A petition was filed by S.B., pursuant to Article 81 of the Mental Hygiene Law, on April 25, 2017, seeking visitation with and the appointment of a guardian of the person and property of her mother, E.K., the Alleged Incapacitated Person (“AIP”). An Order to Show Cause was signed May 4, 2017, directing that AIP show cause why a guardian of her person and property should not be appointed for her, and why the other requested relief should not be granted. Mental Hygiene Legal Service (3rd Dept.), Richard Wenig, Esq., of counsel, was appointed as Court Evaluator and duly appeared and gave his report as required by law. Robert L. Halpin, Esq. was appointed as Counsel to AIP and duly appeared as same. E.I., AIP’s only other child, was put on notice of the proceedings.Petitioner is represented by Scolaro Fetter Grizanti & McGough, P.C., Douglas J. Mahr, Esq. and Gina M. Glover, Esq., of counsel. This matter came on for hearing on June 6, 2017 with all the foregoing appearing. The Court conferred with all counsel, and met separately with AIP and her attorney. AIP communicated to the Court her awareness that her daughters did not get along, though she wished they would, and that she liked living in an apartment on E.I.’s property, and felt safe in her chosen living arrangement and wanted to stay there. With the consent of AIP, an Order of Visitation was entered on the record, allowing for a schedule of visitation between petitioner and AIP, confirmed by Order signed on June 20, 2017.A further hearing was held before the Court on August 10, 2017. Appearing were S.B. with her counsel Douglas J. Mahr, Esq. and Gina M. Glover, Esq.; Richard J. Wenig, Esq., the Court Evaluator; AIP, with her counsel Robert L. Halpin, Esq. and E.I., with her retained counsel, Denice Hamm, Esq. The parties, including AIP, agreed to amend the Order of Visitation, and an Amended Visitation Order was entered on September 1, 2017. A clarifying Second Amended Visitation Order was entered September 19, 2017.By and large, visitation of AIP by petitioner has not worked as set forth in the Visitation Orders.1 AIP has frequently expressed that she does not want to go forward with scheduled phone calls and visits. At first, this happened periodically. AIP has now expressed, directly and through counsel, that she does not want regularly scheduled visits with petitioner.In response to the failure of the visitation schedule established by the Visitation Orders, petitioner filed a second petition, under a new index number (2018-1106) on January 26, 2018, again requesting the appointment of an Article 81 guardian for AIP. A proposed Order to Show Cause was also submitted. The original petition was still pending, so the Court declined to sign the new Order to Show Cause and instead treated the newly filed second petition as a request by petitioner to move forward with a hearing on the original petition. The parties were all advised of this and the matter was set down for further proceedings.In the second petition, petitioner requested that AIP undergo a neuropsychological evaluation. The Court Evaluator was asked to update his original report, which he did by a supplemental letter report dated February 12, 2018. In the supplemental report, the Court Evaluator indicated that he “feel[s] a neuropsychological evaluation for AIP is warranted in order to obtain a more comprehensive assessment of her cognitive condition. The proposed evaluation should also determine what psychological effects AIP may experience if a guardian is appointed for her and if she is moved from her current residence.” A phone conference was held on February 13, 2018, at which the Court Evaluator’s recommendation for the evaluation was discussed, and all attorneys, including AIP’s counsel, agreed that AIP would undergo the recommended evaluation.Through her counsel, AIP expressed her preference that the evaluating physician be female, and the Court Evaluator undertook substantial efforts to locate an appropriate physician to undertake the evaluation. On February 26, 2018, the Court issued an Order authorizing the Court Evaluator to retain Caren Cooper Douenias, M.D., to conduct an independent neuropsychological evaluation of AIP, and granting the Court Evaluator permission to release his records to Dr. Douenias for her review. The evaluation was scheduled for March 20, 2018, but after receiving the records, Dr. Douenias declined to accept the assignment. The Court Evaluator then undertook further efforts to find another expert to perform the evaluation, but AIP, through her counsel, communicated that she no longer agreed to participate in the evaluation.The Court Evaluator updated his report by letter dated March 26, 2018, in which he withdrew his recommendation that AIP receive a neuropsychological evaluation, based primarily on