Matter of B.H.

[*1] Matter of B.H. 2009 NY Slip Op 52616(U) [26 Misc 3d 1201(A)] Decided on December 18, 2009 Supreme Court, Bronx County Hunter, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 18, 2009
Supreme Court, Bronx County

In the Matter of the Application for the Appointment of a Guardian for B.H. A Person Alleged To Be Incapacitated.



917XX/09



Attorney for Self-Petitioner: Sylvia Fermanian, Esq., Jacoby & Myers, LLP

Court Evaluator: Brendan P. Mulvey, law student intern at Mental Hygiene Legal Service supervised by Anup Kaur, Esq.

Alexander W. Hunter, J.

A self-petition has been filed for the appointment of a guardian of the property of B.H., an alleged incapacitated person (hereinafter known as "the person"). This Court is obviously satisfied that the person was duly served with the order to show cause and petition and that all other necessary interested persons required to be served under Mental Hygiene Law section 81.07 were timely served with the order to show cause and petition. Mental Hygiene Legal Service (MHLS) was appointed to serve as the court evaluator.

The hearing was held on December 15, 2009. At the hearing the person was present and testified and consented to the appointment of R.K., Esq., as his guardian. R.K. also testified at the hearing.

FINDINGS OF FACT

It is determined that the following findings of fact were established by clear and convincing proof upon the documentary evidence submitted and the testimony adduced:

1. The person is 32 years of age. The person presently resides with his wife and two (2) children at 777 XXX Avenue, Apartment XX, Bronx, New York 10467.

2. The person stated that he was involved in an accident on Hudson Street in New York County on April 12, 2000, while he was working and fell off a scaffold. He hit his head when he fell and suffered a brain injury. The person has a lawsuit currently pending in Bronx County. He stated that he wants a guardian to help him because he has memory problems and he needs someone to make decisions for him. The person further stated that he has attention and concentration problems, anger issues, depression and suicidal thoughts. He takes medication for his various ailments. As a result of his limitations, the person wishes to have a guardian appointed for his property. He nominated R.K., Esq., whom he met at his personal injury attorney's office, as his guardian. His personal injury attorney is M.F., Esq. He further stated that he was voluntarily asking to have R.K. appointed as his guardian. [*2]

3. R.K., Esq., stated that he was nominated by the person and his family to serve as the guardian after meeting with all of them at M.F.'s office. R.K. further stated that he had previously met with the person a few years ago at M.F.'s office when a guardianship proceeding was being contemplated. R.K. then met with the family more recently in order to see if they were comfortable with him and would be willing to nominate him as the guardian. R.K. referred to his meeting with the family as an "audition" to see if the family liked him. R.K. admitted that he has a professional relationship with M.F. and that M.F. has introduced him to other individuals in the past with a view toward R.K. being nominated their guardian.

R.K. stated that the person and his family, including the person's father, who is a "major player" in making decisions for the family, was comfortable with him and asked him to serve as the guardian. R.K. stated that he has served as a guardian in New York and he has knowledge of what is involved in the person's personal injury action. When asked by the court evaluator if he thought it would be a conflict for him to serve as the guardian in light of how he came to meet the person, R.K. indicated that he would leave that up to the court.

4. The court evaluator stated that when he met with the person, the person was not able to state why he wanted a guardian or what the guardianship proceedings were about. The court evaluator pointed out that the medical records did not indicate what the cause of his medical problems were. In one report, a medical expert states that he is unsure if the person's memory problems are due to the depression he suffers from or if they are the result of the brain injury he sustained in the accident.

The court evaluator stated that even though the person indicated that he was having difficulty managing his finances, he admitted that he has not had any problems paying his bills. The court evaluator further indicated that there may be a conflict with having R.K. appointed as the guardian since the person is claiming to be a vulnerable person who needs help and his personal injury attorney is the one who introduced him to the potential guardian. The court evaluator further stated that the person should be designated a person in need of a guardian and the guardian should have the limited power of assisting the person with the litigation only.

5. The person's income and assets at the present time, consist solely of Workers' Compensation benefits in the amount of $1,600 per month.

CONCLUSIONS OF LAW

1. Upon the testimony adduced at the hearing and the documents submitted as well as the court evaluator's recommendation, this court finds that the person is a person in need of a guardian of his property for a limited duration. This court will not accept the person's nomination of R.K. as his guardian due to the apparent conflict involved. The person met R.K. through his personal injury attorney with whom R.K. has a professional relationship. Zealously representing the interests of his proposed ward at a time when his own financial interests might be directly tied in with his associate attorney's financial interests can amount to competing and conflicting endeavors. Even the appearance of impropriety must be avoided at all costs.

The role of the guardian is to represent the person's best interests, that includes obtaining a favorable settlement for the person in his personal injury action, if the action reaches that stage. Since R.K. was introduced to the person by his personal injury attorney, it is unclear whether or not R.K. would be able to be objective since the personal injury attorney has introduced him to [*3]potential wards in the past and will likely continue to do so in the future. The financial incentive to go along with the attorney's recommendations thereby creating the likelihood of continuing this practice of generating lucrative referrals as guardian in the future cannot be discounted.

Additionally, this court is disturbed by R.K.'s reference to the fact that he was essentially "auditioning" for the role of guardian when he was called to M.F.'s office to meet with the person and his family. That there may have been a certain amount of "acting" involved in that meeting is a great possibility and further firmly establishes to this court the fact that an independent guardian should be appointed for the person and not an individual he met through his personal injury attorney who very well might have a monetary stake in the outcome of the litigation.

Accordingly, this court hereby appoints D.L., Esq., with offices located at XXX Grand Concourse, Bronx, New York 10451, as the guardian of the property of the person for a limited duration. D.L.'s powers are limited to assisting the person in the personal injury litigation and limited to the duration of the litigation. However, the guardianship can be extended beyond the duration of the personal injury litigation upon good cause shown.

2. These powers constitute the least restrictive form of intervention consistent with the person's functional limitations.

3. Parenthetically, this decision in no way constitutes an evidentiary ruling in the event that the Noseworthy doctrine (Noseworthy v. City of New York, 298 NY 76 (1948)) becomes an issue at the trial. Whether to reduce the burden of proof due to this brain injury will rest solely within the sound discretion of the trial judge.

4. The bond that is normally required pursuant to Mental Hygiene Law §81.25, is hereby waived as the guardian will not be managing any of the person's assets.

5. The guardian shall file an interim report and annual report, in accordance with Mental Hygiene Law §§81.30 and 81.31, with the Guardianship Department of Bronx County, 851 Grand Concourse, Bronx, New York. Failure to file said reports may result in the removal of the guardian.

6. Petitioner is directed to submit an order and judgment on notice, along with a copy of this decision, in accordance with Mental Hygiene Law §81.16( c) and the guardian is directed to file his designation in accordance with Mental Hygiene Law §81.26. Said order and judgment shall be submitted in a timely fashion due to the exigency of these proceedings.

Date:December 18, 2009

J.S.C.