Opinion
No. 9XXXX/14.
11-20-2014
In the Matter of the Application of Carl WILLNER, Vice President of Finance Hebrew Home for the Aged at Riverdale, Petitioner, for the Appointment of a Guardian Pursuant to Article 81 of the Mental Hygiene Law for F.G. A/K/A F.G., An Alleged Incapacitated Person.
Adam D. Khan, Esq., Genser, Dubow, Genser & Cona, LLP, Melville, NY, for Petitioner. Andrew H. Kulak, Esq., Kulak & Zaslowsky, New York, NY, for Alleged Incapacitated Person.
Adam D. Khan, Esq., Genser, Dubow, Genser & Cona, LLP, Melville, NY, for Petitioner.
Andrew H. Kulak, Esq., Kulak & Zaslowsky, New York, NY, for Alleged Incapacitated Person.
Opinion
ALEXANDER W. HUNTER JR., J.
A petition has been filed for the appointment of a guardian of the person and property of F.G., an alleged incapacitated person (hereinafter known as “the person”). This court is satisfied that the person was served with the order to show cause and petition by personal delivery at least fourteen days prior to the return date and that all other necessary interested persons required to be served under Mental Hygiene Law § 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. Andrew H. Kulak, Esq. was appointed to serve as the person's counsel.
A bedside hearing was held on November 17, 2014 at the Hebrew Home for the Aged at Riverdale (“Hebrew Home”) located at 5901 Palisades Avenue, Bronx, New York 10471. The person was present at the hearing and testified. Additionally, Anne Weisbrod, social worker at the Hebrew Home, Rosemary Pignone, Assistant Controller of Resident Accounts at the Hebrew Home, Barbara Lissner, Esq., the person's former Power of Attorney and Healthcare Proxy, and Anup Kaur, Esq., the court evaluator, 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:
The person is 94 years of age and presently resides at the Hebrew Home. Prior to her admission to the Hebrew Home, the person resided at XXXXX XXXXX, New York, New York.
On January 4, 2013, the person was admitted to the Hebrew Home for rehabilitative treatment from New York Presbyterian/Weill Cornell Medical Center. She was not discharged back into the community after completing rehabilitation because there was no safe discharge plan due to a fire that occurred in her cooperative apartment. The person has been diagnosed with depressive disorder, adjustment disorder, atherosclerosis, and chronic ischemic heart disease. The person also exhibits periods of impaired short-term memory, confusion, and disorientation as to time and place.
The person is unmarried and had one son who committed suicide. There was mention made of a purported granddaughter, but no evidence of her existence was presented. The person's only known living relatives are a sister and niece who reside in California and a nephew who resides in Asia. The person has no regular outside visitors, although on several occasions real estate agents have been able to visit and present her with contracts for the sale of her cooperative apartment.
The person's income and assets consist of a bank account with a balance of approximately $240,000.00 and a cooperative apartment the value of which is unknown. The person does not receive social security benefits at this time, nor Medicaid, although the New York City Human Resources Administration took up the cost of care for the person beginning in March 2014.
Anne Weisbrod has been a social worker for the past twenty seven years. She is employed by the Hebrew Home and, as the assigned social worker for the person, sees her on a daily basis. She testified that the person was initially admitted to the nursing home for short-term rehabilitation. However, the person is unable to be discharged and is currently considered a long-term resident as her condition is likely to worsen. The social worker stated that the person needs assistance with all activities of daily living. The person is forgetful and confused at times, and could get exploited in the community. If discharged, the person would require 24–hour home care.
Ms. Weisbrod stated that in March 2013, the person underwent tests and evaluations by a psychiatrist who found that she had no capacity to make financial decisions.
Then in June 2014, the tests and evaluations conducted by a psychologist again found that the person had no capacity to make financial decisions, is confused and forgetful, and that her condition was worsening. Ms. Weisbrod also testified to the existence of a health care proxy executed on January 26, 2011, wherein the person designated Barbara Lissner, Esq. as her health care agent (Respondent's Exhibit B) and to a power of attorney executed on April 10, 2003 naming Barbara Lissner, Esq., her attorney-in-fact (Respondent's Exhibit A).