her lack of consent, as well as the time and cost required to complete the evaluation.The Court issued a Scheduling Order dated April 18, 2018, directing counsel for petitioner to submit a pre-trial statement and establishing a deadline for pre-trial motions. The hearing on this matter was initially set for May 30, 2018.On May 11, 2018, AIP filed a motion to dismiss the petition, arguing she does not have limitations which impair her personal and financial needs sufficiently to require a guardian; that if she in fact does have such limitations, that the resources she has put in place are sufficient to address her personal and financial needs; and that if the Court were nonetheless to determine that a guardian is necessary, requesting that E.I. be appointed. AIP also opposes any efforts to require her to undergo a neuropsychological evaluation, and requests the Court order petitioner to pay her legal fees. AIP’s motion is supported by her own affidavit, as well an affidavit and memorandum of law from her counsel.E.I. filed a motion to dismiss the petition, and in support of AIP’s motion to dismiss, on May 11, 2018. Her motion is supported by her own affidavit, an affidavit of her counsel, and a memorandum of law.Petitioner filed a motion on May 11, 2018, requesting an Order from the Court directing AIP undergo a neuropsychological evaluation. In addition, petitioner indicates she wants AIP to testify at the hearing, and that she intends to call friends and relatives of the parties to testify both on their own relationship with her mother and their relationships with and opinion on the fitness of E.I. as caregiver and guardian for AIP. Petitioner seeks confirmation of her ability to call AIP and the other friends and family as witnesses at the hearing. Petitioner’s papers, which include an affidavit from petitioner and an affirmation and memorandum of law from counsel, also oppose the motion to dismiss made by AIP.AIP and petitioner each filed additional affirmations and memoranda of law in opposition to the other’s motions. The Court converted the original hearing date of May 30, 2018, to a motion argument date, at which oral arguments were heard on all the motions.At the motion argument, upon inquiry from the Court, the Court Evaluator stated he would now recommend a clinical assessment of AIP’s cognitive abilities, as being helpful to resolve some of the essential questions in this case. The Court Evaluator’s recommendation was confirmed to the Court and counsel by letter the next day. AIP’s counsel responded with a letter confirming AIP’s objection to an evaluation.This case presents two novel questions of first impression for the Court. First, can the Court order a neuropsychological evaluation of AIP, despite her objection? Second, does MHL §§81.16(c)(4)-(6), commonly known as Peter Falk’s Law, create an independent basis either for the appointment of a guardian, or the issuance of a protective arrangement or a single-transaction order. For the reasons set forth in this decision, the Court answers both of those questions in the negative, and grants AIP’s motion to dismiss the petition.Petitioner seeks a neuropsychological evaluation of AIP as part of her case-in-chief for the appointment of a guardian for her mother. AIP objects to such an evaluation. There are two related, but distinct, issues: one, the Court’s ability to order an evaluation over AIP’s objection; and two, the review of such results by the Court and their potential admissibility into evidence at the hearing.The Court Evaluator has now reinstated his recommendation of a cognitive evaluation of AIP. This recommendation is clearly within the purview of the Court Evaluator, whose duties include “retaining an independent medical expert where the Court finds this appropriate.” MHL §81.09(c)(7). The statute makes clear that the Court Evaluator’s ability to pursue such an evaluation requires a Court finding of appropriateness. The statute does not require the Court to accept or follow the Court Evaluator’s recommendation, only that it consider it. MHL §81.02(a)(2); Matter of Samuel S. (Helene S.), 96 AD3d 954, 957 (2d Dept 2012). MHL §81.09(c)(7) neither prohibits nor mandates Court ordered medical examinations. Matter of Kufeld, 51 AD3d 483, 484 (1st Dept 2008). Article 81 and case law is silent on whether an AIP can be compelled to undergo a medical evaluation, if recommended by the Court Evaluator and ordered by the Court.In furtherance of the statutory intent of Article 81, the Legislature imposed on the Court Evaluator myriad duties and responsibilities, including the duty to meet with the AIP. See MHL §81.09 (c)(1). The Court Evaluator is required to provide his or her personal observations of the AIP (Law Rev Comm’n Comments, §81.09, at 110). There is no concomitant statutory duty imposed upon the AIP to meet with the Court Evaluator. Matter of Aida C., 44 AD3d 110, 115-117 (4th Dept 2007). The Court cannot compel an AIP to meet with and submit to an interview by the Court Evaluator, or hold an AIP in contempt for failure to cooperate and answer questions of the Court Evaluator. Id. at 117.Compelling AIP to undergo a medical evaluation over her objection is analogous to ordering disclosure and entry into evidence of her medical records over her objection, or compelling her to testify in a guardianship proceeding.AIP enjoys the doctor-patient privilege that precludes admission of her medical records into evidence unless she has affirmatively placed her medical condition an issue. In re Rosa B.