C Guardian, Court e and Counsel for aiP traininG ... CERT GUARD BOOK.pdfN Y C L A - C L E I N s t I t u t E Certified Guardian, Court evaluator and Counsel for aiP traininG: CertifiCation

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Certified Guardian, Court evaluator and Counsel for aiP traininG: CertifiCation

ProGram aPProved by offiCe of Court administration

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

presented on Tuesday, December 4, 2012.

P r o g r A m C h A I r :

Clifford A. Meirowitz, Law Offices of Clifford A. Meirowitz PLLC

F A C u L t Y :

Tammy R. Lawlor, Esq, Miller & Milone; Michele Lippa Gartner, Esq, NYS Office of Court Administration, Guardian & Fiduciary Services Guardianship Proceedings; Peachetta S. deFreitas, Esq, Law Offices of

Alfreida B. Kenny; Linda Redlisky, Esq, Rafferty & Redlisky, LLP; Peter J. Strauss, Esq, Epstein Becker & Green, P.C.; Wendy H. Sheinberg, Esq., Davidow Davidow Siegel & Stern, LLP; Hon. Lottie E. Wilkins, Supreme Court, New York County; Steven R. Finkelstein, Esq, Finkelstein & Virga, P.C.; Peggy Barbanel,

Esq., Peggy Barbanel, Esq.

7 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 7 Transitional & Non-Transitional credit hours: 1 Ethics; 2 Skills; 4 Professional Practice

Information Regarding CLE Credits and Certification Certified Guardian, Court Evaluator and Counsel for AIP Training: Certification

Program Approved by the NYS Office of Court Administration December 7, 2012, 9:00AM to 5:00PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

Continuing Legal Education Institute

14 Vesey Street, New York, N.Y. 10007

Certified Guardian, Court Evaluator and Counsel for the Alleged Incapacitated Person

Tuesday, December 4, 2012 9:00AM – 5:00PM

COURSE MATERIALS

Section Overview & Concepts of Article 81 and Comparisons with Guardians 1 Pursuant to SCPA Article 17 and 17A Tammy R. Lawlor, Esq.

• Distinguishing Article 81 and Article 17A Proceedings • Relationship between Article 81 and Other Provisions of Law

Part 36 Rules of the Chief Judge 2

• Michele Lippa Gartner, Esq. Attorney for the Alleged Incapacitated Person 3 Peachetta deFreitas, Esq.

• Considerations for Counsel for the AIP in an Article 81 Guardianship Proceeding

The Court Evaluator: Duties, Responsibilities & Ethics 4 Linda Redlisky, Esq., Rafferty & Redlisky Family Health Care Decisions Act 5 Peter J. Strauss, Esq.

• New York’s New (2010) Family Health Care Decisions Act: Major Step Forward or a Modest One? (PowerPoint presentation)

Duties, Responsibilities & Ethics of the Guardian of the Person and 6 Property Wendy H. Sheinberg, Esq.

• Duties, Responsibilities & Ethics of the Guardian of the Person and Property (PowerPoint presentation)

• Selected Materials and Source Web Addresses

Record Keeping & Reporting Requirements 7 Peggy Barnabel, Esq. Orientation to Medical Terminology 8

• Guardianship Practice in New York State, Vol. One, 08/04 Supplement Robert Abrams, Esq., Editor in Chief Copyright 2004, New York State Bar Association

Overview and Concepts of Article 81 and Comparison with Guardians Pursuant to 1 SCPA Article 17 and 17A Tammy R. Lawlor,Esq., Miller & Millone

1

Patricia Bomba M.D., F.A.C.P.Vice President and Medical Director, Geriatrics, Excellus BlueCross BlueShield

Chair, MOLST Statewide Implementation TeamLeader, Community-wide End-of-life/Palliative Care Initiative

Chair, National Healthcare Decisions Day New York State Coalition

MOLST and FHCDA: Honoring Patient Preferences for Care at the End of life:Recognizing the Value of the MOLST Program

New York State Bar Association Fall Conference October 29, 2010

Tammy R. Lawlor, Esq.Tammy R. Lawlor, Esq.

Tammy R. Lawlor, Esq.

Tammy Lawlor, Esq. is a Partner at the Law Firm of Miller & Milone, P.C.

Ms. Lawlor is a graduate of the HofstraUniversity School of Law and was admitted

to the New York State Bar in 1997. She also holds a Masters of Business

Administration, specializing in Finance. She has practiced with

Miller & Milone, P.C. since 1997.

Jurisdiction under the Statute

1. Mentally Retarded Person:a. Certified as being incapable of managing his or her affairs

by reason of mental retardation.

b. Certification:1. One licensed physician and one licensed psychologist:2. Two licensed physicians; ** one who is familiar with and has professional knowledge

involving persons with mental retardation

2







2. Persons with Other DevelopmentalDisabilities:

a. Certified as having an impaired ability to understand and appreciate the nature and consequences of decisions

b. Disability is likely to continue indefinitely.


2. Persons with Other Developmental Disabilities: (continued)

c. Disability is attributed to:

1. cerebral palsy, epilepsy, neurological impairment, autism,or traumatic head;* and originated before the age of 22;*except traumatic head injury can be at any age.

2. any other condition closely related to mental retardationand results in similar impairment of intellectual function or behavior and originated before the age of 22;

3. attributable to dyslexia, resulting from one of the above listed disabilities or mental retardation and originated before the age of 22;

Filing Procedure1. Brought in Surrogate’s Court2. For a Person:

a) Mentally Retarded; orb) Other Developmental Disabilities

3. Petitioner: a parent or any interested person over 18 years old; includes a corporation authorized to serve as Guardian as provided in the statute;

4. Venue: the county where the person resides, or may be the county where the parents reside;

5. Standby Guardians: a Standby Guardian should be similar age to the person with the disability; it is important to name a Standby Guardian.

3






Additional Filing Requirements

• Birth Certificate

• Request for Information Guardianship Form;

• Fingerprints

• Death Certificate of Predeceased Parent;

• Renunciation

Court Procedure1. Citation

a. Must be served on the following individuals unless a waiverand consent or renunciation has been filed;

b. Individuals:• Parents;• Adult children (if parents aren’t Petitioner);• Adult siblings (if parents aren’t Petitioner);• Spouse of person;• Person having care or custody of the person,

with whom he or she resides, other than parents or spouse;

• Person who is subject of proceeding, if over 14 years old;

• Grandparents, if both parents are deceased;

Court Procedure

2. Notice of Petitiona. Served by certified mail if

parents not the Petitioner:• Adult siblings; • Adult children;• MHLS in the judicial

department where facility is located;• Director of residential facility where person resides;• One other person if designated in writing by the person;• Such other persons the Court deems proper;

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OtherRolesinArticle17‐AProceeding

1. Guardian ad Litem:a. Statute does not require appointment

b. Some Courts appoint GAL to assess if it’s not in person’s best interests

2. Mental Hygiene Legal Service: a. Must interview the person and file a

written report with the Court advising whether it objects to the appointment of a Guardian

Appointment of a Guardian under Article 17-A Proceeding:

1. Role and Authority of the Guardiana. Role is not clearly defined in Article 17-A;b. Statute provides guidance regarding bond and accountings;c. No guidance or definition of powers, no powers are defined or

limited;d. Guardian is given full plenary powers to make decisions

2. Accountabilitya. Article 17-A Property Guardian must file Accounting; b. Article 17-A Personal Guardian does not need to file Annual

Report.

3. Modifications of the Guardianshipa. Modifications may be requested by Person or Guardian.

4. Training a. No Training is mandated or required.

Article 81 vs. Article 17-A Guardians

ARTICLE 17-A

a. Certification as to Mental Retardation or Developmental Disability;b. No provision for the Appointment of Counsel or Court Evaluator;c. Limited requirements for the Appointment of Guardian ad Litem;d. Presumption of need for guardianship services for life;e. No Training required; f. Usually a quicker and less expensive approach.

5







ARTICLE 81

a. Focuses on the functional assessment and activities of daily living of the person;

b. Requires the Appointment of Court Evaluator;

c. Requires that the Order and Judgment Appointing the Guardianspecifically define the authority and powers of the Guardian;

d. Initial and Annual Reports are required;

e. Training is required.

Needs of Individual under Article 17-A Proceeding:

1. Look at the functioning level of the person:a. If a person is fairly high functioning and

capable of making certain decisions and expressing wishes and preferences, then an Article 81 provides greater flexibility and independence.

b. If a person is functioning at a lower level and is severely disabled then an Article 17-A may be more appropriate.

Medical Consent Issues Under Article 17-A Proceeding

1. In most cases under Article 17-A, it is assumed that the appointment of a Guardian was to consent to medical treatment.

2. Under Article 81, the Court must grant specific authority to consent to medical treatment.

6






Non-Routine Medical Decisions and End of Life Decision Making

• In re Scott Matthews

• In re Hofbauer

• Rivers v. Katz

OMRDD regulations for Guardians:

Office of Mental Retardation and Developmental Disabilities regulations provide for the full participation of Guardians, appointed by way of Article 17-A or Article 81. With regards to decisions affecting the care and treatment of persons in either state operated or state certified OMRDD programs

OMRDD regulations encourages Guardians involvement in:

1. Objection to an appeal of care and treatment;

2. Informed consent for service plans that involve risk;

3. Rights and responsibilities person receiving services;

4. Reportable incidents and abuse.

7






Conclusion

Article 81 provides better for the procedural and substantive rights of the individual who is disabled.

Article 17-A provides broader powers to parents and/or guardians with less cost, no training requirements, and easier accounting requirements.

Tammy R. Lawlor, Esq. Tammy R. Lawlor, Esq.

Tammy R. Lawlor, Esq.

Tammy Lawlor, Esq. is a Partner at the Law Firm of Miller & Milone, P.C.

Ms. Lawlor is a graduate of the Hofstra University School of Law and was admitted

to the New York State Bar in 1997. She also holds a Masters of Business

Administration, specializing in Finance. She has practiced with

Miller & Milone, P.C. since 1997.


1. Mentally Retarded Person: a. Certified as being incapable of managing his or her affairs

by reason of mental retardation.

b. Certification: 1. One licensed physician and one licensed psychologist: 2. Two licensed physicians; * * one who is familiar with and has professional knowledge

involving persons with mental retardation


2. Persons with Other Developmental Disabilities:

a. Certified as having an impaired ability to understand and appreciate the nature and consequences of decisions

b. Disability is likely to continue indefinitely.


2. Persons with Other Developmental Disabilities: (continued)

c. Disability is attributed to:

1. cerebral palsy, epilepsy, neurological impairment, autism, or traumatic head;* and originated before the age of 22;

*except traumatic head injury can be at any age.

2. any other condition closely related to mental retardation and results in similar impairment of intellectual function or behavior and originated before the age of 22;

3. attributable to dyslexia, resulting from one of the above listed disabilities or mental retardation and originated before the age of 22;

Filing Procedure 1. Brought in Surrogate’s Court 2. For a Person:

a) Mentally Retarded; or b) Other Developmental Disabilities

3. Petitioner: a parent or any interested person over 18 years old; includes a corporation authorized to serve as Guardian as provided in the statute;

4. Venue: the county where the person resides, or may be the county where the parents reside;

5. Standby Guardians: a Standby Guardian should be similar age to the person with the disability; it is important to name a Standby Guardian.

Additional Filing Requirements

• Birth Certificate

• Request for Information Guardianship Form;

• Fingerprints

• Death Certificate of Predeceased Parent;

• Renunciation

Court Procedure 1. Citation

a. Must be served on the following individuals unless a waiver and consent or renunciation has been filed; b. Individuals: • Parents; • Adult children (if parents aren’t Petitioner); • Adult siblings (if parents aren’t Petitioner); • Spouse of person; • Person having care or custody of the person,

with whom he or she resides, other than parents or spouse;

• Person who is subject of proceeding, if over 14 years old;

• Grandparents, if both parents are deceased;

Court Procedure

2. Notice of Petition a. Served by certified mail if parents not the Petitioner:

• Adult siblings; • Adult children; • MHLS in the judicial

department where facility is located; • Director of residential facility where person resides; • One other person if designated in writing by the person; • Such other persons the Court deems proper;

Other Roles in Article 17-A Proceeding

1. Guardian ad Litem: a. Statute does not require appointment

b. Some Courts appoint GAL

to assess if it’s not in person’s best interests

2. Mental Hygiene Legal Service: a. Must interview the person and file a

written report with the Court advising whether it objects to the appointment of a Guardian

Appointment of a Guardian under Article 17-A Proceeding:

1. Role and Authority of the Guardian a. Role is not clearly defined in Article 17-A; b. Statute provides guidance regarding bond and accountings; c. No guidance or definition of powers, no powers are defined or

limited; d. Guardian is given full plenary powers to make decisions

2. Accountability a. Article 17-A Property Guardian must file Accounting; b. Article 17-A Personal Guardian does not need to file Annual

Report.

3. Modifications of the Guardianship a. Modifications may be requested by Person or Guardian.

4. Training a. No Training is mandated or required.


ARTICLE 17-A

a. Certification as to Mental Retardation or Developmental Disability; b. No provision for the Appointment of Counsel or Court Evaluator; c. Limited requirements for the Appointment of Guardian ad Litem; d. Presumption of need for guardianship services for life; e. No Training required; f. Usually a quicker and less expensive approach.


ARTICLE 81

a. Focuses on the functional assessment and activities of daily living of the person;

b. Requires the Appointment of Court Evaluator;

c. Requires that the Order and Judgment Appointing the Guardian specifically define the authority and powers of the Guardian;

d. Initial and Annual Reports are required;

e. Training is required.

