You are here: / Mental Hygiene Law
,

PETITIONER SEX OFFENDER WAS ENTITLED TO A HEARING WITH LIVE WITNESSES AT WHICH HE MAY TESTIFY IN THE ANNUAL REVIEW OF HIS CONFINEMENT UNDER THE MENTAL HYGIENE LAW; SUPREME COURT HAD ORDERED A HEARING CONDUCTED BY WRITTEN SUBMISSIONS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner-sex-offender was entitled to a live hearing on his petition for discharge from confinement pursuant to the Menta Hygiene Law. Supreme Court had ordered that the hearing be conducted by written submissions:

… Mental Hygiene Law § 10.09 (d) requires the court to “hold an evidentiary hearing as to retention of [an offender] . . . if it appears from one of the annual submissions to the court under [§ 10.09 (c)] . . . that the [offender] has petitioned, or has not affirmatively waived the right to petition, for discharge.” Petitioner here has petitioned for annual review, and he is therefore entitled to an evidentiary hearing with live witness testimony where he “may, as a matter of right, testify in his . . . own behalf, call and examine other witnesses, and produce other evidence in his . . . behalf” … . Matter of Charles L. v State of New York, 2023 NY Slip Op 05075, Fourth Dept 10-6-23

Practice Point: Supreme Court had ordered the annual review of petitioner-sex-offender’s confinement be conducted by written submissions. Petitioner, however, pursuant to the Mental Hygiene Law, was entitled to a hearing with live witnesses at which he may testify.

 

, ,

THE PARTY SEEKING A CONTEMPT FINDING DID NOT DEMONSTRATE PREJUDICE FROM THE FAILURE TO COMPLY WITH ONE COURT ORDER AND THE OTHER COURT ORDER DID NOT EXPRESS AN UNEQUIVOCAL MANDATE; CONTEMPT FINDING REVERSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the evidence did not support a contempt finding against the trustee of a special needs trust (Wiltshire). The guardian of the incapacitated person (Daniels) demonstrated that Wiltshire failed to provide an accounting and failed to promptly pay certain expenses, but the proof of Wiltshire’s alleged failure to comply with a court order was not sufficient to support a contempt finding. For instance, it was not demonstrated that Daniels was prejudiced by Wiltshire’s inaction:

“In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed. Moreover, the party to be held in contempt must have had knowledge of the court’s order. . . . Finally, prejudice to the right of a party to the litigation must be demonstrated” . “The burden of proof is on the proponent of a contempt motion, and the contempt must be established by clear and convincing evidence” … .

Here, Daniels did not establish that she was prejudiced in any way by Wiltshire’s failure to furnish an accounting of the SNT in violation of the … so-ordered stipulation … . Moreover, the [other] order directed Wiltshire to pay Daniels’s guardianship fees from the SNT, but did not provide a deadline for the payment. That order thus did not clearly express an unequivocal mandate which would support holding Wiltshire in contempt of court … . Matter of Serena W., 2023 NY Slip Op 03797, Second Dept 7-12-23

Practice Point: A party seeking a contempt finding must demonstrate prejudice from the failure to comply with a court order.

Practice Point: In order to support a contempt finding, the subject order must include an unequivocal mandate which was not obeyed.

 

, , , ,

THE PROVISION OF MENTAL HYGIENE LAW SECTION 10 THAT ALLOWS A COURT TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE PETITIONER, WHO HAD BEEN RELEASED TO A STRICT AND INTENSIVE SUPERVISION AND TREATEMENT (SIST) REGIMEN, IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT IS NOT UNCONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this habeas corpus proceeding, determined the “provision of Mental Hygiene Law § 10.11(d)(4) that directs the court to determine whether there is probable cause to believe that a respondent in a proceeding pursuant to Mental Hygiene Law article 10 is a dangerous sex offender requiring confinement based upon a review of the allegations in a petition for confinement and any accompanying papers does not violate that respondent’s federal or state rights to due process.” The court further determined the issue raised here might recur so the appeal was not rendered moot by the petitioner’s release “to a regimen of strict and intensive supervision and treatment (… SIST):