-S., 1 AD3d 355, 356 (2d Dept 2003). AIP has affirmatively raised her objection to the admission of her medical records, most recently in her counsel’s letter in response to the Court Evaluator’s updated May 30, 2018 recommendation she be evaluated. She does not place her medical condition issue merely by objecting to this petition. Id. AIP’s submission of her own affidavit in opposition to the motion by petitioner for a Court ordered medical evaluation is also not sufficient to waive the privilege (cf. In re Goldfarb, 160 Misc 2d 1036, 612 N.Y.S.2d 788 [Sup Ct, Suffolk County 1994], in which the AIP submitted an affidavit from her physician in opposition to an Article 81 petition, thus waiving the medical privilege).The law of the Second and Third Departments of New York is that an AIP cannot be forced to testify in an Article 81 proceeding. Matter of A.G., 6 Misc 3d 447, 453 (Sup Ct, Broome County 2004); In re Allers, 37 Misc 3d 418 (Sup Ct, Dutchess County 2012). Matter of Aida C., from the Fourth Department, stands for the proposition that the AIP’s right against self-incrimination does not attach in an Article 81 proceeding. Aida C., supra at 115. The Court has considered Aida C. for this proposition, but finds the reason and constitutional underpinnings of the decision in A.G. more persuasive and reflective of current legal standards. The Court is not bound by the Aida C. holding. Allers, supra at 423. Moreover, in Aida C., the Court’s additional finding that it was without authority to hold an AIP in contempt for failure to answer the Court Evaluator’s questions leaves the Court in the position of potentially entering an unenforceable Order, which this Court is disinclined to do.Petitioner cites Imhof v. Christine P., 44 Misc 3d 1210(A) (Nassau County Ct 2014) as support for the Court’s ability to order an evaluation of AIP. This case does not go as far as petitioner urges. It only confirms the Court’s ability to authorize examination by the Court Evaluator of an AIP’s medical records, notwithstanding the AIP’s physician-patient privilege. As noted by that court, the possible admissibility of those records into evidence would be determined at the hearing. Id.There is no statutory authority or case law indicating AIP must, or may be compelled to, undergo the requested evaluation. There is also the practical consideration that she will not cooperate with any such evaluation, which the Court cannot physically or legally force her to do. This analysis compels the Court to find that it cannot and will not order the requested medical evaluation of AIP.The Court’s finding that it is without authority to order a medical evaluation of AIP renders moot the issue of the extent of access to the results of such an evaluation, or their admissibility into evidence at a hearing on this matter.The primary relief requested by petitioner is Court ordered visitation by her with her mother. Petitioner urges that Peter Falk’s Law gives the Court an independent ability to direct visitation with AIP. Petitioner’s consistent position in all pleadings throughout this matter has been that the alleged need for a personal and/or property guardian for AIP is a matter of secondary concern. Petitioner has never asked that AIP be removed from her current residence due to safety concerns.Peter Falk’s Law was enacted effective July 21, 2016, as MHL §§81.16(c)(4)-(6). The placement of the Peter Falk’s Law amendments in §81.16(c) makes clear that those provisions apply only in the event a guardian is appointed. The subsection into which the provisions were inserted is titled “Appointing a guardian.” The changes were not made to §81.16(b), which provides for protective arrangements and single transactions, short of the appointment of a guardian.Petitioner cites substantial information from documents supporting and underlying the statutory change, but all that language also speaks to the AIP’s right to determine her own visitation, or the grant of that power to a guardian. Neither the statutory language, nor the supporting documents, suggests an expansion of the law to