NURSING HOME DENIED GUARDIANSHIP

In this case, it appears that the POA was found after the proceeding was commenced.

MATTER OF GREENFIELD, 2022 NY Slip Op 22094 - Suff. Co. Supreme Court 2022:

"This matter was commenced by petitioner Elimelech Greenfield, Administrator of Hilaire Rehabilitation and Nursing ("Hilaire" or "Petitioner") by Order to Show Cause, dated November 24, 2021, seeking an Order pursuant to Article 81 of the Mental Hygiene Law ("MHL") for the appointment of a guardian for both the person and property of the alleged incapacitated person D.C. ("D.C." or "AIP"). Upon signing the Order to Show Cause, the Court appointed Mental Hygiene Legal Service as counsel for the AIP.

EVIDENTIARY HEARING

A hearing on the merits was conducted on February 28, 2022. The AIP is sixty-three (63) years-old and has been residing at Hilaire since in or about July 2020. He suffers from schizophrenia, dementia and an altered mental status, and requires assistance with daily life activities. The testimony further demonstrated that the AIP suffers from additional cognitive deficiencies, including memory loss, and is unable to either make medical decisions on his own behalf or manage his finances. It was uncontroverted that at Hilaire the AIP's day-to-day care and personal needs are being adequately met by Hilaire in concert with Do.C., the daughter of the AIP, who is making personal decisions on behalf of the AIP pursuant to the Family Health Care Decisions Act ("FHCDA").

During the hearing, Do.C. introduced a durable general power of attorney ("POA"), executed by the AIP on June 11, 2020 (Exhibit 2). The POA appoints Do.C. to act as her father's attorney-in-fact.

At the conclusion of the testimony, the Court granted Petitioner's request to keep the hearing open to the extent that counsel may explore any collateral issues pertaining to the POA. Counsel was further permitted an opportunity to submit additional information for the Court's consideration on or before March 11, 2022. To date, neither counsel for the Petitioner nor the AIP has submitted additional documentation or requested leave to elicit additional testimony regarding the POA or any other matter related to the Petition. By e-mail dated March 24, 2022, counsel for the AIP requested that the hearing be closed.

LEGAL STANDARD

In order to prevail on its application for the appointment of a personal needs guardian or a property management guardian, the Petitioner must satisfy a two-pronged standard (see MHL §81.02[a]; Matter of Aurelia S., 186 AD3d 715, at 716-17, 127 N.Y.S.3d 301,302 (2d Dep't 2020); Matter of Linda H.A., 174 AD3d 704, 102 N.Y.S.3d 685 (2d Dep't 2019); Matter of Agam S.B.-L, 169 AD3d 1028, 1030, 93 N.Y.S.3d 415(2d Dep't 2019)). Initially, the Court must make a determination whether "the appointment is necessary to provide for the personal needs of [the AIP], including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of [the AIP]" (MHL §81.02[a][1)]). If the appointment of a guardian is deemed necessary, then the Court must decide whether the AIP "agrees to the appointment, or that the person is incapacitated" (Id. at §81.02[a][2]). A finding of incapacity requires "a determination that a person is likely to suffer harm because (1) the person is unable to provide for [his or her] personal needs and/or property management and (2) the person cannot adequately understand and appreciate the nature and consequences of such inability" (Id. at § 81.02[b]; see Matter of Carolyn S., 192 AD3d 1114, 141 N.Y.S.3d 358 (2d Dep't 2021); Matter of Carole L., 136 AD3d 917, at 918-19, 26 N.Y.S.3d 133 (2d Dep't 2016)).

In reaching its determination, the Court notes that the burden of proof remains with the Petitioner by clear and convincing evidence. "[P]rimary consideration [shall be given] to the functional level and functional limitations of the person" (see MHL § 81.02[c]). If the Petitioner satisfies its burden, any guardian appointed may only be granted "those powers which are necessary to provide for personal needs and/or property management of the incapacitated person in such a manner as appropriate to the individual and which shall constitute the least restrictive form of intervention" (Id. at§81.02[a][2]).

CONCLUSIONS OF LAW

Here, the Petitioner established by clear and convincing evidence that the AIP is incapacitated as defined in Article 81 of the Mental Hygiene Law (see MHL § 81.02[b]). However, the Court may only appoint a guardian where one (1) or more of the incapacitated person's personal or management needs are not adequately being cared for due to the functional limitations and the incapacitated person's lack of understanding or appreciation for his limitations.

The Court concludes that the appointment of a guardian to protect the personal needs and/or property management of the AIP is not necessary in the instant matter, and, as a result, the application is denied. The evidence failed to demonstrate that the AIP is likely to suffer harm due his functional limitations, his inability to provide for his own personal needs or his lack of capacity to manage his affairs. To the contrary, the AIP's needs are presently being adequately managed by Do.C., the AIP's daughter, pursuant to both the duly executed POA and the FHCDA (see Public Health Law, Article 29-cc (2010)).