Mental Hygiene Law § 10.11 permits the court to revoke a regimen of SIST upon a violation of SIST conditions and sets forth the required procedures for such a revocation … . The statute provides, as relevant here, that if a parole officer has “reasonable cause to believe” that a sex offender requiring SIST has violated a condition thereof, the offender can be taken into custody for five days for an evaluation by a psychiatric examiner, and the attorney general and the Mental Hygiene Legal Service (hereinafter MHLS) are to be promptly notified … . The attorney general may then file a petition for confinement within five days after the offender is taken into custody, which petition must be served promptly on MHLS, and counsel must be appointed for the offender … . If a petition for confinement is filed, “the court shall promptly review the petition and, based on the allegations in the petition and any accompanying papers, determine whether there is probable cause to believe that the [offender] is a dangerous sex offender requiring confinement” … . There is no provision permitting the offender an opportunity to be heard prior to the probable cause determination. Once the probable cause determination is made, the offender may be retained pending the conclusion of the proceeding … . “Within thirty days after a petition for confinement is filed . . . , the court shall conduct a hearing” to make a final determination, but the failure to commence the hearing within that time period does not result in dismissal of the petition or “affect the validity of the hearing or the determination” … . People ex rel. Neville v Toulon, 2023 NY Slip Op 02015, Second Dept 4-19-23

Practice Point; The provision of Mental Hygiene Law section 10 that allows a court to determine whether there is probable cause to believe petitioner, who had been released to a SIST regimen, is a dangerous sex offender requiring confinement is not unconstitutional.

Practice Point: Although at the time of this appeal in this habeas corpus proceeding petitioner had been released to a SIST regimen, the issue is likely to recur so the “exception to the mootness doctrine” doctrine was invoked.

 

THE MENTAL HYGIENE LAW DOES NOT REQUIRE A TESTIMONIAL HEARING BEFORE THE REMOVAL OF A GUARDIAN FOR AN INCAPACITATED PERSON (FIRST DEPT).

The First Department noted that removal of a guardian does not require a testimonial hearing:

The Mental Hygiene Law does not support appellants’ contention that they were entitled to a testimonial hearing in this case before being removed. Mental Hygiene Law § 81.35 provides that a guardian may be removed when she or he “fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just” … . A motion on notice, served on the persons specified in Mental Hygiene Law § 81.16 (c), is required but there is no statutory right to a hearing … . This relaxed requirement stands in distinction to Mental Hygiene Law § 81.11 (a), which provides that the petition for the appointment of a guardian for an alleged IP [incapacitated person], whose liberty interests are at stake, “shall be made only after a hearing” … . The reason a guardian has “no due process right to a full hearing,” nor is a “full blown” hearing necessary for their removal, is that a guardian has no “property interest” to protect … . Matter of Edgar V.L., 2023 NY Slip Op 01360, First Dept 3-16-23

Practice Point: Although the Mental Hygiene Law requires a testimonial hearing before the appointment of a guardian for an incapacitated person, no hearing is required for the removal of a guardian.

 

,

​ THE GUARDIAN OF THE PERSON AND PROPERTY OF THE INCAPACITATED PERSON (IP) AND THE ATTORNEY APPOINTED TO REPRESENT THE IP WERE PROPERLY REMOVED AND DISCHARGED WITHOUT A TESTIMONIAL HEARING, WHICH IS NOT REQUIRED BY THE MENTAL HYGIENE LAW; THE GUARDIAN AND THE ATTORNEY FAILED TO INVESTIGATE THE BONA FIDES OF THE IP’S MARRIAGE AND THE PRENUPTIAL AGREEMENT (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gische, determined the temporary guardian of the person and property (Mock) and the attorney appointed represent the incapacitated person (IP), Edgar, were properly removed and discharged without a testimonial hearing. The opinion is rich with allegations Edgar was being victimized financially which cannot be fairly summarized here:

