Guardianship

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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]).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