Needs of Individual under Article 17-A Proceeding:

1. Look at the functioning level of the person: a. If a person is fairly high functioning and

capable of making certain decisions and expressing wishes and preferences, then an Article 81 provides greater flexibility and independence.

b. If a person is functioning at a lower level and is severely disabled then an Article 17-A may be more appropriate.

Medical Consent Issues Under Article 17-A Proceeding

1. In most cases under Article 17-A, it is assumed that the appointment of a Guardian was to consent to medical treatment.

2. Under Article 81, the Court must grant specific authority to consent to medical treatment.

Non-Routine Medical Decisions and End of Life Decision Making

• In re Scott Matthews

• In re Hofbauer

• Rivers v. Katz

OMRDD regulations for Guardians:

Office of Mental Retardation and Developmental Disabilities regulations provide for the full participation of Guardians, appointed by way of Article 17-A or Article 81. With regards to decisions affecting the care and treatment of persons in either state operated or state certified OMRDD programs

OMRDD regulations encourages Guardians involvement in:

1. Objection to an appeal of care and treatment;

2. Informed consent for service plans that involve risk;

3. Rights and responsibilities person receiving services;

4. Reportable incidents and abuse.

Conclusion

Article 81 provides better for the procedural and substantive rights of the individual who is disabled.

Article 17-A provides broader powers to parents and/or guardians with less cost, no training requirements, and easier accounting requirements.

Part 36 Rules of Chief Judge 2 Michele Lippa Gartner, Esq. NYS Office of Court Administration Guardian and Fiduciary Services Guardianship Proceedings

Michele Gartner is Special Counsel for Surrogate & Fiduciary Matters for the NYS Office of Court Administration. She received her JD from SUNY at Buffalo School of Law

PART 36THE RULES OF THE CHIEF JUDGE

Guardian, Court Evaluator & Attorney for the AIP

Michele GartnerSpecial Counsel for Surrogate & Fiduciary Matters

Office of Court Administration

25 Beaver Street, New York, New York 10004

(212) 428-5533

[email protected]

CERTIFIED TRAINING

1

CERTIFIED TRAINING

Guardian, Court Evaluator & Attorney for the AIPPART 36

THE RULES OF THE CHIEF JUDGE

Outline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Part 36: The Rules of the Chief Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Part 36: Explanatory Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

UCS Form 870: Application for Appointment to Part 36 List . . . . . . . . . . . . . . . . 16

Instructions to Amend Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

UCS Form 872: Notice of Appointment & Certification of Compliance. . . . . . . . . . . 23

Sample Secondary Appointment Forms:

Application for Approval of Secondary Appointment . . . . . . . . . . . . . . . . 28

Decision and Order Approving Application for Secondary Appointment . . . . . . 29

UCS Form 876: Report of Law Firm Compensation . . . . . . . . . . . . . . . . . . . . 31

Materials

2

22 N.Y.C.R.R. § 36 et. seq.

  Eligibility Criteria for Fiduciaries   Training Requirements   Application Process   Disqualifications   Limitations on Compensation

  Recording/Reporting Requirements   Appointments   Compensation   Public Database

  Subject to Part 36 Rules:

  Guardians, Court Evaluators, Attorneys for Alleged Incapacitated Persons, Court Examiners

  Supplemental Needs Trustees   Guardians ad Litem, their counsel &

assistants   Law Guardians   Receivers   Referees (Foreclosure)   Public Administrator and Counsel to PA

3

  Those performing specific services for Guardians or Receivers:   Counsel   Accountants   Auctioneers   Appraisers   Property managers   Real estate brokers

  Secondary Appointments are Subject to Part 36 Rules

  Guardians: Relatives, Friends, nominated by ward or proposed by a party

  Referees performing quasi-judicial functions

  SNT Trustee who is relative or proposed by proponent of trust

  Not-for-profit as guardian or court evaluator

  Bank or trust company as SNT trustee or depository

  DSS, HRA, MD as GAL in treatment case

  Appointments taken pro bono

  Relatives of Judge and spouse and the spouses of those relatives to 1st cousins   Includes housing judges, town and village judges

  All court employees & close relatives of court employees grade 24 and above, within jurisdiction

  County and state political party officials & their close relatives   2 year prohibition for official and family   Members, Associates, Counsel, Employees of “law firms or

entities” while official is associated with the firm

  Former Judges and close relatives for two years, within jurisdiction

4

  Judge’s campaign staff, their families and associates of their law firms for 2 years, by that Judge

  JHOs in the particular court where the JHO is on the panel

  Disbarred or suspended attorneys

  Felons, unless certificate of relief, and misdemeanants for 5 years post sentence, unless waived by CAJ

  Persons removed from the list for cause

  Attorney for alleged incapacitated person may NOT be guardian or counsel to guardian (absolute ban)

  Court Evaluator may not be appointed Guardian   UNLESS court finds “extenuating

circumstances”   In writing   Filed with the fiduciary clerk

  UNLESS court finds “Compelling Reason”

  Guardians and receivers may NOT be appointed counsel to themselves

  Law firm “associated” with a guardian or receiver may NOT be counsel to that guardian or receiver

5

“The Caps”

  $75,000 Rule   If past year’s compensation > $75k

ineligible for appointment for one year

  $15,000 Rule   One appointment per year : > $15k

anticipated compensation in any year   Good Faith

  Compensation = Award by the Court

  Eligibility determined on date of Appointment.

  Applies to new appointments only, may keep inventory.

  One Exception:   Necessary to maintain continuity of

representation or service   Must be same person or entity   Same appointment category

  Judicial Order   Includes secondary appointments

  UCS Form 872 (list & non-list)   Sent to appointee   Appointee returns form to court

  UCS Form 872.5 (non-list only)   “Good Cause”   Judge sends to Fiduciary Clerk & CAJ

6

7

  Those who perform specific services for “Guardians or Receivers”   Counsel   Accountant   Appraisers   Property Managers,   Real Estate Brokers

  Court Approval Required: Order

  Must meet all eligibility requirements

  UCS Form 872 (& 872.5 if non-list)

8

9

§ 36.0 PREAMBLEPublic trust in the judicial process demands that appointments by judges be fair, impartial and beyond reproach. Accordingly, these rules are intended to ensure that appointees are selected on the basis of merit, withoutfavoritism, nepotism, politics or other factors unrelated to the qualifications ofthe appointee or the requirements of the case.The rules cannot be written in a way that foresees every situation in which theyshould be applied. Therefore, the appointment of trained and competentpersons, and the avoidance of factors unrelated to the merit of theappointments or the value of the work performed are the fundamentalobjectives that should guide all appointments made, and orders issued,pursuant to this Part.

§ 36.1 APPLICATION(a) Except as set forth in subdivision (b), this Part shall apply to the

following appointments made by any judge or justice of the Unified CourtSystem:(1) guardians;(2) guardians ad litem, including guardians ad litem appointed to

investigate and report to the court on particular issues, and theircounsel and assistants;

(3) law guardians who are not paid from public funds, in those judicialdepartments where their appointments are authorized;

(4) court evaluators;(5) attorneys for alleged incapacitated persons;(6) court examiners;(7) supplemental needs trustees;(8) receivers;(9) referees (other than special masters and those otherwise

performing judicial functions in a quasi-judicial capacity);(10) the following persons or entities performing services for guardians or

receivers:(i) counsel(ii) accountants(iii) auctioneers(iv) appraisers(v) property managers(vi) real estate brokers

(11) a public administrator within the City of New York and for thecounties of Westchester, Onondaga, Erie, Monroe, Suffolk and Nassauand counsel to the public administrator, except that only sections36.2(c) and 36.4(e) of this Part shall apply, and that section 36.2(c)shall not apply to incumbents in these positions until one year afterthe effective date of this paragraph.

(b) Except for sections 36.2(c)(6) and 36.2(c)(7), this Part shall not apply to:(1) appointments of law guardians pursuant to section 243 of the Family

Court Act, guardians ad litem pursuant to section 403-a of theSurrogate’s Court Procedure Act, or the Mental Hygiene Legal Service;

(2) the appointment of, or the appointment of any persons or entitiesperforming services for, any of the following:(i) a guardian who is a relative of (A) the subject of the guardianshipproceeding or (B) the beneficiary of a proceeding to create asupplemental needs trust; a person or entity nominated as guardian bythe subject of the proceeding or proposed as guardian by a party to theproceeding; a supplemental needs trustee nominated by thebeneficiary of a supplemental needs trust or proposed by a proponentof the trust; or a person or entity having a legally recognized duty orinterest with respect to the subject of the proceeding;(ii) a guardian ad litem nominated by an infant of 14 years of age orover;(iii) a nonprofit institution performing property management orpersonal needs services, or acting as court evaluator;(iv) a bank or trust company as a depository for funds or as asupplemental needs trustee;(v) except as set forth in section 36.1(a)(11), a public official vested withthe powers of an administrator;(vi) a person or institution whose appointment is required by law;(vii) a physician whose appointment as a guardian ad litem is necessarywhere emergency medical or surgical procedures are required.

(3) an appointment other than above without compensation, except thatthe appointee must file a notice of appointment pursuant to section36.4(a) of this Part.

§ 36.2 APPOINTMENTS(a) Appointments by the judge. All appointments of the persons or entities set

forth in section 36.1, including those persons or entities set forth in section36.1(a)(10) who perform services for guardians or receivers, shall be madeby the judge authorized by law to make the appointment. In makingappointments of persons or entities to perform services for guardians orreceivers, the appointing judge may consider the recommendation of theguardian or receiver.

(b) Use of lists.(1) All appointments pursuant to this Part shall be made by the appointing

judge from the appropriate list of applicants established by the ChiefAdministrator of the Courts pursuant to section 36.3 of this Part.

(2) An appointing judge may appoint a person or entity not on theappropriate list of applicants upon a finding of good cause, which shallbe set forth in writing and shall be filed with the fiduciary clerk at thetime of the making of the appointment. The appointing judge shallsend a copy of such writing to the Chief Administrator. A judge may notappoint a person or entity that has been removed from a list pursuantto section 36.3(e).

(3) Appointments made from outside the lists shall remain subject to all ofthe requirements and limitations set forth in this Part, except that theappointing judge may waive any education and training requirementswhere completion of these requirements would be impractical.

(c) Disqualifications from appointment.(1) No person shall be appointed who is a judge or housing judge of the

Unified Court System of the State of New York, or who is a relative of, orrelated by marriage to, a judge or housing judge of the Unified CourtSystem within the fourth degree of relationship.

(2) No person serving as a judicial hearing officer pursuant to Part 122 ofthe Rules of the Chief Administrator shall be appointed in actions orproceedings in a court in a county where he or she serves on a judicialhearing officer panel for such court.

(3) No person shall be appointed who is a full-time or part-time employeeof the Unified Court System. No person who is the spouse, sibling,parent or child of an employee who holds a position at salary gradeJG24 or above, or its equivalent, shall be appointed by a court within thejudicial district where the employee is employed or, with respect to anemployee with statewide responsibilities, by any court in the state.

(4) (i) No person who is the chair or executive director, or their equivalent,of a state or county political party, or the spouse, sibling, parent or childof that official, shall be appointed while that official serves in thatposition and for a period of two years after that official no longer holdsthat position. This prohibition shall apply to the members, associates,counsel and employees of any law firms or entities while the official isassociated with that firm or entity.(ii) No person who has served as a campaign chair, coordinator,manager, treasurer or finance chair for a candidate for judicial office, orthe spouse, sibling, parent or child of that person, or anyone associatedwith the law firm of that person, shall be appointed by the judge forwhom that service was performed for a period of two years followingthe judicial election. If the candidate is a sitting judge, thedisqualifications shall apply as well from the time the person assumesany of the above roles during the campaign for judicial office.

(5) No former judge or housing judge of the Unified Court System, or thespouse, sibling, parent or child of such judge, shall be appointed, withintwo years from the date the judge left judicial office, by a court withinthe jurisdiction where the judge served. Jurisdiction is defined asfollows:(i) The jurisdiction of a judge of the Court of Appeals shall be statewide.(ii) The jurisdiction of a justice of an Appellate Division shall be the judi-cial department within which the justice served.(iii) The jurisdiction of a justice of the Supreme Court and a judge of theCourt of Claims shall be the principal judicial district within which thejustice or judge served.(iv) With respect to all other judges, the jurisdiction shall be the princi-pal county within which the judge served.

(6) No attorney who has been disbarred or suspended from the practice oflaw shall be appointed during the period of disbarment or suspension.

(7) No person convicted of a felony, or for five years following the date ofsentencing after conviction of a misdemeanor (unless otherwisewaived by the Chief Administrator upon application), shall beappointed unless that person receives a certificate of relief fromdisabilities.

PART 36. Appointments by the Court

1

rev. 1/08

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(8) No receiver or guardian shall be appointed as his or her own counsel,and no person associated with a law firm of that receiver or guardianshall be appointed as counsel to that receiver or guardian, unless thereis a compelling reason to do so.

(9) No attorney for an alleged incapacitated person shall be appointed asguardian to that person, or as counsel to the guardian of that person.

(10) No person serving as a court evaluator shall be appointed as guardianfor the incapacitated person except under extenuating circumstancesthat are set forth in writing and filed with the fiduciary clerk at thetime of the appointment.

(d) Limitations on appointments based upon compensation.(1) No person or entity shall be eligible to receive more than one

appointment within a calendar year for which the compensationanticipated to be awarded to the appointee in any calendar yearexceeds the sum of $15,000.

(2) If a person or entity has been awarded more than an aggregate of$75,000 in compensation by all courts during any calendar year, theperson or entity shall not be eligible for compensated appointments byany court during the next calendar year.

(3) For purposes of this Part, the term “compensation” shall mean awardsby a court of fees, commissions, allowances or other compensation,excluding costs and disbursements.