Accordingly, the Petitioner is unable to satisfy its burden since the AIP is not likely to suffer harm due to his functional limitations. The Appellate Division, Second Department has held that "[e]ven if all of the elements of incapacity are present, a guardian should be appointed only as a last resort and should not be imposed if available resources or other alternatives will adequately protect the person" (Matter of Maher, 207 AD2d 133, at 140, 621 N.Y.S.2d 617 (2d Dep't 1994)). Moreover, where prior to becoming incapacitated, the AIP executes advanced directives, the Court will not appoint a guardian because the AIP "effectuated a plan for the management of his affairs which obviate[s] the need for a guardian" (Id.; Matter of Crump, 230 AD2d 850, 646 N.Y.S.2d 825(2d Dep't 1996); Matter of O'Hear, 219 AD2d 720, 631 N.Y.S.2d743 (2d Dep't 1995) (guardian not necessary for an incapacitated person who had appointed adult son power of attorney and executed living will and health care proxy)).

Based on the foregoing, the Court finds that the appointment of a guardian is not necessary to care for the personal needs or property management of the AIP. The evidence adduces that the AIP previously executed a POA that is valid and enforceable, and the AIP's daughter is further making medical decisions on behalf of the AIP which the Petitioner has indicated it will continue to honor. The Court finds persuasive and adopts the reasoning in the Matter of Stephanie Z. where the Chemung County Supreme Court denied the application and dismissed the Article 81 Petition because, similar to the instant matter, the AIP had "sufficient resources in place to address [his] limitations, through [his] placement at the Facility, the existing power of attorney and the Family Health Care Decisions Act" (see 150 N.Y.S.3d 569 (Chemung Cnty. Sup. Ct. 2021)).

In rendering the herein decision, the Court affords tremendous weight to the testimony of the court evaluator who deviated from his written recommendations after the POA was introduced for the first time at the hearing and is of the opinion that the appointment of a guardian is unnecessary. Accordingly, it is hereby,

ORDERED that the application for the appointment of a guardian for the AIP is DENIED; and it is hereby further

ORDERED that the Petition is DISMISSED; and it is hereby further

ORDERED that the court appointees shall submit a proposed order and detailed affirmation of services with thirty (30) days of the date of the herein Decision and Order."

DIVORCE - IT'S NOT BUSINESS IT'S STRICTLY PERSONAL

A divorce is personal... it can't be commenced, etc. by a guardian or agent, only by the spouse. Although one wonders why the wife in this case wanted to set aside the stipulation, only the parties to a divorce, not an agent, can make decisions, etc. 

Schneider v. Schneider, NYLJ January 22, 2021,  Date filed: 2021-01-19 , Court: Supreme Court, Nassau, Judge: Justice Jeffrey Goodstein,     Case Number: 201612/2018:

"PRELIMINARY STATEMENT Plaintiff (“Wife”) brings this Order to Show Cause seeking an Order vacating the Stipulation of Settlement dated March 17, 2020 (“Stipulation”), Attorney fees and costs and disbursements. The Defendant (“Husband”) opposes the motion in its entirety. BACKGROUND

This action was commenced by the Wife in 2018 but a Preliminary Conference was not held until January 2020. The Wife explains that the Defendant (“Husband”) lost his job and they were unable to meet their mortgage payments with Bethpage Federal Credit Union (“BFCU”). BFCU brought a foreclosure action entitled: Bethpage Federal Credit Union v. Schneider, Index Number 603660/2018. Wife explains that the foreclosure was almost completed as there was a sale/auction scheduled for March 31, 2020. Wife contends that her father, Christian Matthiessen, provided the parties a loan in the sum of $74,771.66 to bring the mortgage current.

The Stipulation acknowledged the loan to her father, but also set forth that the Husband was giving her a portion of his interest in the marital residence in exchange for an offset of child support. The Husband did not sign the Stipulation, but the Husband’s mother, using a Power of Attorney (“POA”), executed same on his behalf. Wife now requests that the Stipulation of Settlement be deemed void and she be awarded counsel fees and costs for having to bring this motion.

The Stipulation sets forth, in pertinent part as follows:

Eric Schneider has designated his mother, Diane Schneider, as his Agent with Power of Attorney which will be utilized to execute this Stipulation and the Note and Mortgage attached hereto. Said Power of Attorney is attached herewith as Exhibit “B”. Notwithstanding the utilization of the Power of Attorney, it is represented that Eric J. Schneider, the Husband, has had an opportunity to review and has approved the terms of this agreement.

(ARTICLE II, paragraph 8)

DISCUSSION

Wife argues that the POA itself is invalid and therefore, anything acted thereupon is void. Wife contends that the POA states that there are to be other agents aside from the Husband’s mother, but no other agents are designated. The POA also indicates that there shall be successor agents, as indicated by the Husband’s initials, but none were ever designated. Wife further contends that although the Husband signed the POA, his mother did not which invalidates it under the New York State General Obligations Law Sec. 5-1501B(1)(c). In addition, it was the Husband who signed the page entitled Acceptance of Agent, when it should have been his mother.

Wife further argues that the POA was being used because the Husband was entering, or had already entered, into an alcohol treatment program. She contends that the Husband was not restrained, unconscious, mentally incompetent in any other way and entered the treatment voluntarily.

As a general matter stipulations entered into between parties are upheld by the courts. In McClorey v. McClorey, 153 AD3d 1252 (2D Dept. 2017), the Appellate Division held:

Stipulations of settlement are favored by the courts and not lightly cast aside (Hallock v. State of New York, 64 NY2d 224 [1984]; see Matter of Galasso, 35 NY 319 [1974]. This is all the more so in the case of “open court” stipulations (Matter of Dolgin Eldert Corp., 31 NY2d 1 [1975] pursuant to CPLR 2104, where strict enforcement “not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process” (Hallock v. State of New York, 64 NY2d at 230). “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” (id, see Libert v. Libert, 78 AD3d 290 [2010].