On October 2, 2018, Alison Loew, the sister and only sibling of Edgar Valentine Loew, brought a petition for the appointment of an article 81 guardian for her then 74-year-old brother. The petition alleged that Edgar, who is wealthy, but suffers from mental health issues and has some physical limitations, was the victim of systematic financial exploitation by Rachida Naciri. …

A court evaluator (Britt Burner) was appointed on October 2, 2018, appellant Gary Elias was appointed as Edgar’s attorney, and appellant Judy S. Mock was appointed as Edgar’s temporary guardian of the person and property. * * *

The Mental Hygiene Law does not support appellants’ contention that they were entitled to a testimonial hearing in this case before being removed. Mental Hygiene Law § 81.35 provides that a guardian may be removed when she or he “fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just” … . A motion on notice, served on the persons specified in Mental Hygiene Law § 81.16 (c), is required but there is no statutory right to a hearing (see Mental Hygiene Law §§ 81.16[c]; 81.35). This relaxed requirement stands in distinction to Mental Hygiene Law § 81.11 (a), which provides that the petition for the appointment of a guardian for an alleged IP, whose liberty interests are at stake, “shall be made only after a hearing” … . The reason a guardian has “no due process right to a full hearing,” nor is a “full blown” hearing necessary for their removal, is that a guardian has no “property interest” to protect … .

Although a guardian cannot be summarily removed in the absence of a fully developed record or without any findings, and a hearing may be required where material facts are disputed … , here the parties had not only fully briefed [the] motion, but the salient facts were also known to the court and largely undisputed. A decision to remove a guardian of the person and property of an IP is within the sound discretion of the trial court … . Matter of Loew, 2022 NY Slip Op 06436, First Dept First Dept 11-15-22

Practice Point: The guardian and the attorney appointed to represent the incapacitated person (IP) were properly removed and discharged without a testimonial hearing, which is not required by the Mental Hygiene Law. The guardian and the attorney failed to investigate the bona fides of the IP’s marriage and prenuptial agreement.

,

AFTER THE INCAPACITATED PERSON’S DEATH, THE GUARDIAN OF THE PROPERTY IS ALLOWED TO PAY ADMINISTRATIVE EXPENSES, BUT NOT CLAIMS UNRELATED TO ADMINISTRATIVE EXPENSES, FROM THE GUARDIANSHIP ESTATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the guardian (Mock) of the incapacitated person’s (Lillian’s) property should not have been ordered to pay a claim out of the guardianship estate after Lillian’s death. Only administrative expenses can be paid out of the guardianship estate:

Mock’s authority as the guardian of Lillian’s property expired with Lillian’s death (see Mental Hygiene Law § 81.36[a][3] …), “and the property in the guardianship account that remained after the fees of the guardianship were paid would normally have passed to her estate” (… see SCPA 103[19]). Mental Hygiene Law § 81.44(e) allows a guardian to retain, “pending the settlement of the guardian’s final account, guardianship property equal in value to the claim for administrative costs, liens and debts.” The legislature intended to allow guardians “a reserve to cover reasonably anticipated administrative expenses,” but did not intend to allow guardians “to retain funds following the death of an incapacitated person for the purpose of paying a claim” … . Inasmuch as the $255,000 sought by the petitioner is unrelated to the administration of Lillian’s guardianship, Mock lacked the authority to make payment to the petitioner from the guardianship estate … . Accordingly, the Supreme Court erred in granting the petitioner’s cross motion and in directing Mock to pay the petitioner the sum of $255,000 from the guardianship estate. Matter of Lillian G. (Steven G.–Gary G.), 2022 NY Slip Op 05087, Second Dept 8-31-22

Practice Point: A guardian of an incapacitated person’s property may only pay administrative expenses from the guardianship estate after the incapacitated person’s death. Here the court should not have ordered payment of a claim unrelated to administrative expenses from the guardianship estate.