(4) These limitations shall not apply where the appointment is necessaryto maintain continuity of representation of or service to the sameperson or entity in further or subsequent proceedings.

§ 36.3 PROCEDURE FOR APPOINTMENT(a) Application for appointment. The Chief Administrator shall provide for the

application by persons or entities seeking appointments pursuant to thisPart on such forms as shall be promulgated by the Chief Administrator. Theforms shall contain such information as is necessary to establish that theapplicant meets the qualifications for the appointments covered by thisPart and to apprise the appointing judge of the applicant’s background.

(b) Qualifications for appointment. The Chief Administrator shall establishrequirements of education and training for placement on the list ofavailable applicants. These requirements shall consist, as appropriate, ofsubstantive issues pertaining to each category of appointment — includingapplicable law, procedures, and ethics — as well as explications of the rulesand procedures implementing the process established by this Part.Education and training courses and programs shall meet the requirementsof these rules only if certified by the Chief Administrator. Attorneyparticipants in these education and training courses and programs may beeligible for continuing legal education credit in accordance with therequirements of the Continuing Legal Education Board.

(c) Establishment of lists. The Chief Administrator shall establish separate listsof qualified applicants for each category of appointment, and shall makeavailable such information as will enable the appointing judge to be apprised of the background of each applicant. The ChiefAdministrator may establish more than one list for the same appointmentcategory where appropriate to apprise the appointing judge of applicantswho have substantial experience in that category. Pursuant to section81.32(b) of the Mental Hygiene Law, the Presiding Justice of the appropriateAppellate Division shall designate the qualified applicants on the lists ofcourt examiners established by the Chief Administrator.

(d) Reregistration. The Chief Administrator shall establish a procedurerequiring that each person or entity on a list reregister every two years inorder to remain on the list.

(e) Removal from list. The Chief Administrator may remove any person orentity from any list for unsatisfactory performance or any conductincompatible with appointment from that list, or if disqualified fromappointment pursuant to this Part. A person or entity may not be removedexcept upon receipt of a written statement of reasons for the removal andan opportunity to provide an explanation and to submit facts in oppositionto the removal.

§ 36.4 PROCEDURE AFTER APPOINTMENT(a) Notice of appointment and certification of compliance.

(1) Every person or entity appointed pursuant to this Part shall file with thefiduciary clerk of the court from which the appointment is made,within 30 days of the making of the appointment, (i) a notice ofappointment and (ii) a certification of compliance with this Part, onsuch form as promulgated by the Chief Administrator. Copies of thisform shall be made available at the office of the fiduciary clerk andshall be transmitted by that clerk to the appointee immediately afterthe making of the appointment by the appointing judge. An appointee

who accepts an appointment without compensation need notcomplete the certification of compliance portion of the form.

(2) The notice of appointment shall contain the date of the appointmentand the nature of the appointment.

(3) The certification of compliance shall include:(i) a statement that the appointment is in compliance with sections36.2(c) and (d); and (ii) a list of all appointments received, or for whichcompensation has been awarded, during the current calendar year andthe year immediately preceding the current calendar year, which shallcontain (A) the name of the judge who made each appointment, (B) thecompensation awarded, and (C) where compensation remains to beawarded, (i) the compensation anticipated to be awarded and (ii)separate identification of those appointments for which compensationof $15000 or more is anticipated to be awarded during any calendaryear. The list shall include the appointment for which the filing is made.

(4) A person or entity who is required to complete the certification ofcompliance, but who is unable to certify that the appointment is incompliance with this Part, shall immediately so inform the appointingjudge.

(b) Approval of compensation.(1) Upon seeking approval of compensation of more than $500, an

appointee must file with the fiduciary clerk, on such form as ispromulgated by the Chief Administrator, a statement of approval ofcompensation, which shall contain a confirmation to be signed by thefiduciary clerk that the appointee has filed the notice of appointmentand certification of compliance.

(2) A judge shall not approve compensation of more than $500, and nocompensation shall be awarded, unless the appointee has filed thenotice of appointment and certification of compliance form required bythis Part and the fiduciary clerk has confirmed to the appointing judgethe filing of that form.

(3) Each approval of compensation of $5,000 or more to appointeespursuant to this section shall be accompanied by a statement, inwriting, of the reasons therefor by the judge. The judge shall file a copyof the order approving compensation and the statement with thefiduciary clerk at the time of the signing of the order.

(4) Compensation to appointees shall not exceed the fair value of servicesrendered. Appointees who serve as counsel to a guardian or receivershall not be compensated as counsel for services that should have beenperformed by the guardian or receiver.

(c) Reporting of compensation received by law firms. A law firm whosemembers, associates and employees have had a total of $50,000 or more incompensation approved in a single calendar year for appointments madepursuant to this Part shall report such amounts on a form promulgated bythe Chief Administrator.

(d) Exception. The procedure set forth in this section shall not apply to theappointment of a referee to sell real property and a referee to computewhose compensation for such appointments is not anticipated to exceed$750.

(e) Approval and Reporting of Compensation Received by Counsel to the PublicAdministrator.(1) A judge shall not approve compensation to counsel to the public

administrator in excess of the fee schedule promulgated by theadministrative board of the public administrator under SCPA 1128unless accompanied by the judge's statement, in writing, of thereasons therefor, and by the appointee's affidavit of legal servicesunder SCPA 1108 setting forth in detail the services rendered, the timespent, and the method or basis by which the requested compensationwas determined.

(2) Any approval of compensation in excess of the fee schedulepromulgated by the administrative board of the public administratorshall be reported to the Office of Court Administration on a formpromulgated by the Chief Administrator and shall be accompanied bya copy of the order approving compensation, the judge's writtenstatement, and the counsel's affidavit of legal services, which recordsshall be published as determined by the Chief Administrator.

(3) Each approval of compensation of $5,000 or more to counsel shall bereported to the Office of Court Administration on a form promulgatedby the Chief Administrator and shall be published as determined by theChief Administrator.

§ 36.5 PUBLICATION OF APPOINTMENTS.(a) All forms filed pursuant to section 36.4 shall be public records.(b) The Chief Administrator shall arrange for the periodic publication of the

names of all persons and entities appointed by each appointing judge, andthe compensation approved for each appointee.

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PART 36 OF THE RULES OF THE CHIEF JUDGE: AN EXPLANATORY NOTEPart 36 of the Rules of the Chief Judge creates a system that broadens the eligibility for appointment toa wide range of applicants well-trained in their category of appointment, establishes procedures thatpromote accountability and openness in the selection process, and insulates that process from appear-ances of favoritism, nepotism or politics.

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1. APPLICABILITYPart 36 governs ten categories of primary appointments andsix categories of secondary appointments (§ 36.1 [a]), as setforth below.

a. GuardiansPart 36 applies to guardians appointed for: 1) incapacitatedpersons pursuant to Mental Hygiene Law article 81; 2) minorspursuant to Surrogate’s Court Procedure Act article 17 or CivilPractice Laws and Rules article 12; and 3) the mentally retardedor developmentally disabled pursuant to Surrogate’s CourtProcedure Act article17-A (§ 36.1 [a][1]). If a person is appointedguardian upon a ward’s nomination or a party’s proposal,appointment is exempt from Part 36 (§ 36.1 [b][2][i]).A guardianship where the appointee is a nonprofit institution,department of social services, or other public agency withlegally recognized duties or interests is exempt from Part 36 (§36.1 [b][2]][i], [iii]). Guardianships in proceedings for the termi-nation of parental rights (see Social Services Law § 384-b,Surrogate’s Court Procedure Act § 403-a, Family Ct. Act article6) are also exempt, since only persons or entities authorized bylaw may be appointed guardian in such proceedings (§ 36.1[b][2][i], [vi]).

b. Guardians Ad LitemPart 36 applies to guardians ad litem appointed under the gen-eral provisions of Surrogate’s Court Procedure Act § 403 andCivil Practice Laws and Rules 1202, including guardians adlitem appointed to investigate and report to the court on particular issues (§ 36.1 [a][2]). Where a court appoints counselor assistants to guardians ad litem, these appointees also aregoverned by the rules. If appointed a guardian ad litem uponthe nomination of an infant of 14 years of age or over, theappointee is exempt (§ 36.1[b][2][ii]). Similarly exempt is aphysician whose appointment as a guardian ad litem is neces-sary where emergency medical or surgical procedures arerequired (§ 36.1 [b][2][vii]).

c. Law GuardiansPrivately paid law guardians who are appointed in domesticrelations matters in those Departments of the AppellateDivision where authorized are subject to the provisions of Part36 (§ 36.1 [a][3]). Law guardians appointed and paid from pub-lic funds are exempt (§ 36.1 [b][1]). (As a general rule, Part 36applies only to appointees compensated at the expense of pri-vate parties, and not those compensated from public fundssuch as appointments pursuant to Family Court Act § 243,Surrogate’s Court Procedure Act § 403-a, 407, Judiciary Law §35, and County Law article 18-B.)

d. Court Evaluators, Attorneys For AllegedIncapacitated Persons, Court ExaminersIn proceedings for the appointment of guardians for incapaci-tated persons pursuant to article 81 of the Mental HygieneLaw, the court may appoint an attorney for the alleged inca-pacitated person (Mental Hygiene Law § 81.10) or appoint acourt evaluator as an independent witness to investigate andreport to the court (Mental Hygiene Law § 81.09). These

appointments are governed by Part 36 (§ 36.1 (a)(4), (5)), exceptthat a nonprofit institution appointed court evaluator isexempt (§ 36.1 [b][2][iii]). The Mental Hygiene Legal Service,which may serve as attorney for an alleged incapacitated per-son or court evaluator, is also exempt (§ 36.1 [b][1]).If a guardian is appointed pursuant to article 81 of the MentalHygiene Law, the court may also assign a court examiner toaudit and report on accountings required to be filed in suchguardianship proceedings (Mental Hygiene Law § 81.30, 81.31).Court examiners are designated by the Presiding Justice ofeach Department of the Appellate Division (Mental HygieneLaw § 81.32), and, upon designation, must comply with all theprovisions of Part 36 (§§ 36.1 [a][6]; 36.3 [c]).

e. Supplemental Needs TrusteesSupplemental needs trustees (see Omnibus BudgetReconciliation Act of 1993 (42 USC 1396p[d][4], EPTL § 7-1.12, SSL§ 366 [2][b][2][iii], 18 NYCRR § 360-4.5) may be appointed in anumber of contexts in Supreme Court or Surrogate’s Court,e.g., in infants’ compromise orders, or in proceedings underarticle 17-A of the Surrogate’s Court Procedure Act or article 81of the Mental Hygiene Law. When selected by the court andappointed by judgment or order, a supplemental needs trusteeis subject to the provisions of Part 36 (§ 36.1 [a][7]), unless theappointee is a bank or trust company (§ 36.1 [b][2][iv]), or isappointed upon nomination by the beneficiary, or by the pro-ponent, of the trust (§ 36.1 [b][2][i]).

f. ReceiversPart 36 applies to receivers almost without exception (§ 36.1[a][8]). In rare cases where the choice of receiver would be dic-tated by law, such an appointee would be exempt (§ 36.1[b][2][vi]).

g. RefereesReferees are treated differently under Part 36 depending onthe purpose for which they are appointed. Under articles 31and 43 of the Civil Practice Laws and Rules, referees, sometimescalled “special masters”, are often used in a quasi-judicialcapacity to supervise discovery or conduct trials in civil actionsor proceedings. No matter what their title, if referees are usedto perform a judicial function, they are exempt from Part 36 (§36.1 [a][9]). Referees appointed for all other purposes are gov-erned by the rules. These appointments are usually for the pur-pose of performing an act outside of court, e.g., conducting thesale of real property in a mortgage foreclosure action or super-vising a labor union election.Referees to compute the value of, and sell, real property in theordinary mortgage foreclosure action, and who receive com-pensation of $750 or less, are subject to all of the provisions ofPart 36 preliminary to appointment, including the disqualifica-tion provisions of section 36.2 (c), the limitations based oncompensation of section 36.2 (d), and list enrollment undersection 36.3. Upon appointment, however, these referees arenot required to file the notice of appointment or certificationof compliance that all other Part 36 appointees must file (§36.4 [d]). They and the court are also excepted from filing astatement of approval of compensation pursuant to JudiciaryLaw § 35-a (1) (a) and 22 NYCRR § 26.1 (a) (see section 5. B. infra),

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because the $750 total compensation results from two sepa-rate appointments which are below the statutory threshold of$500 for each appointment (up to $250 for computation; $500for sale).

h. Secondary Appointments Of Guardians AndReceivers: Counsel, Accountants, Appraisers,Auctioneers, Property Managers, Real EstateBrokersWhen a guardian or receiver subject to the provisions of Part36 seeks to retain counsel, or an accountant, appraiser, auc-tioneer, property manager or real estate broker, the retainedprofessional becomes a Part 36 appointee (§ 36.1[a][10]). Theguardian or receiver must request that the judge appoint sucha professional (§ 36.2 [a]), and the professional must complywith all the provisions of Part 36, including those governing listenrollment (§ 36.3), disqualification and limitation based oncompensation (§ 36.2), and all filing requirements (§ 36.4).

i. Public Administrator And Counsel To PublicAdministratorCertain sections of Part 36 apply to the appointment of aPublic Administrator within the City of New York and for thecounties of Westchester, Onondaga, Erie, Monroe, Suffolk andNassau and counsel to the public administrator. Those sectionsinclude the disqualifications due to family relationship,employment, former employment, political party office or judi-cial campaign office found in section 36.2 (c) and the approvalof compensation reporting requirements found in section36.4(e).