But the Wife argues that the instant action and Stipulation do not fit into this general standard because this is a matrimonial action and because the POA was invalid.

In Matter of Weschler, 3 AD3d 424 (2004), the Appellate Division was presented with the issue of whether a guardian over a party can bring and maintain a divorce proceeding against the spouse of the incompetent individual. Id. The Court held, in pertinent part, as follows:

This matter is governed by the decision in Mohrmann v. Kob (291 NY 181 [1943] [construing Civ Prac Act Sec 1377]), which is wholly dispositive of the issue of whether “an action for absolute divorce [may] be maintained by the [guardian] of an insane husband against the latter’s wife.” The Court noted that whether to pursue divorce proceedings is a personal decision in which the element of volition is implicit (id. at 188), and that the husband lacked the capacity to make a competent decision. As to the powers of the guardian to maintain proceedings, it observed that “the use of the word ‘any’ did not include an action for divorce which the Legislature has always treated separately and completely” (id at 189). The Court held that absent statutory authority permitting a guardian to commence a divorce action on behalf of a ward, the courts may not assume to grant such power (id. At 190; see also, Matter of Babushkin, 176 Misc 911 [1941].

While the Court in Matter of Wechsler was dealing with a Guardianship situation, Wife argues that the POA must be treated the same way. She argues that the POA was a standardized Durable Power Of Attorney that did not become valid upon condition precedent. Wife points out the Husband’s arguments that the POA was used for a stipulation that was unrelated to the divorce proceeding and therefore enforceable as it focused on the foreclosure issues with the Marital Residence. However, the Stipulation bears the caption and the index number of the matrimonial action; the Stipulation refers to the property as the Marital Residence; the Stipulation identifies the parties throughout as Husband and Wife; the Stipulation specifically states and mentions that the Marital Residence will be distributed in accordance with the agreement and in lieu of the provision of the Domestic Relations Law; Paragraph 16 specifically states that “Wife shall be entitled to a prepaid Child Support offset made by the Husband to the Wife…which will satisfy the Husband’s child support obligation for the period of 24 months” from the date of the signing of the Stipulation; Article 2 of the Stipulation talks about the child support offset mentioned in paragraph 16 of the Stipulation.

Wife therefore argues that the Stipulation was meant for the matrimonial action. The Appellate Court in Mallory v. Mallory, 113 Misc 2d 912 (Sp. Term. 1982) held that a Power of Attorney is not valid in matrimonial actions. Specifically, the Court held that

[moveant is not one of the parties to the matrimonial action and in fact, she seeks to dissolve the parties’ married state. The public policy of New York does not permit such interference in the marital state by a third party. The fact that the movant possesses a power of attorney is of no assistance to her. It appears that on this motion…is relying on that portion of the power which give the donee the power to act in “all other matters”. This, however, does not give the donee carte blanche authority because of the statutory construction imposed by Sec. 5-1502L of the General Obligations Law, which states in pertinent part”

‘The language***’all other matters,’ must be construed to mean that the principal authorizes the agent to act as an alter ego of the principal with respect to any and all possible matters and affairs which are not enumerated in section 5-1501A to 5-1502K, inclusive *** and which the principal can do through an agent.’

While a principal might very well be bound by the acts of his agent if the agent were to purchase a car on behalf of the principal, or if the agent were to sell certain goods on behalf of the principal, such is not the case where an agent seeks to obtain a divorce for the principal. In such a situation, you are not dealing with commonplace affairs of the marketplace, but rather in an area of extremely personal concern and one over which there will be strict surveillance by our courts. (Christian v. Christian, 42 NY2d 63.) To read section 5-1501L of the General Obligations Law so as to authorize this agent to obtain a divorce on behalf of her principal would be ludicrous. The only logical application of this statute to these facts would be to exclude the obtaining of a divorce by an agent on behalf of a principal.

See also, In re Alan G.W., 51 Misc.3d 998 (Supr Ct. 2016). Wife therefore argues that even had the POA in this instant case been valid it could not be used in this matrimonial action.

As set forth above, the Husband failed to submit an affidavit with personal knowledge of the situation revolving around the signing of the Stipulation with the POA. Through an affirmation of his counsel, Husband contends that the Stipulation does not pertain to the matrimonial action and only revolves around the prevention of the foreclosure action. He further contends that if the Wife wants certain clauses to be invalidated, a motion can be made for that, but that should not affect the portion of the agreement which saved the Marital Residence. Husband further argues that Wife was represented by counsel and signed an agreement which provided her what she wanted.

The Stipulation clearly saves the Marital Residence from foreclosure with the loan from the Wife’s father, and also provides a child support offset. Further, the Wife admits that she knowingly, based upon advice from counsel, entered into the Stipulation. Her affidavit completely fails to set forth any reasoning for her request to vacate the Stipulation. She does not claim fraud, duress or unconscionability.

There is no doubt that the Stipulation is one regarding this divorce action. It is titled with this case, addresses child support in depth and specifically deals with the distribution of the Marital Residence. Accordingly, based upon the case law set forth above which delineates the clear precedent with regard to the use of a Power of Attorney in a matrimonial action, it is hereby

ORDERED, that the Stipulation is hereby VACATED in its entirety."