provide for Court control of visitation, absent the institution of a guardianship.Petitioner confuses her own desire to maintain a relationship with her mother through visitation, which the Court finds absolutely appropriate, with her mother’s right to make visitation decisions, either currently, or if no longer able, when she had the capability to do so. The Court is not unsympathetic to petitioner’s position, but Article 81 constrains the Court to view this from AIP’s perspective, not from her daughter’s.Consistent with the premise of Article 81 — that a guardianship should be instituted only upon the consent of an AIP, or a finding of incapacity, and then only if and to the extent necessary — this Court cannot provide independent visitation relief under Peter Falk’s Law. Even in a guardianship based on AIP’s consent, AIP would ultimately remain in control of whom she visits, as fulfillment of her wishes and desires is required in applying the least restrictive alternative standard.AIP initially consented to the Court’s entering the visitation Orders. That consent has now been withdrawn. The issue now is whether a guardianship should be put in place based on incapacity, potentially including visitation provisions pursuant to §81.16(c)(6). AIP has moved for summary dismissal of the petition for appointment of a guardian.It is black-letter law that the analysis the Court must undertake in considering an Article 81 petition is three-fold. First, is there acknowledgment of limitations in performing activities of daily living by the AIP, or a finding that she has limitations, which impair her ability to address her needs? MHL §81.02(a). If so, are there resources in place, either through efforts of the AIP, others, or statute, that adequately address those needs, obviating the need for a guardian? MHL §81.02(c). Finally, if there are limitations, which are not adequately addressed by resources, who should be appointed as guardian, and what should the scope of the guardian’s powers be, consistent with least restrictive alternative standard? MHL §81.01. See also Matter of Kurt T., 64 AD3d 819, 821-822 (3d Dept 2009); Matter of May Far C., 61 AD3d 680, 680 (2d Dept 2009).In a guardianship based on incapacity, the determination must be based on clear and convincing evidence, and requires a two-fold finding. The AIP must be unable to provide for her personal needs and also must be found to not “adequately understand and appreciate the nature and consequences of such inability.” MHL §81.02(b).AIP asserts that, even accepting the allegations of the petitioner, they do not establish, by clear and convincing evidence, that she has functional limitations with respect to her personal needs. She further asserts that even if she does have some limitations, the resources she has put in place adequately address them.The mandate of Article 81 is that the Court must consider AIP’s personal wishes, preferences and desires, allowing her to make the decisions affecting her life, to the extent she has or can. MHL §81.01; In re Matter of Cheryl B. K., 45 Misc. 1227 (A) (Sup Ct, Broome County 2012). The Court must be careful not to unduly substitute its judgment, or that of others, for AIP’s judgment. Cheryl B. K., supra; Matter of Williams, 194 Misc 2d, 793 (Sup Ct, Suffolk County 2003). Article 81 cases are replete with references to respecting the AIP’s wishes to the extent possible. Williams, supra; Cheryl B. K., supra; In re Pfluger, 181 Misc 2d, 294 (Sur Ct, New York County 1999). The Court should “approve any acts as long as it falls within the range of reasonable actions for a given situation.” Pfluger, supra, at 299. Whether to appoint a guardian is a matter of discretion requiring the Court to determine if the AIP actually needs one. Matter of Daniel TT, 39 AD3d 94 (3rd Dept. 2007).Like the case now before the Court, Cheryl B. K. was fundamentally about where the AIP should live. There, the AIP acknowledged her limitations, lack of effective resources, and need for a guardian, but deferred to the Court on which of her children should be appointed. Cheryl B. K., supra, at *2-3. Each had very different views of where and how the AIP should live. Id. at *2. It was apparent to this Court, in its interactions with the AIP, that she did have a preference of where to live. Id. This Court found “that the AIP’s right to maximum independence and her clearly and consistently stated desires does not mandate, nor frankly can it achieve, a risk-free solution.” Id. at *4. Noting that no living arrangement is free of risk, the Court found that the AIP’s choice was not an inappropriate, untoward, or unreasonable, risk for her. Id.The Court is in no way condoning the behavior of E.I. which precludes effective visitation between AIP and the petitioner. As presented by petitioner, E.I.’s