2. APPROVED LISTS: APPLICATION, ENROLLMENT, USEAll persons or entities whose appointments are governed byPart 36 (§ 36.1 [a][1]–[10]), and who are not exempt under sec-tion 36.1 (b), must be enrolled on an approved list establishedby the Chief Administrator of the Courts (§ 36.3 [c]) from whichall names for appointment must be selected (§ 36.2 [b][1]),except when good cause exists to appoint outside the list (§36.2 [b][2]). In those exceptional circumstances, the court mustmake a finding of good cause, in writing, and file its findingwith the fiduciary clerk, who has the duty of supervising thefiling of all papers in the Part 36 appointment process (see §§36.2 [b][2]; 36.4 [a][1], [b][1]-[3]). A copy of the finding also willbe sent to the Chief Administrator of the Courts (§ 36.2[b][2]).A person or entity not appointed from an appropriate list stillmust comply with all the other provisions of Part 36, e.g., theappointee must not be disqualified from appointment undersection 36.2(c) or (d) and must file all Part 36 forms pursuant tosection 36.4, but any education and training requirementsmay be waived (§ 36.2 [b][3]). At no time may a court appoint aperson or entity removed from a list for cause (§ 36.2 [b][2]).(See § 36.3 [e] for the procedure for removal upon the ChiefAdministrator’s determination of unsatisfactory performanceor conduct incompatible with appointment from a list.) To enroll on a list maintained by the Chief Administrator of theCourts, an applicant must have completed the required train-ing for each category of appointment for which enrollment isrequested (§ 36.3 [b]). Once all required training is completed,an application must be submitted on the application formpromulgated by the Chief Administrator (UCS-870) (§ 36.3 [a]).Court examiners for proceedings under article 81 of the MentalHygiene Law and privately paid law guardians in domesticrelations actions first must be approved by the AppellateDivision before being eligible for placement on a list.Section 36.3 (d) provides for biennial re-registration, which willpermit the Chief Administrator to keep all lists current.

3. DISQUALIFICATIONSThe following persons are disqualified from appointment(§ 36.2[c]):a. a judge or housing judge of the Unified Court System, or a

relative of, or a person related by marriage to, a judge orhousing judge of the Unified Court System within thefourth degree of relationship;

b. a judicial hearing officer in a court in a county in which heor she serves as a judicial hearing officer;

c. a full-time or part-time employee of the Unified CourtSystem;

d. the spouse, brother/sister, parent or child of a full-time orpart-time employee of the Unified Court System at orabove salary grade JG24, or its equivalent: 1) employed in ajudicial district where the relative is applying for appoint-ment or 2) with statewide responsibilities;

e. a person who currently serves, or has served within the lasttwo years (commencing January 1, 2003), as chair, execu-tive director, or the equivalent, of a state or county politicalparty; the spouse, brother/sister, parent or child of suchpolitical party official; or a member, associate, counsel oremployee of a law firm or entity with which such politicalparty official is currently associated;

f. a former judge or housing judge of the Unified CourtSystem who left office within the last two years (com-mencing January 1, 2003) and who is applying for appoint-ment within the jurisdiction of prior judicial service, asdefined by section 36.2(c)(5) of the Rules of the ChiefJudge; or the spouse, brother/sister, parent or child of suchformer judge;

g. an attorney currently disbarred or suspended from thepractice of law by any jurisdiction;

h. a person convicted of a felony for which no certificate ofrelief from disabilities has been received;

i. a person convicted of a misdemeanor for which sentencewas imposed within the last five years and for which nocertificate of relief from disabilities, or waiver by the ChiefAdministrator of the Courts, has been received; or

j. a person who has been removed from an appointment listof the Chief Administrator of the Courts for unsatisfactoryperformance or conduct incompatible with appointment.

The disqualifications for disbarred or suspended attorneys (seeparagraph [g], supra) and convicted criminals (see paragraphs[h] and [i], supra) apply to any appointments under section 36.1(a), even if otherwise exempted under the rules pursuant tosection 36.1 (b).Additionally, there are three disqualifications that do not limitlist enrollment, but may render an enrollee disqualified fromappointment due to the circumstances of a particular case.These disqualifications are: 1) receivers or guardians, or personsassociated with the law firm of a receiver or guardian, are pro-hibited from being appointed counsel to the receiver orguardian (§ 36.2 [c][8]); 2) counsel to alleged incapacitated per-sons in Mental Hygiene Law article 81 proceedings are prohib-ited from being appointed guardian, or counsel to theguardian, for an incapacitated person they have represented (§36.2 [c][9]); and 3) court evaluators in Mental Hygiene Law arti-cle 81 proceedings are prohibited from being appointedguardian for an incapacitated person in a proceeding in whichthey served as court evaluator (§ 36.2 [c][10]). In the first andthird of these disqualifications, exceptions may be made. Ifthere is a compelling reason, such as savings to the estate ofthe receivership or guardianship, the receiver or guardian may

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be appointed counsel. Similarly, if there are extenuating cir-cumstances, such as the unavailability of others to be appoint-ed guardian and a familiarity and trust developed betweencourt evaluator and incapacitated person, a court evaluatormay be appointed guardian upon a written finding by thecourt of extenuating circumstances.There is also a disqualification relating to judicial campaignactivity. This does not prevent list enrollment, but limitsappointment by a judge for whom the enrollee acted as cam-paign chair, coordinator, manager, treasurer or finance chair ina campaign for a judicial election that took place less than twoyears prior to the proposed appointment (§ 36.2 [c][4][ii]). If thecandidate is a sitting judge, the disqualification also applies toa person who assumes any of the above roles during the cam-paign for judicial office. Included in this disqualification are thespouse, brother/sister, parent or child of the campaign official,or anyone associated with the campaign official’s law firm.

4. LIMITATIONS ON APPOINTMENTS BASED UPON COMPENSATIONSubdivision (d) of section 36.2 establishes two additional dis-qualifications from appointment, not related to list eligibility,but based upon anticipated or previously awarded compensa-tion. These restrictions do not limit compensation per se, butuse compensation as a basis for determining availability forfuture appointment. There are no exceptions to the applica-tion of these limitations, unless the court determines theappointment is necessary to maintain continuity of represen-tation of the same person or entity in further or subsequentproceedings.

a. The $15,000 RuleSection 36.2 (d)(1) prohibits appointees from receiving morethan one appointment in the same calendar year (i.e., January1 to December 31) for which compensation in excess of $15,000is awarded in that calendar year or anticipated to be awardedin any calendar year. Two examples illustrate the rule. 1) Ifappointed as attorney for an alleged incapacitated person in2003, and compensation of, for example, $20,000 for thatappointment is awarded or anticipated to be awarded in thatsame year, then the appointee is precluded from receivinganother appointment in 2003 for which compensation inexcess of $15,000 is anticipated either in 2003 or in any singlefuture year. 2) If appointed as guardian in 2003, for which anannual commission of, for example, $20,000 is anticipated tobe awarded in the following year (2004), the appointee is pre-cluded from receiving another appointment in 2003 for whichcompensation in excess of $15,000 is anticipated to be award-ed either in 2003 or in any single future year.

b. The $75,000 RuleSection 36.2 (d) (2) establishes a limitation on appointmentsbased on an annual, aggregate amount of compensation. Forcalendar year 2007 and thereafter, if compensation is awardedin an aggregate amount of more than $75,000 during any calendar year (no matter what year the appointment wasmade), the appointee will be ineligible for any compensatedappointments during the next calendar year. It is the year ofthe award of compensation, and not the year of its actualreceipt, that activates the application of the rule. Like its$15,000 counterpart, the $75,000 rule is a limitation onappointments, and not on compensation; nothing in the$75,000 rule prevents a court’s award, or an appointee’sreceipt, of total compensation exceeding $75,000 in any calen-dar year. Excess compensation in one year simply preventscompensated appointments in the following year.

5. PROCEDURE AFTER APPOINTMENTa. Combined Notice Of Appointment And Certification

Of CompliancePart 36 appointees must complete and file with the fiduciaryclerk within 30 days of appointment a two-part form contain-ing a notice of appointment and certification of compliance (§36.4 [a][1]), which will be sent to the appointee by the courtimmediately after appointment. If the appointee cannot certi-fy qualification for appointment in the certification of compli-ance section of the combined form, or cannot accept appoint-ment for any other reason, the appointee must immediatelynotify the court (§ 36.4 [a][4]).The notice of appointment contains the date and nature of theappointment (§ 36.4 [a][2]), and the certification of compliancecertifies that the appointee is not disqualified from serviceand is not otherwise precluded by any limitation based oncompensation (§ 36.4 [a][3][i]; see § 36.2 [c], [d]). The appointeemust list all appointments received during the current calen-dar year (§ 36.4 [a][3][ii]), report the amount of compensationawarded for each (§ 36.4 [a][3][ii][B]), or, if not awarded, thetotal amount of compensation anticipated for each (§ 36.4(a)(3)(ii)(C)(i)), and separately identify appointments for whichcompensation is anticipated to exceed $15,000 in any calendaryear (§ 36.4 [a][3][ii][C][ii]). The appointee must also list allappointments for which compensation was awarded in theyear immediately preceding the current calendar year (§ 36.4[a][3][ii]) and report the amount awarded for each (§ 36.4[a][3][ii][B]). For all appointments, the name of the appointingjudge must be given (§ 36.4 [a][3][ii][A]).There are two exceptions to this procedure. Although exemptfrom the application of Part 36 (see § 36.1 [b][3]), uncompen-sated appointees must still file the combined notice and certi-fication form, but need only complete the notice of appoint-ment section of the form (§ 36.4 [a][1]). This will allow uncom-pensated fiduciary activity to be recorded and appropriatelyrecognized. The other exception applies to referees to computethe value of, and sell, real property. Although subject to theapplication and list process of Part 36 (see § 36.1 [a][9]), refer-ees to compute and sell are relieved from the obligation to filethe combined notice and certification form for appointmentswhere total compensation is not anticipated to exceed $750 (§36.4 [d]).

b. Approval Of CompensationJudges who approve compensation of more than $500 arerequired to file a statement of approval of compensation withthe Office of Court Administration pursuant to Judiciary Law §35-a (1)(a) and 22 NYCRR Part 26. Whenever a court is request-ed to approve compensation in excess of $500 for a Part 36appointee, a statement of approval of compensation on a formpromulgated by the Chief Administrator of the Courts must besubmitted for signature to the approving judge. The statementmust contain a confirmation signed by the fiduciary clerk thatthe combined notice of appointment and certification of com-pliance form was filed (§ 36.4 [b][1]). No judge may approvecompensation of more than $500 without this statement andthe signed confirmation of the fiduciary clerk (§ 36.4 [b][2]).Additionally, every approval of compensation in excess of$5000 must contain the judge’s written statement of the reasons for such approval (§ 36.4 [b][3]). After signing the orderawarding compensation and the statement of approval ofcompensation, the judge must file a copy of the order and theoriginal statement with the fiduciary clerk. The fiduciary clerkwill then forward the statement of approval of compensationto the Office of Court Administration for entry of the amountof compensation in its database under the name of the

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appointee. This will keep the database current for periodicpublication under section 36.5.The rules cite the standard for judicial approval of compensa-tion, viz., fair value for all services rendered that are necessaryto the performance of the appointee’s duties (§ 36.4 [b][4]).This determination remains in the sound discretion of thecourt and depends on the factual circumstances of each case.

6. REPORTING LAW FIRM COMPENSATIONSection 36.4 (c) obligates law firms to report, in writing, to theChief Administrator of the Courts whenever total compensa-tion in a single calendar year is $50,000 or more for Part 36appointments of law firm members, associates or employees.The report of compensation received by law firms is to be filedon form UCS-876 on or before March 31st following the calendar year reported.

The reporting of law firm compensation is for informationalpurposes only. Limitations based on compensation apply onlyto the individual appointee, not the firm, and the appointmentand compensation of one person in the firm are only consid-ered in certifying the availability of that individual for appoint-ment and do not affect the availability for appointment of anyother person in the firm.

7. PUBLICATIONThe notice of appointment and certification of compliance,statement of approval of compensation, and report of com-pensation received by law firms, filed pursuant to section 36.4,are public records, and the names of appointees and ofappointing judges, and the amounts of approved compensa-tion, are subject to periodic publication by the ChiefAdministrator of the Courts (§36.5).

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Instructions To Amend The UCS 870Application for Appointment Pursuant to Part 36

TO AMEND THE CATEGORIES OR COUNTIES OF ENROLLMENT:

• Send an e-mail to [email protected]

• Send a fax to (212) 428-2819or

• Write to OCA at the address listed below.

Include the foilowing information:

• Your full name• Your Fiduciary ID Number (FID#)• The first five digits of your Social Security Number

A link to (or copy of) your application will be sent to you by returne-mail (or fax or mail) along with a copy of your receipt. Pleaseprint both and make the changes, additions or deletions in ink onthe appiication and receipt. Sign and date each, attach anyrequired documentation (e.g. resume), and mail to:

Office of Court AdministrationP.O. Box 3171Church Street StationNew York, NY 10008

TO AMEND YOUR NAME, ADDRESS OR OTHER CONTACT INFORMATION:

• Send an e-mail to [email protected] with your changes,or

• Send a fax to (212) 428-2819 with your changes

Include the following information:

• Your fuil name• Your Fiduciary ID Number (FID#)• The first five digits of your Sociai Security Number

You may also mail a copy of your receipt with the changes marked in ink to:

Office of Court AdministrationP.O. Box 3171Church Street StationNew York, NY 10008

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24

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26

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(Mark "X" in appropriate boxes and provide all requested information.)