 

, , , , ,

PETITIONER SOUGHT TO DEMONSTRATE THAT HIS DECEASED MOTHER DID NOT HAVE THE CAPACITY TO EXECUTE A DOCUMENT DESIGNATING RESPONDENT AS HER AGENT TO CONTROL THE DISPOSITION OF HER REMAINS; PETITIONER SUBMITTED PROOF HIS MOTHER HAD BEEN DIAGNOSED WITH DEMENTIA, BUT DEMENTIA IS NOT THE EQUIVALENT OF INCOMPETENCE OR INCAPACITY; THE PETITION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, held that the petition pursuant to Public Health Law 4201 for a determination concerning the disposition of petitioner’s deceased mother’s remains should have been dismissed. The deceased was also the mother of the respondent in this action. The issue was whether the deceased had the capacity to execute a document designating the respondent as her agent to control the disposition of her remains. The proceeding under the Public Health Law is handled like a motion for summary judgment. Although petitioner demonstrated his mother was diagnosed with dementia in 2014, dementia is not the equivalent of incompetence:

Every dispute relating to the disposition of the remains of a decedent shall be resolved . . . pursuant to a special proceeding” (Public Health Law § 4201 [8]). Upon the return date of the petition in a special proceeding, “[t]he court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised,” and “may make any orders permitted on a motion for summary judgment” (CPLR 409 [b] …). “[E]very hearing of a special proceeding is equivalent to the hearing of a motion for summary judgment” … . …

Even assuming, arguendo, that the heightened contractual capacity standard is applicable in this case … , we conclude that petitioner failed to establish that the decedent was incapable “of comprehending and understanding the nature of the transaction at issue” … .  Although petitioner submitted evidence establishing that the decedent had been diagnosed with dementia in 2014, “there is no presumption that a person suffering from dementia is wholly incompetent” … . “Rather, it must be demonstrated that, because of the affliction, the individual was incompetent at the time of the challenged transaction” … . Here, petitioner failed to set forth any evidence that the decedent was without capacity to execute the designating document in September 2017 … . Matter of Hurlbut v Leo M. Bean Funeral Home, Inc., 2022 NY Slip Op 04439, Fourth Dept 7-8-22

Practice Point: A proceeding pursuant to the Public Health Law to determine the disposition of the remains of a decedent is in the nature of a special proceeding and is handled like a summary judgment motion. Here the petitioner did not raise a question of fact about whether the decedent had the capacity to designate the respondent as her agent to control the disposition of her remains. Proof decedent had been diagnosed with dementia did not raise a question of fact about decedent’s competence or capacity.

 

,

PETITIONER, WHO IS MILDLY AUTISTIC, DEMONSTRATED (1) HE IS NOT DISABLED WITHIN THE MEANING OF SURROGATE’S COURT PROCEDURE ACT (SCPA) ARTICLE 17-A AND (2) HE UNDERSTANDS AND IS ABLE TO MANAGE HIS FINANCIAL AFFAIRS; THE PETITION TO DISSOLVE THE GUARDIANSHIP OF HIS PROPERTY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined petitioner, who is mildly autistic, demonstrated he did not have a disability within the meaning of Surrogate’s Court Procedure Act (SCPA) article 17-a and, therefore, his petition to dissolve the guardianship of his property should have been granted. Petitioner held a job was up-to-date on all his bills:

The petitioner established that he did not have a disability as defined in SCPA article 17-A, as his evidence showed that his ability to “understand and appreciate the nature and consequences of decisions” was not impaired (id. § 1750-a[1]). The petitioner presented medical evidence that his autism was mild and that he did not have significant deficits in adaptive functioning. He also showed, through his own testimony, that he understood the consequences of decisions in financial and other areas. * * *

The petitioner understood, for example, how his rent was calculated, the importance of staying up to date with his bills, what expenses were nonessential and could be eliminated when he needed to conserve money, how to open a bank account, how to obtain advice from the bank on improving his financial situation, and that he would not have direct access to his trust funds if the guardianship were dissolved and that those funds were placed into a pooled trust. Matter of Robert C. B., 2022 NY Slip Op 04301, Second Dept 7-6-22

Practice Point: The medical records demonstrated petitioner’s mild autism is not a disability within the meaning of the Surrogate’s Court Procedure Act. Petitioner demonstrated through his own testimony that he understands and is able to manage his financial affairs. The petition to dissolve the guardianship of his property should have been granted.