position and behavior toward her sister are beyond unreasonable. The current state of affairs between the sisters is of long duration and each feels the behavior of the other unfair. The Court need not and will not address that relationship further, unless it relates to a personal need or the safety of AIP.The reality is that an Article 81 proceeding is not a solution for all ills that impact a family. Concern for a mother’s well-being and a desire to maintain or re-establish a relationship with her is clearly appropriate. The inability to obtain cooperation among the AIP’s other family members, reasonable or not, is unfortunate, but not necessarily addressable through a guardianship proceeding. In re Moulinos, 2009 NY Misc LEXIS 2412 (Sup Ct, Queens County 2009).AIP’s current living arrangement, which is a resource she put in place to address some of her personal needs, was years in the making. Before her permanent residence with E.I., she divided her time between the Ingersoll residence and the petitioner’s residence. Ultimately, she made the decision to maintain a permanent residence with E.I. In her own statements to the Court, as identified by the Court Evaluator in his reports, and as delineated in her affidavit in support of her summary judgment motion, AIP enjoys the location and surroundings of her residence; is well fed and cared for; enjoys an independent apartment, supported by the proximity and oversight of her daughter and son-in-law; interacts with large and small animals on the property; and is generally content and happy.Pursuant to MHL §81.11(c), the Court has formed its own impression of AIP and her capacity. The Court’s interactions with AIP demonstrated her satisfaction with her current living arrangement, her affirmative decision to choose it, her acknowledgment of the negative relationship between her daughters, and the limitations on her visitation with petitioner which result from her decision of where to reside, as well as her aversion to scheduled or mandated telephonic communication. AIP has established to the Court that she adequately understands and appreciates the nature of her current and potential future limitations.AIP has acknowledged some limitations and has asked the Court to respect the decisions she made on resources put in place to address them. Because AIP’s ability to communicate her basis for making her decisions continues to erode, the Court is especially reluctant to override her decisions the further she progresses from the time they were made, particularly where no current harm to her has been shown.Like the AIP in Cheryl B. K., AIP has expressed her preferences to the Court, as well as an appreciation for the impact on her relationship with petitioner as a result of that choice. The Court finds that even though there may be some risk and adverse consequence to AIP from her choice of residence, particularly in the eyes of petitioner, AIP’s decision does not present undue or unknowing risk. The allegations of petitioner, even if true, do not establish a prima facie case of current harm to AIP, or that the resources she put in place do not adequately address her personal needs.The Court declines to find that AIP’s “relationship” with her daughter is a personal need of AIP which is not being met and which is equivalent to the personal needs to be addressed by an Article 81 guardianship. MHL §81.03(f). The Court finds that AIP’s stated choices and preferences, as put in place by her, provide resources adequate to address her personal needs.Petitioner is the current agent under her mother’s Health Care Proxy. There has been no indication that AIP intends to change that appointment. Indeed, a change in that appointment would be a change in circumstances not addressed by the current petition. In addition, AIP consented to the inclusion of language in the visitation Orders confirming both her daughters may access medical information and providers. At the recent motion oral argument, counsel for AIP confirmed her continued agreement to that arrangement. Those portions of the existing visitation Order will remain in place, independent of the Court’s decision on the motion to dismiss the pending Article 81 petition.The Court has focused on AIP’s personal needs. Petitioner also alleges that AIP needs a property guardian. AIP put in place an irrevocable trust before this proceeding was commenced. The trustee of that trust is her attorney in this matter, whose previous work with AIP was the basis for the Court’s appointment of him in this proceeding. There have been no allegations that AIP was not competent to enter into the trust agreement, or that it is not an effective resource for her.There are two joint accounts between AIP and E.I., who also holds a Power of Attorney from her mother. Petitioner has never alleged