SUPREME COURT OF THE STATE OF NEW YORK

County: COUNTY

------------------------------------------------------------------------X

Title of Action

---------------------------------------------------------------------X

EX PARTE APPLICATION

for

APPROVAL OF SECONDARY APPOINTMENT(Pursuant to 22 NYCRR § 36.1(a)(10)

INDEX NO. / No. Yr.

APPROVAL of the following SECONDARY APPOINTEE is respectfully requested (attach one page

resume):

Name:

Address;

Phone/FAX/Email

The secondary appointee will serve as: G COUNSEL G ACCOUNTANT G APPRAISER

G AUCTIONEER G REAL ESTATE BROKER G PROPERTY MANAGER.

The secondary appointee G is on the list established by the Chief Administrator of the

Courts for the category of appointment requested.

G is NOT on the list established by the Chief Administrator of the

Courts for the category of appointment requested, but is otherwise

qualified for appointment pursuant to Part 36 of the Rules of the

Chief Judge.

The reasons for the request are as follows (If a NON-LIST appointment is requested, include

explanation of good cause for the appointment; if the Guardian or Receiver requests that he/she, or a person

associated with his/her law firm, be appointed counsel, include an explanation of the compelling reason for

the appointment.):

.

DATED: Signature:

Print Name:

Sworn to before me this day G GUARDIAN G RECEIVERof . 200 .

Address:

Notary Public

Phone

FAX

Email

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(Mark "X" in appropriate boxes and provide all requested information.)

2. (Choose (a) or (b) by marking “X” in appropriate box.)

a. G The appointee is on the list established by the Chief Administrator of the Courts for the category of appointment requested;

OR

b. G The appointee is NOT on the list established by the Chief Administrator of the Courts for the category of appointment requested,

but is otherwise qualified for appointment pursuant to Part 36 of the Rules of the Chief Judge, and the Court is filing with the fiduciaryclerk form UCS 872.5 (STATEMENT OF REASONS FOR NON-LIST APPOINTMENT (§ 36.2(b)(2));

3. (If this is an appointment of Guardian or Receiver, or person associated with his/her law firm, as COUNSEL, mark “X” infollowing box and provide compelling reason.)

G The compelling reason for appointment of the Guardian or Receiver, or a person associated with his/her law firm, as counsel is

as follows: ;


County: COUNTY

------------------------------------------------------------------------X

Title of Action

---------------------------------------------------------------------X

DECISION AND ORDER

APPROVING

EX PARTE APPLICATION

for

SECONDARY APPOINTMENT(Pursuant to 22 NYCRR § 36.1(a)(10)

INDEX NO. / No. Yr.

Name of Judge:

Upon ex parte application of , asName

G GUARDIAN G RECEIVER , dated , for approval of a Secondary Appointment,

it is determined that

1. A Secondary Appointment is necessary and

Name:

Address;

Phone/FAX/Email

is appropriate for appointment as: G COUNSEL G ACCOUNTANT G APPRAISER

G AUCTIONEER G REAL ESTATE BROKER G PROPERTY MANAGER;

1

29

Title of Action: Index No. / No. Yr.

ACCORDINGLY, it is

ORDERED that this application for approval of a secondary appointment as

G COUNSEL G ACCOUNTANT G APPRAISER G AUCTIONEER

G REAL ESTATE BROKER G PROPERTY MANAGER is GRANTED.

ORDERED that the secondary appointee shall immediately

Name of Secondary Appointee

file form UCS 872;

ORDERED that compensation for the secondary appointee is subject to PRIOR court approval upon

submission of an application showing experience/expertise, services rendered, time expended, prevailing rate in

the community, rate charged, challenges presented and results achieved;

ORDERED that the applicant shall serve a copy of this order upon the secondary appointee and all

persons entitled to notice in this action/proceeding by certified mail.

DATED: Signature:

File copy of this order with the Fiduciary Clerk

2

30

UCS - 876 - Effective January 1, 2004

3. Name of Law Firm:

Street ZipCity/Town/Village State

Phone Fax E-Mail

$

REPORT OF COMPENSATION RECEIVED BY LAW FIRMS FORAPPOINTMENTS PURSUANT TO PART 36 OF THE RULES OF THECHIEF JUDGE (§ 36.4(c))

(Complete if total compensation from appointment of law firm’s members, associates and employees pursuant to Part 36 of the

Rules of the Chief Judge exceeds $50,000 in a single calendar year (January 1 to December 31). File by March 31 following thest

calendar year reported.)

1. Calendar Year Reported: 2. Law Firm Tax ID Number

Year GGGG TID# GG-GGGGGGG

4. Address/Phone/FAX/ E-mail:

5. List the names and Fiduciary Identification Numbers of the members, associates and employees of the law firm for whom

compensation from appointments has been approved during the calendar year reported, and enter for each the total

compensation approved during that year. For a member, associate or employee with no Fiduciary Identification Number

(FID#), enter “Non-List” and his/her Social Security Number in space provided for FID#, (attach additional sheets as needed).

NAME FIDUCIARY IDENTIFICATIONNUMBER

TOTAL APPROVEDCOMPENSATION IN CALENDAR

YEAR REPORTED

$

$

$

$

$

$

$

6. Total of all compensation entered in item 5:

Date: Signature:

Print Name:

Title:

(e.g., managing attorney, member)

Mail to: OCA, Appointment Processing Unit, 25 Beaver Street, Room 840, New York NY 1000431

Attorney for the Alleged Incapacitated Person 3 Peachetta deFreitas, Esq. Law Offices of Alfreda B. Kenny

BIOGRAPHY

Peachetta S. deFreitas, Esq., a graduate of New York Law School, is an associate in the

Law Office of Alfreida B. Kenny, 11 Park Place, New York, New York. Ms. deFreitas has been

admitted to the bar of the State of New York since 1994 and is admitted to the bars of the State

of New Jersey and the United States Supreme Court.

Ms. deFreitas practices in the areas of adult guardianships under Article 81 of the Mental

Hygiene Law, elder law, trusts and estates, and real estate transactions. In addition to

representing petitioners and objectants in Article 81 proceedings, and guardians appointed in

Article 81 proceedings, Ms. deFreitas has been appointed by the Supreme Court of the State of

New York as, and has served as, Court Evaluator, Guardian of the Person, and Guardian of the

Property in Article 81 proceedings. Ms. deFreitas represents clients in the Surrogate’s Court of

the State of New York and has been appointed and as, and has served as, guardian ad litem in the

Supreme Court and the Surrogate’s Court.

Ms. deFreitas has participated as a faculty member for training programs on adult

guardianships under Article 81 of the Mental Hygiene Law, approved by the Office of Court

Administration, offered by the New York County Lawyers’ Association and the New York City

Bar.

Ms. deFreitas is a past Chairperson of the Committee on Legal Problems of the Aging of

the New York City Bar.

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Alfreida B. Kenny, Esq.11 Park Place, 10 Fl.th

New York, New York 10007(212( 809-27000

CONSIDERATIONS FOR COUNSEL FOR THE ALLEGED INCAPACITATEDPERSON IN AN ARTICLE 81 GUARDIANSHIP PROCEEDING.

November 30, 2010

I. THE ROLE OF COUNSEL

� A lawyer is to “abide by a client’s decisions concerning the objectives ofrepresentation and, as required by Rule 1.4 shall consult with the client as to themeans by which they are to be pursued”. 22 NYCRR, Part 1200, Rule 1.3.

� It is the role of counsel to advocate the wishes of the client even if counselbelieves that the client’s judgment is not good, what the client wants is not in thebest interest of the client, or what the client wants could prove to be detrimental tothe client over the course of time.

� It is the role of counsel to counsel client, make recommendations to the client,attempt to persuade the client to pursue the recommendations that counsel hasmade to the client. Ultimately, the client makes the decision and counsel mustfollow the directions of the client.

� Poor judgment and bad decisions are not tantamount to diminished capacity.

� If the client has diminished capacity, counsel must determine whether the clienthas sufficient capacity to direct counsel. 22 NYCRR, Part 1200, Rule 1.14 states,“When a client’s capacity to make adequately considered decisions in connectionwith a representation is diminished, whether because of minority, mentalimpairment or for some other reason, the lawyer shall, as far as reasonablypossible, maintain a conventional relationship with the client.

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II. RETAINED COUNSEL

� Initial Meeting with the AIP and Subsequent meetings.

� Introduce yourself to the AIP and explain why you are meeting with theAIP.

� Inform the AIP who asked you to meet with the AIP and why.

� Explain to the AIP the petition, who is involved, the petitioner, as well asother family members and/or friends, and how these people are involved inthe Article 81 guardianship proceeding.

� Meet with the AIP frequently in your office, as well as at the AIP’sresidence. Meet with the AIP alone, and at other times with those whomthe AIP chooses.

� Explain to the AIP that it sometimes is important to meet with theAIP alone and not in the presence of others to protect lawyer-clientprivilege, as well as to ascertain what the AIP recalls without theassistance of others.

� Counsel also should meet alone with the AIP separately to elicitinformation that the AIP may not be comfortable relating tocounsel if others are present, including those individuals whom theAIP fears or those individuals who may be exerting undueinfluence upon the AIP.

� On each occasion that counsel meets with the AIP, review with the AIPwhat was discussed when counsel last met with the AIP or spoke with theAIP during a telephone discussion.

� Make the best possible assessment of the AIP’s abilities or lack thereofregarding short-term memory and long-term memory.

� It is important to meet with the AIP frequently to avoid the AIP forgettingcounsel’s name, who counsel is, why counsel is meeting with the AIP, andthe fact that the AIP has retained counsel.

� Objectants, including the court evaluator, may suspect that so-called retained counsel was not retained by the AIP because theAIP allegedly does not have the capacity to enter into a contract.

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Although difficult, counsel who represents a family member of an AIP may be able to1

fashion least restrictive alternatives to guardianship. If counsel represents family members,counsel should advise the Court whom counsel represents. It is my experience that in mostcases, the Court will allow counsel for family members to participate in the hearing and to worktoward a settlement. The Court will understand without anyone making a statement that counselhas determined that the AIP cannot direct counsel but that counsel will work for the best interestsof the AIP. However, if counsel’s actions demonstrate to the Court that counsel is in factrepresenting the interests of the family member rather than the AIP, the Court will not be soinviting to counsel.

� If the court evaluator or others advise the Court of the possibilitythat the AIP does not have capacity to retain counsel, the Courtgenerally will conduct a hearing solely for the purpose ofdetermining whether the AIP had or has capacity to retain counsel.

� Mental Hyg. Law § 81.10(a) provides that the AIP has the right tochoose and engage legal counsel. The Court is to determinewhether “retained counsel has been chosen freely andindependently by the alleged incapacitated person”.

� Counsel risks that the Court will determine that counsel was not“freely and independently” chosen by the AIP. In such an event,counsel cannot be paid from the funds of the AIP if a guardian isappointed.

� Counsel should determine, if possible, prior to be being retainedwhether the AIP can direct counsel in counsel’s representation ofthe AIP. If retained counsel concludes that the AIP cannot directcounsel, then counsel cannot represent the AIP, and therebyadvocate for the wishes of the AIP. However, counsel canrepresent family members, such as spouse and children, and byrepresenting those individuals proceed to work for the best interestof the AIP.1

� If counsel is retained and paid by family members to represent theAIP, the Court must make a determination that the AIP freely andindependently has chosen counsel to represent the AIP. Adetermination that the AIP acted freely becomes more difficult forthe Court to make when the facts likely will show that prior to thecommencement of the proceeding, the AIP did not know counsel,counsel is a friend of a member of the AIP’s family, or counselrepresents a member of the AIP’s family. It will becomeincreasingly difficult, but not impossible, for the Court to make a

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determination that the AIP acted freely if family members or othersare paying the legal fees incurred in connection with counselrepresenting the AIP.

� If counsel is retained by family members to represent theAIP, there likely will be a conflict between what the familymembers want counsel to do and what the AIP wantscounsel to do. Counsel’s loyalty and duties are owed to theAIP and not to those paying the bills. If family membersare paying the legal fees, the retainer agreement shouldexpressly state that notwithstanding that the familymembers are paying the legal fees, counsel is bound torepresent the AIP in accordance with the wishes of, and theinstructions given by, the AIP and as directed by the AIP,even if such representation is contrary to the wishes of thepayer of the bills.

� The family members may want counsel to represent the AIPin a fashion that is in the best interest of the AIP, while theAIP may want counsel to represent the AIP in a manner thatis not in the best interest of the AIP but is what the AIPwishes. For example, counsel may be able to resolve theArticle 81 proceeding with a settlement by having his clientagree to relocate to an assisted-living facility and give apower of attorney to #1 Son. The members of the AIP’sfamily agree that this is the perfect solution; it avoids theappointment of a guardian, #1 Son, who is an accountant,will handle Mom’s financial affairs, the legal fees will bereduced because there will not be a long and drawn-outhearing, and Mom will not have to listen to the testimonyof friends and family members when they relate to theCourt how she is forgetful and wanders if she is notaccompanied by someone. Mom says to all of them, Go tohell”. I am not leaving my residence of 50 years. I am notforgetful; I am quite capable of handling my own affairs,and I don’t need my children handling my money, even if#1 Son is an accountant. I can handle my own moneybetter than he can handle my money.” The AIP directscounsel not to settle, to represent her at the hearing, andargue to the Court that she does not have any functionallimitations that impair her ability to provide for herpersonal or property management and that she does notneed a guardian of any sort. Clearly, counsel must advocate

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what his client, the AIP, asks. No doubt, no matter howmany times counsel explains to the family memberscounsel’s ethical obligations, the family members will notunderstand why counsel will advocate for a position thatcounsel knows is not in the best interests of his client, theAIP.

� When the bills are paid by one other than the client, ethicalissues are likely to arise.