ESTATE PLANNING DURING THIS HEALTH CRISIS

What estate planning documents can be prepared and executed during this crisis? A morbid topic but with the death toll in New York approaching 3000, this can be a concern for those who have never considered this issue. Some of these estate planning documents can be completed without counsel, although this is not recommended. So, let’s review some of these documents. NOTE: this post has been updated as per Executive Order 202.14, dated April 7, 2020:

1. Allowing video execution of wills

2. Designation of standby guardian for parents exposed to Covid 19.

3. Tolling extended to May 7

See https://www.governor.ny.gov/news/no-20214-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

LAST WILL AND TESTAMENT


If you die without a Will, you die "intestate" and New York has codified into the law specific divisions of your estate when you die without a Will that may not conform to your wishes. New York divides your estate among a spouse and minor children. If there are none of these surviving, other members of your family may become entitled to part or all of your estate. Also, if there is no will, a Court may decide who will care for your children and their property if the other parent is not able to care for them or is unavailable. In addition, a Will allows you to give specific things to people of your choice.


BUT NOTE: You do not need a lawyer to write your Will for you or have a notary. However, your Will has to follow certain prescribed formalities, or it may not be legally binding. For this reason, many people have a lawyer draw up their Will. For example, the Will is a written document that says it is your Will and is dated and signed by you in front of two witnesses who should not be otherwise mentioned in the Will. The witnesses do not have to know what it says in your Will, only that you told them that it was your Will and they saw you sign it. The witnesses must sign your Will at the bottom and place their addresses after their signatures to complete the formality.


Although a notary is not required for a Will in New York State, in order for the probate process to be completed, the Court requires that the witnesses provide testimony confirming that the signing of the Will complied with the formalities of law. This testimony can be live or, as is most often done, by a sworn affidavit. However, what happens when one or more of the witnesses are deceased or cannot be located when the Will is being probated. That is where a notary will be required for the “Proof of will by affidavit of attesting witness out of court”, which allows the witnesses affidavit to be used to establish the validity of the Will. This affidavit is usually made when the Will is signed and is known as a “self-proving” affidavit and for that a notary is required. However, this can be done right now through video conferencing.


By Executive Order through April 18, 2020:


“Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:


The person seeking the Notary's services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;


The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);


The person must affirmatively represent that he or she is physically situated in the State of New York;


The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;


The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and


The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution."


POWER OF ATTORNEY


If one becomes incapacitated, and if one wishes to avoid his or her family the necessity of bringing a guardianship proceeding, a Power of Attorney will be helpful.  The Power of Attorney is frequently used to help in the event of a Principal's illness or disability, or in legal transactions where the principal cannot be present to sign necessary legal documents and gives an Agent that power. There are three forms: (a) A "Nondurable" Power of Attorney is often used for a specific transaction, like the closing on the sale of residence, or the handling of the Principal's financial affairs while the Principal is traveling outside of the country (b) A "Durable" Power of Attorney enables the Agent to act for the Principal even after the Principal is not mentally competent or physically able to make decisions. The "Durable" Power of Attorney may be used immediately and is effective until it is revoked by the Principal, or until the Principal's death; and (c) A "Springing" Power of Attorney becomes effective at a future time. That is, it "springs up" upon the happenings of a specific event chosen by the Power of Attorney. Often that event is the illness or disability of the Principal.

Powers of Attorney in New York State can also permit Agents, via a gift rider, to make gifts to members of the Principal's family and to non-family members. And that is why an attorney should be consulted on this document as well because a Power of Attorney can be abused, and dishonest Agents have used Powers of Attorney to transfer the Principal's assets to themselves and others.


A power of attorney does require that both the Principal and Agent sign before a Notary and as set forth above, this can presently be done through video conferencing. However, like a will, the statutory gift rider requires at least two witnesses not named as beneficiaries but unlike a will, the notary can be one of the witnesses.


HEALTH CARE PROXY/LIVING WILL


The New York Health Care Proxy Law allows you to appoint someone you trust — for example, a family member or close friend – to make health care decisions for you if you lose the ability to make decisions yourself. By appointing a health care agent, you can make sure that health care providers follow your wishes. Your agent can also decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own


This can be done without an attorney, you just need 2 independent witnesses, although it may be a good idea to consult with an attorney. Here is a link to the form and instructions:


https://www.health.ny.gov/publications/1430.pdf



END OF LIFE FORMS


New York also has Do Not Resuscitate (DNR) orders and Medical Orders for Life-Sustaining Treatment (MOLST). However, these require signatures by a medical professional. A health care proxy and a living will are traditional advance directives for adults 18 years of age and older. These documents are completed when a patient has capacity to do so and only apply when medical decision–making capacity is lost. To complement the use of traditional advance directives and facilitate the communication of medical orders impacting end–of–life care for patients with advanced chronic or serious illness, the Medical Orders for Life–Sustaining Treatment (MOLST) program was created. The MOLST contains specific and actionable medical orders that transition with the patient across health care settings. Health care proxies and living wills typically contain more general instructions and cannot be followed by EMS providers in an emergency. In contrast to a health care proxy, the MOLST applies as soon as a patient consents to the orders in it and a physician, or nurse practitioner signs it. It is not conditional on a determination that a patient has lost medical decision–making capacity. The MOLST program is based on the belief that patients have the right to make their own health care decisions, including decisions about life–sustaining treatment, to describe these wishes to health care providers and to receive comfort care while wishes are being honored.