Rosemary Pignone oversees resident finances and payment sources at the Hebrew Home and testified at the hearing regarding the person's financial account with the Hebrew Home. As of June 2014, the person had an overdue balance of $279,349.25, a balance that has continued to grow at the daily rate of $625.00.
In May 2013, the person signed a check to the Hebrew Home in the amount of $50,000.00, which the Hebrew Home deposited and applied towards her account balance. However, according to the earlier testimony of Anne Weisbrod, this payment was made two months after the person was evaluated and found to have no capacity to make financial decisions. Then, shockingly, because the person refused to make any further payments to the Hebrew Home and prohibited Barbara Lissner, Esq. from paying any bills on her behalf, the Hebrew Home commenced a lawsuit against the person. On November 13, 2013, the Hebrew Home filed a summons and complaint with the Bronx County Clerk, The Hebrew Home for the Aged at Riverdale Foundation, Inc. D/B/A Palisades Nursing Home v. F.G., Index No. XXXXXX/2013. The cause of action was for breach of implied contract and unjust enrichment. The person did not respond, interpose an answer, or retain an attorney to represent her in the action.
In June 2014, once the person's liabilities were likely to exceed her assets, the Hebrew Home filed a Medicaid application on her behalf. The New York City Human Resources Administration took up the cost of care for the person retroactively beginning in March 2014. Ms. Pignone testified that because the person's capacity had diminished during the period between filing the summons and complaint and submitting the application for Medicaid, the person has thus far been unable to assist in completing the application. According to Ms. Pignone, the person's status is conditional because her Medicaid application is less than 50% complete. Indeed, if and when a guardian is appointed by this court, the guardian can then complete the Medicaid application and release the person's Net Available Monthly Income (“NAMI”) directly to the Hebrew Home.
Barbara Lissner, Esq., testified that she began representing the person in the mid–1990's and continued assisting her in matters ranging from estate planning to real estate until the person entered the Hebrew Home in 2013. Mrs. Lissner stated that the person designated her as health care proxy and attorney-in-fact and that her husband, Michael Lissner, Esq., was the back-up proxy and back-up attorney-in-fact. In June 2013, Barbara Lissner contacted the person offering her a retainer agreement to assist her after her apartment fire but the person never signed the agreement and refused any assistance from Mrs. Lissner or her husband, although she never formally revoked the health care proxy or power of attorney. Mrs. Lissner indicated that if she was appointed guardian, she would be willing to serve but stated explicitly that she would expect to be reasonably compensated. She further testified that she had no face to face contact with the person in over two years.
The person testified briefly at the hearing, indicating that she did not need a guardian and that she could manage her property without assistance. The person also made reference to the $50,000.00 check she gave to the Hebrew Home to “have the matter settled.” She stated that she knew the Lissner's but did not recall signing a Power of Attorney. Finally, the person testified that she had no preference for whom the court appoints as guardian because she “has no one.”
Anup Kaur, Esq., court evaluator, visited the person at the Hebrew Home on three occasions. The person did not remember her at each subsequent visit and did not recall what was discussed. Ms. Kaur stated that the person's sensitive financial documents were strewn around her room in such a way that any one entering her room would be able to see their contents. The person is unable to manage all of her personal and property needs due to her confusion and forgetfulness, as well as her current ambivalence and functional limitations with regard to making decisions. She is not able to file all the necessary paperwork to obtain Medicaid or other benefits and is unwilling to consent to having another party do so on her behalf.