III. COURT-APPOINTED COUNSEL

� Court-appointed, as retained counsel, must abide by the wishes and directions ofthe client. If court-appointed counsel believes that the capacity of the AIP is sodiminished that the AIP cannot reason or direct counsel, counsel should considerwhether it may be more appropriate for the Court to appoint a guardian ad litem.

� However, if counsel is appointed because Article 81 mandates the appointment ofcounsel, counsel may be compelled to only represent the AIP in connection withprotecting the due process rights and other rights of the AIP, rather thanadvocating a frivolous position. 22 NYCRR, Part 1200, Rule 1.16.

IV. PREPARATORY WORK PRIOR TO THE HEARING

� Communicating with the Court Evaluator

� Contact the Court Evaluator as soon as possible after counsel believes thatcounsel understands the facts and the AIP’s position. Give the CourtEvaluator the facts that will help your client. Counsel also should give tothe Court Evaluator facts that are not so helpful that counsel knows thatthe Court Evaluator will learn from other sources. Elicit from the CourtEvaluator what the Court Evaluator has learned from others.

� Ask the Court Evaluator when the Court Evaluator would like to meetwith the AIP.

� Prepare the AIP for the meeting with, and interview by, the CourtEvaluator.

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� Be present at the meeting between the AIP and the CourtEvaluator.

� If your client, the AIP, is forgetful, find a way to handle theforgetfulness without interfering with the Court Evaluator’sinterview of the AIP.

� You may want to tell the AIP not to worry if she cannot remembereverything and advise the AIP to tell the Court Evaluator when shecannot remember and that whatever it is that she has forgotten, sheis sure that she will remember before the Court Evaluator leaves.

� Do not interfere with the Court Evaluator interviewing the AIP. Beprepared for the Court Evaluator to ask the AIP tough questions,which sometimes may seem to be insensitive. Counsel’sinterference with the Court Evaluator could result in doing moredamage to the AIP than allowing the AIP to answer the CourtEvaluator’s questions, even if incorrectly.

� Begin early on discussing with the Court Evaluator why your client doesnot need a guardian and/or the least restrictive alternatives to aguardianship.

� As you learn facts that will assist your client, give those facts to the CourtEvaluator. If you have documents that demonstrate that an individual whoseeks to be a guardian is unfit, furnish those documents to the CourtEvaluator. For example, Son #2 was the agent under a power of attorneyand you have bank statements showing that he used Mom’s money to payhis bookie in New Jersey. You also have receipts showing that Son #2used Mom’s money to purchase expensive jewelry for Son #2's mistress. Deliver copies of these documents to the Court Evaluator.

� Provide the Court Evaluator, if appropriate, with the AIP’s family history,information regarding family discord, and information regarding the assetsof the AIP.

� Investigate the Facts.

� After having met with the AIP, at least once, meet with or speakwith friends or family members whom counsel believes will givethe facts.

� Do not rely solely upon what the AIP tells you. Talk with family

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members, home aides, friends, and religious leaders. It is fromthese sources that counsel will learn many of the weaknesses of theAIP’s position.

� When counsel believes that counsel has the facts, counsel shouldengage the AIP in a straight-forward discussion of the facts thatlikely will be presented at a hearing. Listen to the AIP’s responsesand if the responses are not complete or rational, let the AIP knowthat the AIP’s responses will not serve her well at a hearing. Donot sugarcoat what the AIP likely will encounter during the Article81 proceeding, including, but not limited to, family members lying.

� If counsel believes that the petitioner likely will meet petitioner’sburden by proving by clear and convincing evidence that (1) theAIP has functional limitations (2) those functional limitationsimpair the AIP’s ability to provide for her personal needs andproperty management, (3) the AIP lacks understanding orappreciation of the nature and consequences of the AIP’sfunctional limitations, and (4) the appointment of a guardian isnecessary to prevent harm to the AIP, counsel should advise theAIP of counsel’s beliefs and the basis of counsel’s beliefs.

� After having had a straightforward discussion with the AIP,counsel should make every attempt to persuade the AIP to accept asettlement that would provide the least restrictive alternatives to aguardianship.

V. THE HEARING

� Work toward having the hearing as soon as possible. If your client is an elderlyperson, the longer the hearing is delayed, the more likely the AIP will lose his/herability to remember. It is likely that with delay, the AIP will becomeprogressively worse.

� Up to the date of the hearing, counsel would have had frequent visits withthe AIP, to be assured that the AIP remembers who counsel is, rememberswhat the Court proceeding concerns, and how the AIP is to conducthimself/herself in the Court.

� If counsel has told the AIP what to expect during the hearing, thatoftentimes reduces some of the AIP’s nervousness.

� In most instances, the AIP should not testify. However, if the AIP does

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not suffer from cognitive limitations, can explain her thoughts well,understands her limitations, can explain how she has addressed herlimitations or intends to address her limitations, does not get flustered,then the AIP may be a decent witness. If the AIP rambles, do not permitthe AIP to testify.

� If the AIP is to testify, you must prepare the AIP for cross-examination. Inaddition to cross-examination, the presiding Justice is likely to ask the AIPa number of questions.

� If counsel discerns that the AIP is intimidated by family members or homecare attendants, or friends who have cared for the AIP, ask the Court topermit the AIP to testify, on the record, in camera.

� Object to any medical facts or evidence that are protected by physician-patient privilege or was not obtained in accordance with Mental Hyg. Law§ 81.09(d)

� Jury trials are rare in Article 81 proceedings. The AIP has a right to a jurytrial. If the AIP intends to exercise the AIP’s right to a jury trial thedemand for a jury trial must be made on or before the return datedesignated in the order to show cause. Mental Hyg. Law § 81.11(f). Failure to timely demand a jury trial will be deemed a waiver of the rightto trial by jury.

� A jury trial may be difficult for the AIP. Counsel must assess the AIP’sstamina, emotional and psychological we–being, ability to hear unpleasantfacts, ability to sit still and attentive for long periods of time, ability tomaintain the appropriate demeanor throughout the trial as the juryobserves every movement that the AIP makes.

� In most cases, it generally is best to avoid a full hearing. Counsel shoulduse all of counsel’s resources to devise creative solutions that would be theleast restrictive alternatives to guardianship.

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The Court Evaluator: Duties, Responsibilities & Ethics 4 Linda Redlisky, Esq. Rafferty & Redlisky

Rafferty & Redlisky, LLP 800 Westchester Ave S-608 Rye Brook, NY 10573 914.813.1376 [email protected]

Ms. Redlisky is a partner with the firm of Rafferty & Redlisky, LLP where she concentrates on health care law, guardianship matters and Medicaid recoveries on behalf of health care facilities. She is routinely appointed to serve as Court Evaluator, Guardian and Counsel to the Alleged Incapacitated Person in complex matters, that include the prosecution of surcharge proceedings against suspended or removed fiduciaries. Prior to becoming a partner with Rafferty & Redlisky, Ms. Redlisky was a senior associate at the law firm of Wolf Haldenstein Adler Freeman & Herz LLP in New York, New York. While with Wolf Haldenstein, she represented nursing homes and health care organizations while also practicing general civil and commercial litigation in state and federal courts.

Ms. Redlisky, a 1992 graduate of the Albany Law School of Union University, chaired and was the recipient of the Gabrielli National Family Law Competition scholarship. She also was a member of the National Environmental Moot Court Team and a participant in the Domenick L. Gabrielli Appellate Advocacy Moot Court Competition. Ms. Redlisky earned her under graduate degree from the State University of New York at Binghamton, where she graduated with a Bachelor of Arts degree with Honors in 1989. Ms. Redlisky is a member of the Westchester Women’s Bar Association, New York State Bar Association, its Health Care Law Section and Committee on Women in the Law, the New Rochelle Bar Association and the Columbian Lawyers Association of Westchester County. She enjoys volunteering to judge moot court competitions, rock-climbing and hiking with her family.

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Mental Hygiene Law 81.09

(a) At the time of the issuance of the order to show cause, the court shall appoint a court evaluator. (b) 1. The court may appoint as court evaluator any person including, but not limited to, the mental hygiene legal service in the judicial department where the person resides, a not-for-profit corporation, an attorney-at-law, physician, psychologist, accountant, social worker, or nurse, with knowledge of property management, personal care skills, the problems associated with disabilities, and the private and public resources available for the type of limitations the person is alleged to have. The name of the court evaluator shall be drawn from a list maintained by the office of court administration; 2. if the court appoints the mental hygiene legal service as the evaluator and upon investigation in accordance with section 81.10 of this article it appears to the mental hygiene legal service that the mental hygiene legal service represents the person alleged to be incapacitated as counsel, or that counsel should otherwise be appointed in accordance with section 81.10 of this article for the person alleged to be incapacitated, the mental hygiene legal service shall so report to the court. The mental hygiene legal service shall be relieved of its appointment as court evaluator whenever the mental hygiene legal service represents as counsel, or is assigned to represent as counsel, the person alleged to be incapacitated. (c) The duties of the court evaluator shall include the following: 1. meeting, interviewing, and consulting with the person alleged to be incapacitated regarding the proceeding. 2. determining whether the alleged incapacitated person understands English or only another language, and explaining to the person alleged to be incapacitated, in a manner which the person can reasonably be expected to understand, the nature and possible consequences of the proceeding, the general powers and duties of a guardian, available resources, and the rights to which the person is entitled, including the right to counsel. 3. determining whether the person alleged to be incapacitated wishes legal counsel of his or her own choice to be appointed and otherwise evaluating whether legal counsel should be appointed in accordance with section 81.10 of this article.

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4. interviewing the petitioner, or, if the petitioner is a facility or government agency, a person within the facility or agency fully familiar with the person's condition, affairs and situation. 5. investigating and making a written report and recommendations to the court; the report and recommendations shall include the court evaluator's personal observations as to the person alleged to be incapacitated and his or her condition, affairs and situation, as well as information in response to the following questions: (i) does the person alleged to be incapacitated agree to the appointment of the proposed guardian and to the powers proposed for the guardian; (ii) does the person wish legal counsel of his or her own choice to be appointed or is the appointment of counsel in accordance with section 81.10 of this article otherwise appropriate; (iii) can the person alleged to be incapacitated come to the courthouse for the hearing; (iv) if the person alleged to be incapacitated cannot come to the courthouse, is the person completely unable to participate in the hearing; (v) if the person alleged to be incapacitated cannot come to the courthouse, would any meaningful participation result from the person's presence at the hearing; (vi) are available resources sufficient and reliable to provide for personal needs or property management without the appointment of a guardian; (vii) how is the person alleged to be incapacitated functioning with respect to the activities of daily living and what is the prognosis and reversibility of any physical and mental disabilities, alcoholism or substance dependence? The response to this question shall be based on the evaluator's own assessment of the person alleged to be incapacitated to the extent possible, and where necessary, on the examination of assessments by third parties, including records of medical, psychological and/or psychiatric examinations obtained pursuant to subdivision (d) of this section. As part of this review, the court evaluator shall consider the diagnostic and assessment procedures used to determine the prognosis and reversibility of any disability and the necessity, efficacy, and dose of each prescribed medication;

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(viii) what is the person's understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living; (ix) what is the approximate value and nature of the financial resources of the person alleged to be incapacitated; (x) what are the person's preferences, wishes, and values with regard to managing the activities of daily living; (xi) has the person alleged to be incapacitated made any appointment or delegation pursuant to section 5-1501, 5-1505, or 5-1506 of the general obligations law, section two thousand nine hundred sixty-five or two thousand nine hundred eighty-one of the public health law, or a living will; (xii) what would be the least restrictive form of intervention consistent with the person's functional level and the powers proposed for the guardian; (xiii) what assistance is necessary for those who are financially dependent upon the person alleged to be incapacitated; (xiv) is the choice of proposed guardian appropriate, including a guardian nominated by the allegedly incapacitated person pursuant to section 81.17 or subdivision (c) of section 81.19 of this article; and what steps has the proposed guardian taken or does the proposed guardian intend to take to identify and meet the current and emerging needs of the person alleged to be incapacitated unless that information has been provided to the court by the local department of social services when the proposed guardian is a community guardian program operating pursuant to the provisions of title three of article nine-B of the social services law; (xv) what potential conflicts of interest, if any, exist between or among family members and/or other interested parties regarding the proposed guardian or the proposed relief; (xvi) what potential conflicts of interest, if any, exist involving the person alleged to be incapacitated, the petitioner, and the proposed guardian; and (xvii) are there any additional persons who should be given notice and an opportunity to be heard.

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In addition, the report and recommendations shall include any information required under subdivision (e) of this section, and any additional information required by the court. 6. interviewing or consulting with professionals having specialized knowledge in the area of the person's alleged incapacity including but not limited to mental retardation, developmental disabilities, alcohol and substance abuse, and geriatrics. 7. retaining an independent medical expert where the court finds it is appropriate, the cost of which is to be charged to the estate of the allegedly incapacitated person unless the person is indigent. 8. conducting any other investigations or making recommendations with respect to other subjects as the court deems appropriate. 9. attending all court proceedings and conferences. (d) The court evaluator may apply to the court for permission to inspect records of medical, psychological and/or psychiatric examinations of the person alleged to be incapacitated; except as otherwise provided by federal or state law, if the court determines that such records are likely to contain information which will assist the court evaluator in completing his or her report to the court, the court may order the disclosure of such records to the court evaluator, notwithstanding the physician/patient privilege, the psychologist/patient privilege, or the social worker/client privilege as set forth in sections four thousand five hundred four, four thousand five hundred seven, and four thousand five hundred eight of the civil practice law and rules; if the court orders that such records be disclosed to the court evaluator, the court may, upon the court's own motion, at the request of the court evaluator, or upon the application of counsel for the person alleged to be incapacitated, or the petitioner, also direct such further disclosure of such records as the court deems proper. (e) The court evaluator shall have the authority to take the steps necessary to preserve the property of the person alleged to be incapacitated pending the hearing in the event the property is in danger of waste, misappropriation, or loss; if the court evaluator exercises authority under this subdivision, the court evaluator shall immediately advise the court of the actions taken and include in his or her report to the court an explanation of the actions the court evaluator has taken and the reasons for such actions.