For more information, see https://www.health.ny.gov/professionals/ems/policy/10-05.htm



CONCLUSION


In this crisis, we are thinking of our health and mortality and if we in that frame of mind, we should also  make sure that our estate planning documents carry out our healthcare and testamentary wishes (although New York’s probate Courts are closed to anything other than emergency matters for the foreseeable future).


 Of course, these documents should be prepared by an attorney and executed under an attorney’s supervision. And the big concern among attorneys in this crisis has been the inability to perform full will executions through video conferencing. There is a listserv with the New York State Bar Association where some attorneys believed that the bolded language below allows for the virtual acknowledgment by the testator:


“The Trusts and Estates Section of the New York State Bar Association set up a committee to address digital wills in 2019 to evaluate legislation passed in other states, the recent uniform law for digital wills and the complexities surrounding remote witnessing and remote notarization.  In response to the current health crisis, a special task force of the NYSBA Trusts & Estates Law Section has been created to address the execution of wills and attesting witness affidavits.   This task force is comprised of members of the NYSBA Trusts & Estates Law Section, Elder Law and Special Needs Section and the New York City Bar Association.  Calls have been made for emergency legislation to be enacted to allow for virtual witnessing of wills and virtual notarization of the attesting witness affidavits.  The Task Force is acutely aware of the challenges faced by our profession and our clients and we are also mindful of the pressure on the New York State legislature at this unprecedented time.  The task force has been charged with legislative proposals for prospectively (and perhaps retroactively) addressing this crisis.  In the meantime, the following are best practice suggestions:


1.            Skype or other means of communication can be used by an attorney with the testator to review the will and review proper will execution requirements.  EPTL 3-2.1 requires that the will be signed in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by the testator or at the testator's direction. The testator can either sign the will in the presence of the attesting witnesses or acknowledge his or her signature affixed to the will to each attesting witness separately.  So long as two attesting witnesses sign the will within thirty (30) days after the testator signed it, and the remainder of the will execution requirements of EPTL 3-2.1 are met, the will should be in proper form and considered duly executed.  An attorney can even supervise the will execution via Skype, telephone, or other means of communication to assist in proper execution.


2.            If a beneficiary under the will or a beneficiary-distributee of the testator is an attesting witness to the will, be mindful of the interested witness rules provided in EPTL 3-3.2.  An interested witness will not affect the validity of a will under this rule, but the disposition to such witness may be impacted.  A disposition or appointment made to an interested witness is void unless there are two other attesting witnesses who receive no beneficial interest or appointment under the will.  There is, however, an exception for an interested witness who is also the testator's distributee.  In that case, the interested witness will be entitled to the lesser of their intestate share or the amount devised to such person under the testator's will.


3.            The attesting witness affidavits do not need to be executed by the attesting witnesses at the same time the will is signed-they can be signed after the testator executes his or her will.  These witness affidavits can even be signed after the testator's death pursuant to SCPA 1406.  Any deviation to a "typical" will execution ceremony, such as an attorney supervising the will execution via Skype, telephone, or other means of communication, should be mentioned in the attesting witness affidavit when it is later signed.”


Some attorneys believe that the prudent decision would be to delay any wills, POAs or other advance directives signings until more clarity comes down from the state government concerning virtual witnesses. Others believe that the provisions of estate preparation documents should be deemed as essential services, allowing certain persons to go into the office to have the will reviewed, signed, witnessed and notarized.


NOTE: with respect to trusts, New York law provides that: “Every lifetime trust shall be in writing and shall be executed and acknowledged by the person establishing such trust and, unless such person is the sole trustee, by at least one trustee thereof, in the manner required by the laws of this state for the recording of a conveyance of real property or, in lieu thereof, executed in the presence of two witnesses who shall affix their signatures to the trust instrument” Thus, either before a notary or two witnesses.

WHEN A CHILD ADMITS MOM OR DAD TO A NURSING FACILITY

Here the son was sued by the facility in the principal amount of $44,210.11 for room, board, and skilled nursing care services which it provided to the defendant's mother from January 29, 2010 through August 31, 2010. An admission agreement was signed by the defendant as "responsible party" and plaintiff claimed a breach by defendant's "failing to pay the moneys due toward the cost of his mother's care at the facility from his mother's assets and resources; to the extent those assets and resources may have been insufficient to cover the cost of her care, the plaintiff claims that the defendant breached the terms of the admission agreement by failing to timely file for Medicaid, leaving a gap in coverage for which the plaintiff has not been compensated."

JOPAL AT ST. JAMES, LLC v. Manning, 2019 NY Slip Op 32720 - NY: Supreme Court, Suffolk County, September 5, 2019:

"While a nursing facility may not require a third-party guarantee of payment to the facility as a condition to admission or a continued stay in the facility, it may, as here, require an individual who has legal access to a resident's income or resources to provide payment from such income or resources, without incurring personal liability (see 10 NYCRR § 415.3[b][1], [6]).

