a conservator which appeared in both former Mental Hygiene Law articles 77 and 78, resulted in the virtual abandonment of the committee procedure (Koppell and Munnelly, The New Guardian Statute: Article 81 of the Mental Hygiene Law, 65 NYStBJ [No. 2] 16 [1993] [hereinafter Koppell and Munnelly].

Mental Hygiene Law article 77, the conservatorship statute, enacted in 1972, allowed for the appointment of a conservator for property only. While certain language in article 77 regarding the "personal well-being" of the conservatee suggested the possibility of using conservators of the property to exercise authority over the person of the individual, the needs of the population to be served by guardianship statutes proved so varied that the relief ostensibly offered by article 77 simply did not in fact afford either the authority or the flexibility necessary to address them all (Koppell and Munnelly).

On April 30, 1991, the Court of Appeals decided Matter of Grinker (Rose) (77 N.Y.2d 703, 570 N.Y.S.2d 448, 573 N.E.2d 536), holding, inter alia, that Mental Hygiene Law article 77 did not authorize a court to grant to a conservator the power to commit the conservatee to a nursing home. Such power to so significantly displace personal liberty, the court explained, can be granted only pursuant to Mental Hygiene Law article 78, the committee statute, "with its full panoply of procedural due process safeguards" (Matter of Grinker [Rose], supra, at 710, 570 N.Y.S.2d 448, 573 N.E.2d 536). That decision, although it clarified the respective reaches of articles 77 and 78, reinstated the courts' earlier dilemma. It further left without recourse the majority of incapacitated individuals who, although somewhat handicapped, were not hopelessly incompetent, and who, notwithstanding their need for varying degrees of assistance with their personal affairs as well as with property management, were not prepared utterly to relinquish in exchange therefor a lifetime's investment in integrity, autonomy, and dignity (see, Mental Hygiene Law § 81.01).

THE NEW FRAMEWORK ESTABLISHED BY MENTAL HYGIENE LAW ARTICLE 81

In response to this predicament, in 1992 the New York State Law Revision Commission As a threshold matter, the new legislation emphasizes 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", while at the same time permitting them "to exercise the independence and self-determination of which they are capable". Such...