Matter of J.G.
Annotate this CaseDecided on August 8, 2005
Supreme Court, Bronx County
In the Matter of the Appointment of a Guardian for J.G., a Person Alleged To Be Incapacitated.
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Alexander W. Hunter, J.
A petition has been filed for the appointment of a guardian of the person and property of J.G., an alleged incapacitated person (hereinafter known as "the person"). The Court, having been satisfied that the person was served with the order to show cause and petition by personal delivery at least fourteen days prior to the return date, and that all other persons required to be served under Mental Hygiene Law section 81.07 were timely served with the order to show cause and petition, appointed a court evaluator from Mental Hygiene Legal Service.
The hearing was held on August 1, 2005. The person was present and testified. No other witnesses testified at the hearing.
FINDINGS OF FACT
The following facts were established at the hearing:
The person is 69 years of age and he presently resides in an apartment located at 1340 Stratford Avenue, Apartment 5B Bronx, New York 10472.
The person is a retired mechanic who is divorced and has two adult children who are both engineers and reside in Cincinnati, Ohio. The person lives alone and is currently facing eviction for non-payment of rent. As the sole witness, the person testified that he suffered a stroke the previous year and lost his memory. He testified that he feels nervous and pressured because he has no money and needs money to pay for the eight medications he takes "for many different things," some of which are to help him relax.
The petitioner, at the hearing, made a statement to the court indicating that the person has exhibited erratic and aggressive behavior when he has appeared both at his law office and in court before Hon. Howard Silver in conjunction with his personal injury lawsuit. The person had to be forcibly removed from the courtroom by court officers and has appeared at petitioner's office requesting money. He becomes very angry when he is informed by petitioner that he cannot give him any money.
At the outset, this court notes that while Mental Hygiene Law §81.06(a) states that, "A proceeding under this article shall be commenced by the filing of the petition with the court by... a person otherwise concerned with the welfare of the person alleged to be incapacitated...," there appears to be an inherent conflict in this matter, namely, the petitioner in this action is the [*2]attorney representing the person in a personal injury action that is scheduled for trial in Bronx County on August 8, 2005.
As the person's attorney on the personal injury action, the petitioner has become privy to confidential information that he cannot divulge unless and until his client waives the attorney/client privilege. Accordingly, it was improper for the petitioner to present his evidence at the hearing in the manner in which he did. For instance, petitioner made a statement prior to the person's testimony wherein he attempted to demonstrate, by word and by deed, to this court that the person has no memory of certain events since suffering a stroke and behaves in an erratic and aggressive manner since he was afflicted. This non verbal communication about the person's conduct can directly impact on the person's credibility if discovered by the trial defendant. Their conversations about the merits of the pending lawsuit and the person's demand for a cash advance pending final disposition are matters that this court should not necessarily be privy to because of privilege.
This court was left with the impression that petitioner brought the application before this court for a finding that the person was incapacitated to support a potential argument before the trial judge in the personal injury matter that a Noseworthy charge, (Noseworthy v. City of New York, 298 N.Y. 76 (1948)), to the jury (wherein a lesser burden of proof would be applied) would be appropriate. Such a finding of incapacity would likely render the person "unavailable" as a witness to testify on his own behalf at his trial. This court's impression is supported by the fact that at the hearing before this court, petitioner asked the person while he was on the witness stand, if he understood that he may not recover any money from his personal injury lawsuit. The finding of incapacity might very well result in dismissal of his lawsuit. In addition, with such a finding, if the person was deposed, his deposition, for better or worse, could be read into evidence if he were found to be "unavailable" by this court.
During questioning by the petitioner at the hearing, the person indicated that he consented to the appointment of a guardian of his person and property and did not have any friends or family who could help him. In addition, the court evaluator reported that the person informed her that he wished to have a guardian appointed to assist him with his eviction situation.
There was no testimony or other evidence presented to this court to indicate that the person suffered from a mental impairment or other condition which would render him an "incapacitated person." There was no psychiatric testimony from an examining psychiatrist or other health care professional nor was there testimony by a lay witness about the person's functional limitations, if any. In addition, this court is troubled by the fact that the person's two adult children were not contacted by the petitioner and duly served with notice of this proceeding. Under Mental Hygiene Law §81.07 (g)(1), "Persons entitled to notice of the proceeding shall include: ( I ) the following persons, other than the petitioner, who are known to the petitioner or whose existence and address can be ascertained by the petitioner with reasonably diligent efforts...the adult children of the person alleged to be incapacitated..."(emphasis added). There is no indication that petitioner even attempted to ascertain the existence or addresses of the person's children with reasonably diligent efforts, particularly since the court evaluator was able to determine, after one conversation with the person, that he had two adult children residing in Cincinnati, Ohio.
Although the person consented to the appointment of a guardian, it was apparent to this [*3]court that his reason for doing so was to have someone assist him with his housing and monetary situation. There was no indication that the person understood that a finding of incapacity would deprive him of a great deal of power and control over his life. There was not enough evidence presented to establish by clear and convincing proof that the person is incapacitated and in need of a guardian of his person and property.
This court is left to wonder if the petitioner, by bringing this proceeding, was merely protecting himself from possibly violating the code of professional responsibility as he continued to prosecute his client's, the person's, personal injury action. In looking out for his own interests, was petitioner truly looking out for the person's best interest as well? Can petitioner protect himself and his client at the same time in the same proceeding? Is it in the person's best interests to be declared an "incapacitated person?" Was the relief sought in this proceeding meant to be an "aid" to the litigation of the personal injury action?
There is an undercurrent of conflict throughout this proceeding. However, even though the petitioner has chosen the incorrect vehicle to achieve his desired goals, whatever they may be, he is to be commended for his insight and concern for his client's overall health and welfare.
Due to the person's advanced age and impending eviction, the petitioner is hereby directed to contact Adult Protective Services of the City of New York, to attempt to obtain assistance for the person so that he does not become homeless.
This constitutes the decision and order of this court.
Date: August 8, 2005
J.S.C.
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