AIP was incapacitated in any way coerced when she executed the Power of Attorney in favor of E.I. Petitioner has raised questions regarding E.I.’s actions as agent under a power of attorney and with respect to the joint accounts held with her mother. The Court issued an Order, at the request of AIP, to facilitate the redirection of a pension which funds one of the two joint accounts into AIP’s trust. This will allow one of the joint accounts to be closed, with the proceeds deposited into the trust. Petitioner has independent rights vis a vis her sister, under General Obligations Law §§5-1505 and 5-1510, outside the scope of an Article 81 proceeding against AIP. The Court finds AIP has put adequate resources in place to address her property needs, and also grants the motion to dismiss the petition, as it relates to a guardian of the property.At the recent oral argument, it was alleged that E.I. has utilized funds from one of her mother’s joints to pay legal fees or a retainer to E.I.’s retained counsel in this proceeding. E.I. is directed to reimburse the joint account for any such funds withdrawn by her, within thirty (30) days of the date of this Order, and provide evidence to petitioner’s counsel, and the Court, that she has done so.The motion by AIP for summary dismissal of this Article 81 proceeding is granted. The Court has considered all other arguments made by the parties and finds them to be unavailing, or rendered moot by this Decision. The relief consented to by AIP relating to access by both of her daughters to medical information and providers will remain in place as a permanent Order, which will be separately entered by the Court, to preserve the confidentiality of the parties.AIP has requested that the Court order petitioner to pay her legal fees in this matter. E.I. included the same request as part of her motion to dismiss. Where a petition is dismissed, the Court may, in its discretion, direct the petitioner pay the legal fees incurred by and for counsel for the AIP. MHL§81.10(f). The standard to be utilized by the Court in shifting fees where a petition is dismissed includes whether there is evidence the petitioner was motivated by avarice or possible financial gain; whether the petitioner has acted in good faith in commencing the petition; the sufficiency of the petition on its face; the relative assets or indigence of the petitioner and the AIP; and, any special circumstances that may exist, such as benefits to the AIP that may have resulted from the filing of the petition. Kurt T., supra, at 822-824. The statute provides for fee shifting to caution a petitioner against bringing a frivolous petition. Id.; Matter of Bonnie H., 216 NY Misc. LEXIS 4462 (Sup Ct, Dutchess County 2016).The Court finds that, though unsuccessful, petitioner was not motivated by avarice and acted in good faith in her attempt to seek an extension of the benefits provided by Peter Falk’s Law. In the Court’s view, AIP understands and respects petitioner’s desire to maintain visitation with her mother. Moreover, it appears the primary responsibility for the failure of AIP and petitioner to maintain reasonable visitation lies neither with AIP nor petitioner, but with E.I. The Court declines to exercise its discretion under MHL §81.10(f) to shift any of the fees for AIP’s counsel, or E.I.’s counsel, to petitioner.The Court has similar discretion to allocate expenses of the Court Evaluator between petitioner’s counsel and the AIP where a petition is dismissed. MHL §81.09(f). The Court is inclined to shift some of the burden of the Court Evaluator expense, should he choose to request a fee, to petitioner. Some of the Court Evaluator’s time and effort was the result of AIP’s position changes, so the Court feels it is also appropriate for her to bear some of those expenses. The Court directs that the cost of the Court Evaluator be divided equally between petitioner and AIP.Therefore, based on the foregoing it is,ORDERED, the request of S.B. for a neuropsychological evaluation of AIP is DENIED; and it is furtherORDERED, that the petitions filed by S.B. are DISMISSED WITH PREJUDICE; and it is furtherORDERED, that E.I. is directed to reimburse the joint account she shares with AIP for any funds withdrawn by her to pay her own attorney’s fees to Denice Hamm, Esq., within thirty (30) days of this Order, and to provide evidence of such repayment to all counsel and the Court; and it is furtherORDERED, that the request of AIP and E.I. to shift the payment of their legal fees to S.B. is DENIED; and it is furtherORDERED, that the Court Evaluator may submit an affidavit for fees and disbursements incurred by the Court Evaluator, if he so chooses, and such fees shall be paid by AIP and S.B. in equal parts.This Decision constitutes the Order of the Court.Dated: June 15, 2018