The plaintiff established its prima facie entitlement to summary judgment on its cause of action for breach of contract by demonstrating that the defendant accepted personal responsibility to utilize his access to his mother's funds to pay for her care, and then breached his contractual obligation by failing to apply available assets toward her care (see Troy Nursing & Rehabilitation Ctr. v Naylor, 94 AD3d 1353, 944 NYS2d 323, lv dismissed 19 NY3d 1045, 954 NYS2d 6 [2012]). The defendant, in opposition, failed to raise a triable issue of fact. The record, however, does not reveal the amount of his mother's funds to which he had access prior to her death. Irrespective of whether the defendant may also have failed to comply with his Medicaid obligations, he is liable only to the extent that her assets would cover outstanding payments owed to the plaintiff (see Prospect Park Nursing Home v Goutier, 12 Misc 3d 1192[A], 824 NYS2d 770 [2006]). Accordingly, the plaintiff is entitled to summary judgment, albeit only on the issue of liability (see Troy Nursing & Rehabilitation Ctr. v Naylor, supra; cf. Presbyterian Home for Cent. NY v Thompson, 136 AD3d 1421, 25 NYS3d 513 [2016]), and the defendant's cross motion—which is addressed solely to the cause of action for breach of contract, notwithstanding the breadth of relief requested in the notice of cross motion—is correspondingly denied."

NOTARY AND WITNESS FOR POWER OF ATTORNEY GIFT RIDER?

Like a will, the statutory gift rider requires at least two witnesses not named as beneficiaries. SCP 1406 allows the will to be self-proving by an affidavit of attesting witness acknowledged before a notary. But the notary cannot be one of the witnesses. Not so with the statutory gift rider. General Obligations Law Section 5-1514 (9)(b):

"9. To be valid, a statutory gifts rider to a statutory short form power of attorney must:

(b) Be signed and dated by a principal with capacity, with the signature of the principal duly acknowledged in the manner prescribed for the acknowledgment of a conveyance of real property, and witnessed by two persons who are not named in the instrument as permissible recipients of gifts, in the manner described in subparagraph two of paragraph (a) of section 3-2.1 of the estates, powers and trusts law. The person who takes the acknowledgment, under this paragraph, may also serve as one of the witnesses. (italics provided)"

POWER OF ATTORNEY AND/OR SKLAR POWER OF ATTORNEY

The standard General Power of Attorney will provide under the section "Grant of Authority" the following:

"To grant your agent some or all of the authority below, either (1) Initial the bracket at each authority you grant, or (2) Write or type the letters for each authority you grant on the blank line at (P), and initial the bracket at (P). If you initial (P), you do not need to initial the other lines. I grant authority to my agent(s) with respect to the following subjects as defined in sections 5-1502A through 5-1502N of the New York General Obligations Law:

..........

( ) (K) health care billing and payment matters; records, reports, and statements;

........."

Although HIPAA was intended to protect consumers, the law may be abused by agency or health provider or insurance staff as a way to obstruct the medical advocate of an individual access to  health information, or to refuse to provide even general information regarding agency practices.

The new Power of Attorney form in New York State contains a clause giving the agent the authority to examine, question, and pay medical bills on behalf of the principal, so long as the principal has executed a health care proxy.

In addition, it is possible to execute a POA exclusively for purposes of executing HIPAA releases, known as a "Sklar POA. See NY Public Health Law §18(1)(G)

POWER OF ATTORNEY ISSUES

In this case, the names mentioned are an attorney who had himself named as power of attorney and an attorney who prepared the papers. This case is interesting as it describes some potential ethical issues when counsel is asked to prepare these documents.

Matter of Mitchell 2016 NY Slip Op 50853(U) Decided on June 3, 2016 Supreme Court, Kings County Pesce, J.:

"Respondent argues in his post trial memorandum, that this Court should find that the $122,000 in gifts to Mr. Shadoian were proper, because: 1) it is movant's burden to show that the IP was suffering from mental infirmity at the time the gifts were made and that movant had offered no proof as to the IP's debilitated mental status on the specific dates the checks were issued ( See Lee v. Bank of NY, 294 AD2d [2d Dept 2002]; Gala v. Magarinos, 245 AD2d [2d Dept 1997]) and 2) despite the fact that the gifts were made to a fiduciary, there is nothing in the record to indicate that the gifts resulted form undue influence or that they were based on anything other than gratitude, affection and esteem. (See Matter of Hedges, 100 AD2d 586, [2d Dept 1984]).

Movant concedes that, typically, the burden of proving undue influence rests upon the party alleging it. (See Allen v. La Vand , 213 NY 322, 323 [1915]). Movant, however, advances [*6]the convincing and well established argument that if the donee of a transaction has a fiduciary or confidential relationship with the donor, the burden of proof shifts to the party receiving the benefit to prove by clear and convincing evidence that the transaction was fair and free of undue influence. (See Matter of Connelly, 193 AD2d 602 [2d Dept 1993]). Movant cites that this axiom was just reiterated by the Court of Appeals in Matter of Aoki, 27 NY3d 32 (2016) , where the court shifted the burden to the grantee that held a fiduciary relationship with the grantor.

However, an exception to that general rule provides that where a fiduciary relationship exists between the parties, the law of constructive fraud will operate to shift the burden to the party seeking to uphold the transaction to demonstrate the absence of fraud (see Matter of Aoki, supra, 39 citing Matter of Greiff, 92 NY2d 341, 345 [1998]).

It is uncontroverted that at the times of the gifts, to wit: January 23, 2012, April 24, 2012, June 15, 2012 and September 19, 2012, Mr. Shadoian was in two fiduciary relationships with the IP. He was the IP's attorney-in-fact and her health care proxy, and therefore it is Mr. Shadoian's obligation to prove that the IP freely and voluntarily gifted $122,000.00 to him. Under New York law, it is Mr. Shadoian's burden to prove that the IP made $122,000.00 of cash gifts to him knowingly and voluntarily, without the taint of undue influence.

