A power of attorney (“POA”) allows a principal to assign their agent authority to make certain legal and financial decisions on their behalf. Because a POA can give an agent tremendous power over the principal’s affairs, claims of elder abuse in connection with a POA are common. While litigation concerning claims of abuse of a POA often occurs in the context of contested probate proceedings, special proceedings under Mental Hygiene Law (“MHL”) Article 81 (“Article 81”) and the General Obligations Law (“GOL”) increasingly involve claims that an agent is abusing a POA. This post delves into the options available under the MHL and GOL when one suspects abuse of a POA.

Advanced Directives in Guardianship Litigation. Because a guardianship under MHL Article 81 puts the alleged incapacitated person’s (“AIP”) constitutionally protected civil liberties at stake, the goal of Article 81 is to safeguard the AIP and further their best interests using the least restrictive form of intervention (see Matter of Samuel S. (Helene S.), 96 AD3d 954, 957-958 [2d Dept 2012]). Advanced directives, such as a POA or a health care proxy, being less restrictive than an Article 81 guardianship, often eliminate the need for one (see Matter of Isadora R., 5 AD3d 494 [2d Dept 2004]). Yet to obviate the need for guardianship, the advanced directive(s) must be working effectively, and the agent must have acted in the AIP’s best interests (see Matter of Rachel Z. (Jack Z.–Anna B.), 181 AD3d 805 [2d Dept 2020]).

 Appointing a guardian requires a two-pronged determination by clear and convincing evidence. First, that a guardian is “necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person,” and second, that the AIP is either incapacitated or consents to the appointment of a guardian (MHL § 81.02[a][1] and [2]; see also Matter of Carole L., 136 AD3d 917 [2d Dept 2016])).  Even if the AIP is cognitively impaired, guardianship may not be necessary if the agent acts in the principal/AIP’s best interest to assist them with their activities of daily living (e.g., cooking, cleaning, bill paying).

Once the Court appoints a guardian, it has discretion under MHL § 81.29(d) to revoke a POA if the principal was incapacitated when the POA was executed or the agent breached their fiduciary duty (MHL § 81.29[d]). In a publicized case, Matter of Goldfein v Kohler, Paulette Kohler’s building manager filed a petition to appoint a temporary guardian for her. NBC New York reported that the petition alleged the agent, under a POA and health care proxy, engaged in elder abuse and was the subject of a criminal investigation. The Supreme Court revoked the advanced directives. But on appeal, the First Department found no evidence of financial impropriety by the agent or that Ms. Kohler lacked capacity when she executed her advanced directives (Matter of Goldfein v Kohler, 221 AD3d 500 [1st Dept 2023]). The Court even noted that building staff (the staff of the same building that commenced the guardianship proceeding) impeded the agent’s efforts to repair Ms. Kohler’s apartment. So the First Department reversed and reinstated Ms. Kohler’s advanced directives. The Court found it significant that the AIP “unequivocally expressed her wishes to have [the agent] care for her.” Indeed, MHL § 81.19(c) requires the Court to appoint a person nominated by the AIP unless the Court “determines such appointment is not appropriate” (MHL § 81.19[c]; see Matter of Audrey D., 48 AD3d 806 [2d Dept 2008]).Continue Reading Abuse of Powers of Attorney

When clients ask whether they can “sue for legal fees,” the courts continue to reiterate that the answer is almost always no; that the American Rule still controls.  In our latest post, Frank Santoro discusses recent decisions in the contexts of trusts and estates litigation and guardianship litigation that speak to fee shifting and exceptions to the American Rule. 
Continue Reading The Answer is Almost Always No

Given the travel restrictions that have arisen during the COVID-19 pandemic, it is unlikely that many recently-commenced adult guardianship proceedings have led to jurisdictional disputes in courts in different states.  Pre-pandemic, however, in anticipation of commencing adult guardianship proceedings, parties moved the subjects of those proceedings from one state to another, presumably to gain a strategic advantage in forthcoming guardianship disputes. In Matter of J.D.S., New York County Surrogate Rita Mella rendered what appears to be the first reported decision addressing whether a court in New York, or another state, was the appropriate forum for a guardianship dispute concerning a person under a disability. Rob Harper discusses the decision in our latest post.
Continue Reading The Resolution of Interstate Adult Guardianship Disputes in New York

In two recent decisions, Surrogate Lopez Torres of Kings County denied petitions for guardianship under SCPA Article 17-A, demonstrating the strict circumstances under which guardians are appointed under this particular statute. Unlike under Article 81 of the Mental Hygiene Law, the court has no discretion or authority to limit or tailor the powers of a guardian under Article 17-A. Thus, in both proceedings, the court was quite cognizant of the fact that an Article 17-A guardianship is the most restrictive form of guardianship available in New York. Hillary Frommer discusses the decisions in our latest entry.
Continue Reading Article 17-A Guardianship: It is Not for Everyone