The court evaluator testified that in her experience, nursing homes routinely look through sensitive financial documents that are left out in residents' rooms. She further stated that, once a nursing home ascertains that a particular resident has funds, they allow that resident to write checks for nursing home payments while fully aware of the resident's incapacity. Despite having knowledge of this practice, the court evaluator's report did not make mention of the two evaluations that found the person lacked capacity, the $50,000.00 check, nor the civil suit that the Hebrew Home commenced against the person after one psychiatrist found her lacking the capacity to make financial decisions. The court evaluator recommended that the court appoint a guardian of the person and property from the Part 36 fiduciary list.
CONCLUSIONS OF LAW
After examination of the documents submitted, the testimony adduced at the hearing, and the recommendation of the court evaluator, the application for the appointment of a guardian of the person and property is granted. Steven I. Lubowitz, Esq., with offices located at 700 White Plains Road, Suite 309, Scarsdale, New York 10583, telephone number: (914) 472–8069, is hereby appointed guardian of the person and property for an indefinite duration of time.
The unsettling facts and actions by the Hebrew Home that have come to light during this hearing include: a questionable payment of $50,000.00 by check to the Hebrew Home after the person was found to lack capacity by a psychiatrist; the Hebrew Home commencing a civil suit against the person, again, after she was found to lack capacity; and the surprise appearance at the hearing of the former power-of-attorney and health care proxy husband and wife attorney team, who the person repeatedly refused to accept help from, seeking to be appointed as financial guardians of the person or to have the power of attorney reinstated. It would be an understatement to declare that this court is outraged by the behavior exhibited by the interested parties-parties who were supposed to protect the person, but who have all unabashedly demonstrated through their actions in connection with the person that they are only interested in getting paid.
This court noted in In re G.S., 17 Misc.3d 303, 841 N.Y.S.2d 428 (Sup.Ct.2007), that “[t]he purpose for which this guardianship proceeding was brought, to wit, for the nursing home to be paid for its care of the person, was not the legislature's intended purpose when Article 81 of the
Mental Hygiene Law was enacted in 1993.” Id. at 306, 841 N.Y.S.2d 428. The intent behind the law has not changed.
As for the $50,000.00 check made out to the Hebrew Home by the person, at a minimum, the testimony regarding the psychological evaluations which found that the person lacked capacity to make financial decisions form enough of a basis to raise a question as to her mental capacity at the time the person made the payment. Buckley v. Ritchie Knop, Inc., 40 A.D.3d 794, 795, 838 N.Y.S.2d 84 (2nd Dept.2007). Pursuant to Mental Hygiene Law § 81.43(a) “[t]o the extent that it is consistent with the authority otherwise granted by the court, a guardian may commence a proceeding in the court which appointed the guardian to discover property withheld. The petition shall contain knowledge, or information and belief of any facts tending to show that any money or other personal property, or the proceeds or value thereof, which should be delivered and paid to the guardian, is in the possession, under the control, or within the knowledge or information of respondent whether such possession or control was obtained before or after the appointment of the guardian.”
Furthermore, although “[a] person of unsound mind but not judicially declared incompetent may sue or be sued in the same manner as any ordinary member of the community” (Huber v. Mones, 235 A.D.2d 421, 422, 653 N.Y.S.2d 353 [2nd Dept.1997] ), it does not sit well with this court that the Hebrew Home was so bold as to sue the person for unjust enrichment and breach of contract despite the fact that, as the person's social worker testified, their own doctor evaluated the person and found her to lack capacity to make financial decisions. Although the Hebrew Home did not move for a default judgment after the person failed to appear and despite the fact that the time for such a motion has expired, it nevertheless appears that this lawsuit may not have been proper.
The guardian shall afford the person the greatest amount of independence and self-determination with respect to her personal needs and property management in light of the person's functional level, understanding and appreciation of her functional limitations.