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(f) When judgment grants a petition, the court may award a reasonable compensation to a court evaluator, including the mental hygiene legal service, payable by the estate of the allegedly incapacitated person. When a judgment denies or dismisses a petition, the court may award a reasonable allowance to a court evaluator, including the mental hygiene legal service, payable by the petitioner or by the person alleged to be incapacitated, or both in such proportions as the court may deem just. When the person alleged to be incapacitated dies before the determination is made in the proceeding, the court may award a reasonable allowance to a court evaluator, payable by the petitioner or by the estate of the decedent, or by both in such proportions as the court may deem just.

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ______________________________________________ Index No. In the Matter of the Application of

REPORT OF COURT EVALUATOR Petitioner,

For the Appointment of a Guardian for the Property Management and Personal Needs of

JANE DOE

A Person Alleged to be Incapacitated

Respondent,

_____________________________________________

LINDA A. REDLISKY, an attorney at law duly admitted to practice in the State of New York, affirms the truth of the following under penalty of perjury:

APPOINTMENT, JURISDICTION, VENUE

1. On the 14th day of December, 2011 an Order by Justice

appointed me to investigate the claims made in the Petition, explain this proceeding to JANE

DOE (or,‟Ms.Doe”) and report to the Court pursuant to MHL §81.09. I subsequently filed the

Notice of Appointment and Certificate of Compliance required to qualify as Court Evaluator.

2. JANE DOE currently resides in Room ____of the _______ Nursing Home (“ “), a

skilled nursing and rehabilitation center, located at New York, N.Y. The Petitioner is the

executive director of the residence where Ms. Doe currently resides and thus has standing under

MHL §81.06 (a) (7) to commence this proceeding. Venue is properly set in New York County,

and the Court will have jurisdiction over the parties affected once affidavits of service indicating

service in accordance with the court’s order are submitted and they are accepted by the court.

OVERVIEW, BACKGROUND AND GENERAL DESCRIPTION OF CIRCUMSTANCES

3. This Article 81 proceeding was brought by Order to Show Cause signed

Ms. Doe is represented by court appointed counsel, Esq., and the petitioner is

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represented by Linda Redlisky, Esq., both of whom provided considerable assistance during the

course of this investigation.

4. JANE DOE is ___ years old, having been born on or about ___________ . She is

alleged to be confused, have poor insight and judgment, have a diagnosis of , and

an inability to negotiate with third parties, all of which are alleged to render her unable to

provide for her property management. (Verified Petition ¶ 15) The petition further alleges that

Ms. Doe’s diagnosis of requires that a guardian also have personal needs powers.

(Verified Petition ¶ 17).

5. Although she can speak English and is occasionally briefly and minimally responsive to

questions, I believe that Ms. Doe cannot participate in these proceedings in any meaningful

fashion. I also believe that her participation would not be useful to the Court in making a

determination in this matter. Based upon my observation of Ms. Doe, she is likely to become

anxious, tearful, agitated and disruptive to the Court’s proceeding. As a result, I respectfully

recommend that her presence at a hearing be waived. I have discussed this issue with Ms. Doe’s

court-appointed counsel, who agrees that she could not participate in these proceedings in any

meaningful fashion.

6. JANE DOE has resided at Nursing Home since on or about DATE. She was transferred

there from New York Hospital where she was treated for a right hip fracture which apparently

required a surgical procedure to repair. Prior to her hospitalization at New York Hospital, she

was reported to have cared for herself while living in the community at .

7. A review of Ms. Doe’s medical records at (conducted jointly with her court-

appointed counsel) shows that her current significant diagnoses are:

8. According to her medical records, Ms. Doe’s current medications are:

9. There is no evidence that Ms. Doe ever married; nor does it appear that she had any

children. None of her known relatives live in the United States. She does have living relatives,

mostly in England. Ms. Doe is believed to have worked as a __ .

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SOURCES OF INFORMATION

10. Information and observations in this report are based on material in the Petition and its

extensive exhibits, and on information that was obtained from the following sources:

a. Personal interview of Ms. Doe at NURSING HOME on DATE.

b. Personal interview of Ms. Doe’s social worker at NURSING HOME on DATE.

c. Various telephone and electronic communications with Linda Redlisky, Esq., counsel

for petitioner, and _______, Esq., counsel for Ms. Doe;

d. Telephone communications with and faxed material from the pension fund

_____________;

e. Information received from various banks and financial institutions as noted in the

petition, as discovered during my investigation of Ms. Doe’s assets, and as reported by her court-

appointed counsel pursuant to his investigation;

f. Review of medical records maintained by NURSING HOME related to Ms. Doe;

g. E-mail communication with NAME, the RELATION of Ms. Doe.

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STATUTORY QUESTIONS

11. The following information is provided in specific response to the 17 questions set forth in

Mental Hygiene Law §2181.09 (c) (5):

(i) AIP’s Position: STATE WHETHER OR NOT THE AIP WAS ABLE TO

ARTICULATE A POSITION OR NOT AND IF SO, WHAT WAS HER POSITION.

(ii) Desire for Counsel: STATE WHETHER OR NOT THE AIP REQUESTED

COUNSEL. (IF YES, THE COURT SHOULD HAVE BEEN NOTIFIED IN ADVANCE OF

THIS REPORT)

(iii) Ability to Come to Courthouse:

(iv) Ability to Participate: STATE YOUR OPINION AS TO WHETHER OR NOT

THE AIP UNDERSTANDS AND CAN PARTICIPATE.

(v) Meaningful Participation: For the reasons articulated in section “iv” above, I do OR

do not believe that Ms. Doe would be able to meaningfully participate in the proceedings…

(vi) Available Resources: THIS QUESTION REQUESTS WHAT TYPE OF

FAMILY OR FRIEND SUPPORT THE AIP HAS AVAILABLE TO HER, AS WELL AS HER

CONNECTION WITH WHOMEVER SHE RESIDES (EITHER IN THE COMMUNITY OR

AT A NURSING HOME, ETC) . YOU ALSO SHOULD LIST WHETHER OR NOT THE AIP

HAS A WILL, POA, AND HEALTH CARE PROXY.

(vii) Activities of Daily Living: BASED ON YOUR OBSERVATION OF THE AIP

AND REVIEW OF MEDICAL RECORDS LET THE COURT KNOW WHAT ADL’S THE

AIP CAN OR CANNOT DO.

(viii) Understanding of Abilities: I DO OR DO NOT believe that Ms. Doe understands or

appreciates her inability to conduct activities of daily living with respect to either personal affairs

or property management. She cannot appreciate the extent or nature of her deficits or the

consequences of her decisions.

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(xi) Financial Resources: Ms. Doe receives Social Security in the amount of $____ ; she

receives a monthly pension of $_____ which is directly deposited into her account at _________

Bank.

Known Assets Apparent Apparent Value Comments as of (Date) Current Status Beneficiary________________________

Transferred to Annuity ITT Hartford which is now Putnam: Marine Midland Upon information checking account # and belief, now (Bank) Current Balance

Republic Bank Upon information of Savings and belief may be Account # HSBC account #

Property located Several items Salvation in apartment of jewelry held Army Greater at residence; New York remainder missing, Division may have been (Article IV destroyed of Will)

_________________________________________________________________________ Pension from Active: was $ monthly (UNION) being direct deposited into Bank X _________________________________________________________________________ Social Security Active $986 received by NH

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(x) Preferences for Daily Living:

(xi) Powers of Attorney:

(xii) Least Restrictive Form of Intervention: It is my opinion that the least restrictive form

of intervention would be____________________.

(xiii) Others Financially Dependent: I did not become aware of any individuals

financially dependent upon Ms. Doe.

(xiv) Proposed Steps: It is proposed that the Court appoint a guardian of the person and

property and that unless subsequent application is made to the Court that Ms. Doe continue to

reside at NURSING HOME.

(xv) Potential Conflicts of Interest among Family Members: No overt conflict of interest

was discovered during the course of my investigation and her family does not play a significant

day-to-day role in her life.

(xvi) Conflicts of Interest with Possible Guardians: No guardian has been proposed and

so no potential conflict was discovered.

(xii) Additional Persons to be Notified: I became aware of no additional persons to be

notified of this proceeding.

INTERVIEWS

12. I engaged in the following interviews from which I obtained the following relevant

information:

a. Personal Interview of Ms. Doe on (DATE)

b. Telephone Interview with Retirement Services Clerk, (UNION NAME)

I had various communications with and received written information from representatives

of (UNION NAME). These indicate that Ms. Doe receives a monthly pension of $____ which

until (DATE) was electronically deposited in Bank account #___________________.

c. E-mail Communication with (NAME OF RELATIVE) of JANE DOE.

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ADMINISTRATIVE MATTERS

13. I duly filed with this Court a Notice of Appointment and Certification of Compliance,

together with a Consent and Qualifying Affidavit.

14. I received a copy of the Order to Show Cause, the Petition and associated papers in a

timely manner.

15. The information in the Petition, signed by APPROPRIATE OFFICER, and the interviews

and other sources of information described in this report provide an adequate basis for this Court

to inquire into whether a guardianship is necessary.

16. The Court therefore will have jurisdiction over all the necessary parties, provided that

sufficient proofs of service are submitted and are accepted by the Court

RECOMMENDATIONS

17. In light of the circumstances described in this report and in the Petition, I respectfully

recommend that the Court:

a. Waive Ms. Doe’s presence at the hearing:

b. Find that Ms. Doe is incapacitated, likely to suffer harm because she cannot provide

for her personal and property management, and that she does not appreciate the nature and

consequence of this inability;

c. Appoint a suitable person or organization to act in the capacity of guardian of the

person and property who can manage her person and property needs, continue to investigate and

marshal her assets, spend-down to maintain Ms. Doe’s eligibility for public benefits AND ANY

OTHER RECOMMENDATIONS.

RESPECTFULLY SUBMITTED,

____________________________

Dated: Certified Pursuant to NYCRR 130.1-1

Family Health Care Decisions Act 5 Peter J. Strauss, Esq. Epstein, Becker & Green, P.C.

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1NY:15201650.1

New York’s 2010 Family Health Care Decisions Act

Major step forward or a Modest One?

Palliative Care Information Act (2011)Palliative Care Access Act (2011)

Peter J. Strauss, Esq. (212) 351-4746

Epstein Becker & Green, P.C.250 Park Avenue

New York, New York [email protected]

Distinguished Adjunct Professor of LawThe New York Law School

185 W. BroadwayNew York, New York

[email protected]

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The Foundation of the Legal Debate

The doctrine of informed consent was established by the case of Schloendorff v. Society of New York Hospital, 211 N.Y. 1 25 (1914) where Justice Benjamin Cardozo, then on the New York Court of appeals, wrote:“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”

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• See also Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261 (1990)

• “The common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment”

• “...the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be viewed from our prior decisions”

• This right exists even where the decision to decline treatment will result in death.

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Does the Liberty Interest Right to Refuse Extend to Incapacitated Persons?

• In general, yes. Matter of Quinlan, 70 N.J. 10 (1976)

• But, states have the right to limit how that right may be exercised. Cruzan v. Director, Mo. Dept. of Health, supra.

• Historically, New York has adopted a conservative approach to the right to refuse by requiring clear and convincing evidence of the patient’s wishes before life-sustaining treatment can be withheld or withdrawn.

• Matter of Storar, 52 N.Y.2d 363 (1980)• Eichner v. Dillon, 73 A.D.2d 431 (1980),

modified sub. nom. Matter of Storar, 52 N.Y.2d 363 (1980)

• Matter of Westchester County Medical Center (O’Connor), 72 N.Y.2d 517 (1988)

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• The clear and convincing evidence test can be met by oral testimony but the best evidence is a written document. Matter of Westchester County Medical Center (O ‘Connor), supra; Delia v., Westchester County Medical Center, 120 A.D.2d 1 (1987)

• Where the clear and convincing evidence test is not met health care providers have been required to use all available medical treatment and procedures

• Most other states have adopted a “substituted judgment” or “best interests” approach

• As a result of the “clear and convincing evidence” rule, in New York the “never competent” or the “formerly competent” person whose wishes could not be proved by clear and convincing evidence did not have the same constitutional right as other residents of the other states to refuse life-sustaining treatment

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Exceptions to the “Clear and Convincing” Rule

Over the years, New York carved out some limited exceptions to its clear and convincing evidence rule

The first step:

Do Not Resuscitate Orders (“DNR”) - Public Health Law Article 29B, effective August 7, 1987

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• When the patient is incapable of making the decision about resuscitation personally the decision is delegated, in this order, to:– The surrogate designated by the patient;– His or her guardian (although it is not required

that a guardian be appointed to make the DNR decision);

– The patient’s spouse;– The patient’s adult offspring;– A parent;– An adult sibling; and– A “close friend” defined as a person over 18 who

provides an affidavit to the attending physician, stating that he or she knows the patient well is familiar with his health care and religious beliefs.

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The Second Exception – The Health Care Proxy

Public Health Law Article 29CEffective January 18, 1991.

• Allows a person to designate a surrogate - the health care agent - by executing a health care proxy.

• A competent adult may appoint a health care agent. (Note the use of the word “competency” rather than “capacity” the more appropriate term used in Article 81 of the Mental Hygiene Law). Every adult is presumed competent “unless …adjudged incompetent or otherwise adjudged not competent to appoint a health care agent, or unless a committee or guardian of the person has been appointed….” (PHL Section 2981).