 

, , , ,

IN ACCORDANCE WITH THE NURSING HOME REFORM ACT (NHRA), THE ADMISSION AGREEMENT SIGNED BY THE NURSING-HOME RESIDENT’S GRANDDAUGHTER DID NOT IMPOSE PERSONAL LIABILITY UPON THE GRANDDAUGHTER FOR PAYMENT OF THE COSTS OF THE RESIDENT’S CARE; THE GRANDDAUGHTER’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED AND THE BREACH-OF-CONTRACT COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the admission agreement signed by the nursing-home resident’s granddaughter (who was appointed guardian of her grandfather’s property) did not impose personal liability upon the granddaughter for payment of the cost of her resident’s care (provided by the plaintiff facility). Therefore, plaintiff should not have seized the granddaughter’s personal funds. The default judgment in favor of plaintiff should have been vacated, and the breach-of-contract complaint should have been dismissed:

… [t]he admission agreement in this case is subject to the Nursing Home Reform Act (hereinafter the NHRA). As relevant here, the NHRA provides that “[w]ith respect to admissions practices, a nursing facility must . . . not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility” … . However, that prohibition “shall not be construed as preventing a facility from requiring an individual, who has legal access to a resident’s income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident’s income or resources for such care” … .

The admissions agreement set forth the relevant contractual obligations of the granddaughter, and the admissions agreement demonstrates as a matter of law that it did not render the granddaughter a “third party guarantee of payment” … .”The admission[s] agreement merely required the [granddaughter] to facilitate payment from the . . . resident’s available income and resources, and only to the extent that the [granddaughter] had access to such income and resources and only if [the granddaughter] could do so without incurring any personal financial liability” … . …

.. [T]he plaintiff failed to adequately allege a breach of the granddaughter’s contractual obligation to facilitate payment to the plaintiff from the resident’s “income or resources” … . Nassau Operating Co., LLC v DeSimone, 2022 NY Slip Op 04029, Second Dept 6-22-22

Practice Point: The Nursing Home Reform Act (NHRA) prohibits holding a third-party who signs an admission agreement personally liable for the costs of a resident’s care. The agreement may only obligate the third party to pay the costs from the resident’s assets (over which the third party exercises control).

 

, , ,

BOTH THE WIFE AND THE JUDGE WERE AWARE OF THE HUSBAND’S MENTAL ILLNESS IN THIS DIVORCE ACTION IN WHICH THE HUSBAND WAS PRO SE; WHEN THE HUSBAND FAILED TO APPEAR FOR THE INQUEST AN INQUIRY INTO WHETHER A GUARDIAN AD LITEM SHOULD BE APPOINTED SHOULD HAVE BEEN HELD (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should have conducted an inquiry into whether a guardian ad litem should be appointed for the husband in this divorce action. The husband did not appear at the inquest and both the wife and the judge were aware of the husband’s significant mental illness:

Judgment was entered in this divorce proceeding after the husband, pro se, failed to appear for an inquest. At the time of the inquest, both the wife and Supreme Court were aware that the husband had been diagnosed with a significant mental health condition, which resulted in episodes during which the husband was demonstrably unable to care for himself or otherwise protect his interests. Indeed, at the conclusion of the inquest, the court explicitly acknowledged that the husband’s absence was likely attributable to his mental health. Thus, before entering judgment upon the husband’s default, there should have been an inquiry into whether a guardian ad litem was necessary (see CPLR 1201, 1203 …). Because there was no inquiry, the judgment must be vacated and the matter remanded for further proceedings, including, if necessary, an inquiry into the husband’s current capacity … . Richard v Buck, 2022 NY Slip Op 03335, First Dept 5-19-22

Practice Point: Here both the wife and the judge in this divorce action were aware of the husband’s mental illness. When the husband, who was representing himself, did not appear at the inquest, an inquiry into whether a guardian ad litem should be appointed should have been made.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy