Matter of G.P.

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[*1] Matter of G.P. 2012 NY Slip Op 22204 Decided on July 26, 2012 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 26, 2012
Supreme Court, Dutchess County

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.



Attorney for AIP



35 Market Street

Poughkeepsie, New York 12601


Bureau Chief

Attorney for Petitioner

Dutchess County Department of Social Services

60 Market Street

Poughkeepsie, New York 12601



Court Evaluator

Second Judicial Department

One Civic Center Plaza, Suite 304

Poughkeepsie, New York 12601 KEVIN L. WRIGHT, ESQ.

Temporary Guardian of the Property

for G.P.

P.O. Box 733

Mahopac, New York 10541

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.


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.


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 [*2]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 NY 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 AD3d 355 [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 AD3d 1344, at 1347 (4th Dept. 2009) and Matter of Aida C., 44 AD3d 110, at 115 (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 Wynn, 11 AD3d at 1015, 783 N.Y.S.2d 179)."

The case relied upon the Appellate Court in Wynn is Matter of Lyon, 52 AD2d 847 (2d [*3]Dept. 1976), aff'd 41 NY2d 1056 (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 cannot be waived when the matter is contested. (Matter of Rose B.-S., supra.)

By providing the AIP with an abundance of safeguards so as to insure that any guardianship shall only result in the least restrictive form of intervention (§81.01; §81.02[a][2]; §81.03[d]; §81.21[a]; and §81.22[a]), the legislature clearly expressed its intention that he or she have heightened rights previously absent under former Articles 77 and 78 of the Mental Hygiene Law. Those articles dealt with conservators and committees.

A decision more directly on point is Matter of United Health Services Hospitals, Inc. (A.G.), 6 Misc 3d 447 (Broome County 2004). In sum, the Court carefully dissected the issue of an AIP's right to refuse to testify based upon Federal and State Constitutional grounds, the statutory right against self-incrimination incorporated in CPLR 4501, and the important decision by our state's Court of Appeals, Rivers v. Katz, 67 NY2d 485 (1986), rearg den'd 68 NY2d 808 (1986). That decision made it clear that a person retains his or her civil rights in a proceeding where personal liberty is at stake.

One only need review the powers of a guardian for property management (§81.21) and personal needs (§81.22) to understand that a person's liberty interest is most definitely at stake once a finding of incapacity is made. Determining where the person can live, with whom the person can associate, make medical and dental decisions, determine whether the person should travel, decide the person's social environment, authorize access to or the release of confidential records, whether the person can operate a motor vehicle, make decisions with respect to the management and expenditure of one's assets, go to the very core of one's independence and ability to enjoy the pleasures of life. As one noted authority succinctly states: "Simply put, the burden is on the petitioner to prove incapacity, not on the AIP to disprove it." (1 Abrams, Guardianship Practice in New York State, Ch. 12, §VI, at 583). A petitioner has available other possibilities. Testimony can be obtained from lay witnesses, such as family members, neighbors or friends, as well as experts. (Fish, "Does the Fifth Amendment Apply in Guardianship Proceedings?", supra at 6; MHL §81.11[2].)

The determination in Heckl, which relied upon the determination in Wynn, which in turn based its decision on the determination in Lyon, was based upon a standard that had already been repealed by the enactment of Article 81. Therefore, this court is not bound by stare decisis as [*4]stated in Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663 (2d Dept. 1984).

For the foregoing reasons, the AIP's objection to being compelled to testify as a witness for the petitioner is sustained.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

July 26, 2012


Hon. James D. Pagones, A.J.S.C.

072512 decision & order

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