To prove that the IP freely and knowingly made these gifts, Mr. Shadoian called Mr. Gagliardi to testify. Mr. Gagliardi's testimony did nothing to prove that the gifts were voluntary. He spoke to the IP briefly over the phone and met her one time for 30 minutes while the IP was in the company of Mr. Shadoian. Additionally, when Mr. Gagliardi telephoned the IP and she answered the phone and the two spoke, we do not know if Mr. Shadoian was present and influencing the IP. Mr. Gagliardi's testimony was too threadbare to carry much weight. He spent so little time with the IP that his impression cannot be given much weight, especially in light of the fact that Mr. Gagliardi was never informed that APS had intervened in the IP's life, that the IP had been prescribed Alzheimer medication, that she had been hospitalized on several occasions due to her own and Mr. Shadoian's neglect.

Moreover, Mr. Gagliardi failed to make even elementary inquiries as to the actual size of the IP's estate, her medical condition, her social and familial history. Contrary to usual practice, he allowed an unrelated person, designated as beneficiary, to orchestrate the completion and execution of the Will. As to the validity of the Will, it will have to be decided on another day in another court, if the Will ever arrives back in the United States from its sojourn in Iran.Also as Mr. Shadoian's case, two letters, purportedly from medical personnel, placed into evidence by Mr. Shadoian, stating the IP was fine are likewise given little to no weight. These providers were unaware of IP's hospitalizations or history with APS, and their statements are devoid of any medical basis for their declarations."

NY FAMILY HEALTH CARE DECISIONS ACT

When there is a lack of advance planning and health directives, New York's Family Health Care Decisions Act (FHCDA)[1] establishes the authority of a patient's family member or close friend to make health care decisions for the patient in cases where the patient lacks decisional capacity and did not leave prior instructions or appoint a health care agent. This "surrogate" decisionmaker would also be empowered to direct the withdrawal or withholding of life-sustaining treatment when standards set forth in the statute are satisfied.

For more information, visit the Family Health Care Decisions Act Information Center

TODAY IS NATIONAL HEALTHCARE DECISIONS DAY

Today is the 7th Annual National Healthcare Decisions Day!

Talk about advance care planning. Free info and tools at: www.nhdd.org

Or see an attorney for estate planning, etc.

DEALING WITH PROBLEM ADULTS - LEGAL RIGHTS

To conclude, I will refer to earlier blogs regarding the use of power of attorney, living will, health care poxy, MOLST, will, trusts etc. Finally, I point out that ethical considerations do exist for attorneys who draft these documents for a "problem adult" at the request of a family member or other person: the news have been full of stories about predatory actions taken i.e. the Brooke Astor trial of her son and there are groups who are quite opposed to the concept of guardianship, etc. One of the more prominent groups is NASGA and their website is as follows:

http://www.stopguardianabuse.org/

FINAL THOUGHTS ON POWERS OF ATTORNEY

When representing a principal, the main disadvantage of a Power of Attorney is that it is subject to abuse: although there are now new rules requiring accounting,the use of monitors, execution rules, etc., it still does not have the same ongoing court supervision of the attorney-in-fact as there is in a guardianship. If the attorney-in-fact abuses his or her authority and acts improperly, a court may step in and take action. However, in many cases, the damage is already done, and it is difficult to undo it. Of course, you should take great care in selecting your attorney-in-fact. But I also see the great divisions it creates in families wherein one member is being made attorney-in-fact unknown to other family members. My suggestion is the following: after meeting with the principal, ascertaining their wishes and before executing a Power of Attorney, counsel should notify all family members that would receive notice under the rules regarding the appointment of a guardian. A meeting should be scheduled with all in attendance wherein the principal expresses their wishes and explains why they are executing the Power of Attorney, why a particular person was selected as attorney-in-fact, why certain powers were granted, etc. Let all family members discuss it among themselves and with the principal. Afterwards, then let the principal make their decision. Does this make the process costly? Yes, but, in the long run, it is worth it. I view the Power of Attorney as I view a prospectus for securities under federal securities laws and rules: notice and disclosure is the key!

THE SMGR OF THE POWER OF ATTORNEY

Under the new rules, and in response to the potential abuse inherent in the Power of Attorney, under the new rules, if the principal wishes to delegate to the agent the authority to make gifts, they must first initial this intent on the Power of Attorney form itself AND ALSO EXECUTE A SEPARATE STATUTORY MAJOR GIFTS RIDER (SMGR), which must be signed by the principal before a notary AND WITNESSED BY TWO WITNESSES, NEITHER OF WHOM IS A POSSIBLE RECIPIENT OF THE GIFTS. “Major gifts” are those in excess of $500/year and which do not continue the custom of the principal. NY G.O.L. 5-1514. Powers such as the authority to create, amend, revoke or terminate an intervivos trust, create joint accounts, modify “totten trust” beneficiaries and change beneficiaries on insurance or retirement accounts must now be included in the SMGR, as they are no longer encompassed within the powers accorded “insurance” or “retirement accounts”. See also NY G.O.L. 5-1501L. But does this truly prevent the abuse of a Power of Attorney?