The guardian of the person is granted those powers listed under Mental Hygiene Law § 81.22 which are necessary and sufficient to provide for the personal needs of the person. These powers include the following:
a) to determine who should provide personal care or assistance;
b) to make decisions regarding the social environment and other social aspects of the life of the person;
c) to choose the place of abode for the person, including, but not limited to nursing home or community residence;
d) to apply for government and private benefits on behalf of the person;
e) to authorize access to or release of confidential records;
f) to consent to or refuse generally accepted routine or major medical or dental treatment subject to the provisions of subdivision (e) of section 81.29 of this article dealing with life sustaining treatment; the guardians shall make treatment decisions consistent with the findings herein pursuant to Mental Hygiene Law § 81.15 and in accordance with the person's wishes, including the person's religious and moral beliefs, or if the person's wishes are not known, and cannot be ascertained with reasonable diligence, in accordance with the person's best interests, including a consideration of the dignity and uniqueness of every person, the possibility and extent of preserving the person's life, the preservation, improvement or restoration of the person's health or functioning, the relief of the person's suffering, the adverse side effects associated with the treatment, any less intrusive alternative treatments, and such other concerns and values as a reasonable person in the person's circumstances would wish to consider;
(i) any and all prior and existing Health Care Proxies are hereby aned, voided and are of no legal effect. They are superseded by this order.
g) determine whether the person should travel;
h) defend or maintain any civil judicial proceeding:
(i) the guardian is empowered to defend the civil action captioned The Hebrew Home for the Aged at Riverdale Foundation, Inc. D/B/A Palisades Nursing Home v. F.G., Index No. XXXXXX/2013.
i) investigate the claim of a purported child of the person's deceased son and, if substantiated, locate the child.
The guardian of the property is granted the powers listed under Mental Hygiene Law § 81.21 which are necessary and sufficient to provide for the management of the person's assets. Those powers include the following:
a) The guardian is empowered to investigate the facts and circumstances surrounding the $50.000.00 check payment to the Hebrew Home and the commencement of a lawsuit against the person by the Hebrew Home for any evidence of financial exploitation and, with prior court approval, refer the matter to the Office of the Bronx County District Attorney and the Office of the New York State Attorney General for investigation.
b) the guardian shall be allowed to make reasonable expenditures from the person's assets, for the purpose of providing support of the person in the event the annual income is insufficient to meet the person's needs;
c) to marshal and invest the person's assets in investments eligible by law for investment of trust funds and to dispose of investments so made and reinvest the proceeds as so authorized;
d) to pay any existing debts or claims which have been proven to the satisfaction of the guardian as being properly due and owing;
e) to preserve, protect and account for such property faithfully; to retain or employ attorneys, accountants or other professionals to assist in the performance of the duties of the guardian. However, payment of fees to such persons shall only be paid with prior approval of the Court:
(i) attorney's fees to the lawyer appointed for the person for the purpose of representing her at this proceeding shall be paid from the assets of the person.
f) the guardian of the property may not alienate, mortgage, lease or otherwise dispose of real property without the specific direction of the Court obtained upon proceedings taken for that purpose as prescribed in Article 17 of the Real Property Actions and Proceedings Law, provided however, that without instituting such proceedings, the guardians of the property may, without the authorization of the Court, lease any real property for a term not exceeding five years;
(i) any and all prior and existing Power(s) of Attorney are hereby aned, voided and are of no legal effect. They are superseded by this order.
g) pay funeral expenses.
These powers constitute the least restrictive form of intervention consistent with the person's functional limitations.
The guardian of the property shall, pursuant to Mental Hygiene Law § 81.25, file a bond with sufficient sureties.
The amount of the bond shall be the total value of the person's assets.
The guardian shall receive as compensation for performing his duties that compensation as is provided under § 81.28 of the Mental Hygiene Law.
The guardian shall file an interim report and annual report, in accordance with Mental Hygiene Law §§ 81.30 and 81.31, with the Bronx County Clerk, 851 Grand Concourse, Bronx, New York.
Petitioner is directed to submit an order and judgment on notice, 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 should be filed in a timely fashion due to the exigency of these proceedings.
The County Clerk is directed to seal the file in this action in its entirety upon service on him of a copy of this order.