THE THREE FORMS OF POWERS OF ATTORNEYS

There are three forms of Powers of Attorney, viz., "Nondurable," "Durable," and "Springing" Powers of Attorney. A "Nondurable" Power of Attorney takes effect immediately. It remains in effect until it's revoked by the principal, or until the principal becomes mentally incompetent or dies. It is often used for a specific transaction, like the closing on the sale of a residence, or the handling of the principal's financial affairs while the principal is traveling outside the country. A "Durable" Power of Attorney enables the agent to act for the principal even after the principal is not mentally competent or physically able to make decisions. The "Durable" Power of Attorney may be used immediately, and is effective until it is revoked by the principal, or until the principal's death. A "Springing" Power of Attorney becomes effective at a future time. That is, it "springs up" upon the happening of a specific event chosen by the principal, and spelled out in the Power of Attorney. Often that "springing" event is the illness or disability of the principal. It will frequently provide that the principal's physician will determine whether the principal is competent to handle his or her financial affairs. A "Springing" Power of Attorney remains in effect until the principal's death, or until revoked by a court. Now under the new law, there is a “springing event” to all Powers of Attorney as the date on which an agent's signature is acknowledged is the effective date of the Power of Attorney as to that agent; if two or more agents are designated to act together, the power of attorney takes effect when all the agents so designated have signed the power of attorney with their signatures acknowledged. NY G.O.L. § 5-1501B subd. 3 (a). Of course, if the Power of Attorney is a “Springing Power of Attorney (“to take effect upon the occurrence of a date or contingency”), the occurrence of the contingency is also required. NY G.O.L. § 5-1501B subd. 3 (b). Both "Durable" and "Springing" Powers of Attorney are frequently used to plan for a principal's future incapacity or disability and loss of competence resulting, for example, from Alzheimer's Disease or a catastrophic accident. And by appointing an agent under a "Durable" or "Springing" Power of Attorney, the principal is setting up a procedure for the management of his or her financial affairs in the event of incompetency or disability. Which is better for the principal?

POWER OF ATTORNEY AND GUARDIANSHIP

Under the new Power of Attorney Law, not only must the agent account to the principal, but, as set forth in NY G.O.L. 5-1501A, if a guardian is later appointed, the agent shall account to the guardian rather than to the principal. This I find interesting because most attorneys will recommend making a Power of Attorney in order to make guardianship proceedings unnecessary arguing that a Power of Attorney is much less expensive and much less stressful than the court-appointed guardian process. Article 81 of New York’s Mental Hygiene Law authorizes a court to appoint a guardian to manage the personal and/or financial affairs of a person who cannot manage for himself or herself because of incapacity and not all Article 81 guardians in New York have the same powers. Guardianship orders are specifically tailored so that the powers that are granted to the guardian are those that are specifically necessary to meet the needs of the person who is incapacitated. For example, a person may not be able to pay their bills or manage their money, but may have the ability to make healthcare decisions. In such a case, a court might appoint a guardian with powers that are limited to financial management. So this raises a question: what is best for the principal? To execute a broad Power of Attorney while they have the capacity or have a guardian appointed when necessary?

MORE ON POWERS OF ATTORNEYS

Before we discuss the new Power of Attorney rules which begin on September 1 of this year, let us discuss the general rules of what a Power of Attorney is. A Power of Attorney is an agreement between two parties: a principal and an attorney in fact. The attorney in fact need not be an attorney at law (a lawyer). A Power of Attorney gives the attorney in fact rights to act in the principal's place. They are, in effect, fiduciaries of their principals. Powers of Attorney may be general, limited, or special. They are usually written documents, and New York imposes special requirements on their form or substance. General Powers of Attorney allow agents to take any legal action their principals may take. For example, the agent could open or close bank accounts in the principal's name, invoke or waive the principal's contractual rights, or buy or sell stocks for the principal. In New York, even a general Power of Attorney is not unlimited due to statute or court precedent. A principal may grant a limited Power of Attorney by placing restrictions in the Power of Attorney. New York also allows special Powers of Attorney for certain situations. Most often, special Powers of Attorney are used to appoint people to make medical decisions on the principal's behalf when the principal is incapacitated - a health care proxy. New York also has the Standby Guardian Designation, discussed in an earlier blog. Normally, a Power of Attorney only remains effective as long as the principal is alive and competent to make decisions. Principals may, however, grant durable Powers of Attorney that persist after they are no longer able to make their own decisions.

THE NEW POWER OF ATTORNEY RULES

On September 1, 2009, a new statutory Power of Attorney will be in effect. NY G.O.L. 51501, Chap. 644 of Laws of 2008. This new statutory form changes the manner of execution and the content of the previous statutory form. It continues the dual use of a Power of Attorney: financial access to a principal’s accounts while he or she has capacity as well as an effective tool for future planning if the principal becomes incapacitated. By setting forth the fiduciary duty of the agent to the principal, the new statutory form is intended to eliminate abuses committed by agents under the previous statutory Powers of Attorney and includes provisions intended to safeguard individuals from those who overreach via Power of Attorney. Even if the extensive provisions in the form do not stop the unauthorized use of funds, the statute is clear that agents must keep records and document their transactions. This requirement may prove a deterrent to those who wish to serve only for their own self interest. I just attended a seminar on this and will discuss more - and realize that Power of Attorneys executed prior to September 1 will still be effective but the fiduciary duties will now apply to them as well as the special proceeding that may be initiated to clarify the validity of the document executed prior to September 1, 2009