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The Health Care Proxy (cont.)

• The agent’s authority to act begins when the attending physician determines that the patient lacks capacity to make health care decisions. (PHL Section 2983). “For a decision to withdraw or withhold life-sustaining treatment, the attending physician who make the determination that a principal lacks capacity to make health care decisions must consult with another physician to confirm such determination” (PHL Section 2983).

• A health care provider shall comply with health care decisions made by an agent in good faith under a health care proxy to the same extent as if such decisions had been made by the principal, subject to any limitations in the health care proxy and pursuant to the provisions of subdivision five of Section 2983(5) . PHL §2984.

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The Health Care Proxy (cont.)

• The 1990 compromise with the opposing religious groups.

• A health care agent may not refuse or withdraw artificial nutrition and hydration unless the agent has knowledge of the patient’s wishes.

• Borenstein v. Simonson, 8 Misc.3d 481, 797 N.Y.S.2d 818 (Sup. Ct. Queens Co. 2005).

• Suggested language to add to the recommended form: “my agent is aware of my wishes, including my wishes regarding the furnishing of artificial nutrition and hydration”

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The “Living Will”

• Perhaps better called a “Health Care Declaration” - a document whereby a person expresses his or her wishes as to the kind of care and treatment he or she would want or refuse in the event of incapacity.

• At the present time New York does not have a living will statute, but living wills are recognized by case law. Matter of O‘Connor, supra.

• The Living Will will usually satisfy the “clear and convincing” evidence requirement

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Exception 3: Surrogate Decision Making for Mentally Retarded Persons and

Developmentally Disabled Persons In order to overcome the harsh rule of the Storar decision, Surrogate’s Court Procedure Act section 1750-b was enacted

• Effective March 17, 2003 and amended effective December 30, 2007.

• SCPA enacted by the legislature in 2002 (L 2002, Chapter 500, effective March 16, 2003) established a procedure for surrogate decision making by a guardian appointed pursuant to SCPA section 1750 for a mentally retarded person consistent with “what such person could make if such person had capacity.”

• “Such decisions may include decisions to withhold or withdraw life-sustaining treatment, as defined in subdivision(e) of section 81.29 of the mental hygiene law….” SCPA sec. 1750-b (1)

• “…When used in this article, life sustaining treatment means medical treatment which is sustaining life functions and without which, according to reasonable medical judgment, that patient will die within a relatively short period of time.” MHL 81.29(e)

• “The guardian shall base all advocacy and health care decision-making solely and exclusively on the best interests of the mentally retarded person and, when reasonably known or ascertainable with reasonable diligence, on the mentally retarded person’s wishes.” SCPA sec. 1750-b 2(a).

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• The mentally retarded person must be determined by the attending physician with the concurrence of another physician “to a reasonable degree of medical certainty” to:

– Have a terminal condition as defined in Public Health Law 2961 subdivision 23:

“ Terminal condition means an illness or injury from which there is no recovery, and which reasonably can be expected to cause death within one year”

– Be permanently unconscious– Have a medical condition, other than the mental

retardation, which requires life sustaining treatment, is irreversible and which will continue indefinitely and which treatment “would impose an extraordinary burden on such person”

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• A decision to withdraw or withhold artificially provided nutrition or hydration can be made only where

• there is no reasonable hope of maintaining life

• The artificially provided nutrition and hydration poses an extraordinary burden

• While the passage of SCPA 1750-b was a major a step forward, it provided limited relief because of its applicability to only persons with mental retardation and the limited situations in which it is applicable.

• The constitutionality of the section was upheld by Surrogate Peckham in Matter of Baby Boy W, 3 Misc.3d 656, 773 N.Y.S.2d 255 (Surr. Ct. Broome Co. 2004).

• The statute was held to be retroactive by the Court of Appeals in Matter of M.B., 6 N.Y.3d 437 (2006)

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Because the statute did not apply to persons with developmental disabilities (see also Matter of Darnell Anthony H, N.Y.L.J. March 18, 2005 p. 26, col. 1 (Surr. Ct. Bronx Co.) the legislature passed the 2007 amendments (L 2007, chapter 105) effective December 30, 2007, which make the following significant changes:

• End of life decisions can now be made by a guardian of a person with developmental disabilities as defined by section 1.03(22) of the Mental Hygiene Law.

• In cases where no guardian has been appointed, the term “guardian” includes a family member who has a “significant and ongoing involvement in a person’s life so as to have sufficient knowledge of their needs and, when reasonably known or ascertainable, the person’s wishes, including moral and religious beliefs.”

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The 2007 amendments significantly broadened the authority of a family member to make end of life decisions for the person with a developmental disability, even without the need to be appointed guardian by the court, provided the condition falls within the definition of Mental Hygiene Law section 103 (22), which includes a requirement that the disability must have “originated’ before the person attained 22 years of age.

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The Family Health Care Decisions Act “FHCDA” - Legislative History

The clamor for reform led the New York Task Force on Life and the law in 1992 to issue a report, “When Others Must Choose: Deciding for Patients Without Capacity,” called for a law that would allow for surrogate decision making by family members. Opposition was voiced by various groups that prevented passage until 2010.

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2010 – FHCDA Passes

On March 16, 2010, Governor Paterson signed Chapter 8 of the Laws of 2010 which was passed by the legislature after 17 years of debate.

FHCDA became effective June 1, 2010

The Governor said “After nearly twenty years of negotiations,New Yorkers now have the right to make health care decisions on behalf of family members who cannot direct their own care.”

Well, almost…

The Family Health Care Decisions Act adopts the concept of substituted judgment decision making - existing in all other states – to New York for patients who• lack capacity to give informed consent• did not leave clear and convincing instructions or evidence of

their wishes (for example: in a living will or a MOLST document)• or did not execute a health care proxy

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Key Purposes

The FHCDA establishes a system for decisions making in order to

• Provide consent to medical treatment

• Allow for decision making at the end of life for withholding or withdrawal of treatment

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Applicability of FHCDAThe law applies to decisions for adult patients who are in general hospitals or residential health care facilities (skilled nursing homes) and to hospice programs (2011 amendment)Note: the statute uses the term “hospital” to refer to both types of facilities

FHCDA does not apply to persons

• who have appointed a health care agent• who have a guardians appointed under SCPA 1750-b with

powers to make life-sustaining treatment or family members who have such powers under 1750-b

• for whom treatment decisions can be made pursuant to OMHor OPWDD (Office of Persons with Developmental Disabilities) regulations (PHL section 2994-b(3)(c))

OPWDD was formerly OMRDD

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Determination of Incapacity

The FHCDA establishes procedures for determining when a patient lacks capacity

• Presumption of capacity, unless there is a court determination of incapacity or an Art. 81 guardians “is authorized to decide about health care”• Initial determination by attending physician• Concurring determination when required: In a nursing home In a general hospital if the surrogate’s decision involves

withdrawal or withholding of life sustaining treatment•Special credentials are required for professionals who make the determination in the case of persons with mental retardation or mental illness•The patient and the named surrogate must receive notice of the determination•There are additional notification requirements for persons in mental hygiene facilities•If the patient objects to the finding of incapacity or the choice of the surrogate the objection prevails unless there is a court confirmation of incapacity or concludes there is some other basis for overriding the patient’s objection

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Who Can Make the Decision -The Surrogate

FHCDA sets forth a list of persons, in order of priority, who may act as the surrogate to make decisions for an incapacitated patient

• “A guardian authorized to decide about health care pursuant to article 81 of the mental hygiene law” PHL 2994-(d)

Note: although not clear, it appears that the guardian should be designated as the surrogate in the order of appointment (see section 25 of Chapter 8, laws of 2010, amending MHL section 81.22) (See slide 39)

• The spouse or domestic partner (as defined in FHCDA)

• An adult child

• A parent

• A brother or sister, or

• A close friend

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DOMESTIC PARTNER“Domestic Partner” means a person who, with respect to another person:

(a) is formally a party in a domestic partnership or similar relationship with the other person, entered into pursuant to the laws of the United States or of any state, local or foreign jurisdiction, or registered as the domestic partner of the other person with any registry maintained by the employer of either party or any state, municipality, or foreign jurisdiction; or

(b) is formally recognized as a beneficiary or covered person under the other person’s employment benefits or health insurance; or

(c) is dependent or mutually interdependent on the other person for support, as evidenced by the totality of the circumstances indicating a mutual intent to be domestic partners including but not limited to: common ownership or joint leasing of real or personal property; common householding, shared income or shared expenses; children in common; signs of intent to marry or become domestic partners under paragraph (a) or (b) of this subdivision; or the length of the personal relationship of the persons.

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The Extent of the Surrogate’s Authority

A surrogate may make all health care decisions for the patient that the patient could have made if he or she had capacity

Treatment decisions can be made without the consent of a surrogate if the patient had previously expressed a decision, orally or in writing, including with respect to a decision about life sustaining treatment (such a decision would need to have been made orally before two witnesses)

The surrogate’s decisions must be based on the patient’s wishes, including his or her religious or moral beliefs. If the patient’s wishes are not reasonably known and cannnot be ascertained with reasonable diligence the surrogate must decide in the patient’s best interests. PHL section 2994-d(4)

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INFORMED DECISION MAKING

Health care providers shall provide and the surrogate shall seek information necessary to make an informed decision, including information about the patient’s diagnosis, prognosis, the nature and consequences of proposed health care, and the benefits and risks of and alternative to proposed health care.

PHL, Article 29 CC, section 2994-d3(c)

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Decisions to Withhold or Withdraw Life-Sustaining Treatment

There are two provisions that authorize the surrogate to make decisions about life-sustaining treatment:

1. Life-sustaining treatment can be withheld or withdrawn if

– The treatment “would be an extraordinary burden to the patient” and

– The attending physician and another physician determine that

the patient is terminally ill, i.e., is suffering from an illness or injury that can be expected to cause death within six months whether or not treatment is provided or

is permanently unconscious

2. Life-sustaining treatment can be withheld or withdrawn if

“The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or excessively burdensome under the circumstances and the patient has an irreversible or incurable condition, as determined by an attending physician with the independent concurrence of another physician to a reasonable degree of medical certainty and in accordance with accepted medical standards”

PHL 2994-d (5)

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QUESTIONS

• Who decides if the treatment “would be” an extraordinary burden?

• Who decides if the treatment is “inhumane?”Consensus is that it is the surrogate. See the New York State Bar Association’s web site (www.nysba.org) : Family Health Care Decisions Act Information Center, FAQs, Question 4

Note that the statute states that “providing nutrition and hydration, without reliance on medical treatment, is not health care under this article and is not subject to this article”

Thus, provision of food and water to a patient who has the ability to be fed and can swallow can not be refused

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The FHCDA Is Flawed with Respect to End of Life Decisions

Does the statute solve the problem of New York’s restrictive history?

Some patients will not fall within the standards set forth for making end of life decisions

It appears that the clear and convincing evidence rule is still extant for such patients

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George’s Case

George is 79 years of age and suffers from advanced ALS (Lou Gehrig's disease). He can no longer move any muscles, can no longer speak or communicate via the computer technology he could formerly use to express his wishes and needs. He can no longer nod, blink or exert pressure on someone’s hand to signal his wishes or consent. He is being fed through a PEG tube which was inserted in his stomach in 2007. The physicians do not believe he is permanently unconscious nor can they state with certainty that he will die within 6 months.

He is a widower and now resides in a nursing home. George never signed a health care proxy or living will.

George’s daughter, Susan, has discussed with George’s treating physician whether she could, acting as the surrogate under the FHCDA, direct withdrawal of the PEG.

Will Susan prevail?

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Decisions for Minor Patients

FHCDA allows a parent or guardian of a minor to make end-of-life decisions for a minor child using the same standards set forth for adult patients

The statute did not need to address all health care decisions for minors since parents already had decision making rights in this respect

With respect to end of life decisions, the standards for adults apply

If the physician determines the minor has capacity the minor's consent to withholding or withdrawing treatment is required.

An emancipated minor does not need parent consent but the ethics committee must approve the decisions

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Adult Patients Without Surrogates

The new law wisely deals with the case of a patient with no family member or friend who can act as surrogate

• For routine medical treatment, the attending physician is authorized to make decisions for patient’s without a surrogate

• For major medical treatment, the attending physician must consult with other health care professionals and a second physician must concur with the attending’s decision

• Decisions with respect to life-sustaining treatment, however, require (1) a court decision in accordance with FHCDA decision making standards or (2) treatment can be withheld or withdrawn if the attending physician and a second physician determine the treatment provides no medical benefit and the treatment would violate accepted medical standards

The doctrine of the requirement of informed consent has been modified!

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Ethics Review Committees

Hospitals and nursing homes must establish an ethics review committee (ERC) with diverse membership.

The ERC is charged with dispute resolution and provide advisory opinions, except ERC approval is required 1. for decisions to withhold or withdraw life-sustaining treatment in nursing homes2. for decisions by an emancipated minor to forego life-sustaining treatment

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Moral or Religious Conscious Objections

FHCDA allows private hospitals and other providers to refuse to honor a decision made by a surrogate for moral or religious reasons, if:

• Notice is given to the patient of the facility's policy prior to admission

• The facility or physician transfers the patient to another facility or physician willing to honor the decision

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Other Provisions

• Good faith actions of surrogates, health care providers and ERC committee members are protected from civil and criminal liability

• Providers that refuse to honor a valid decision of a surrogate are not entitled to compensation for treatment provided, except

Where the refusal was based on a conscious or moral objection

Where the matter is being reviewed by the ERC Where there is a dispute between the surrogate and another

individual on the surrogate list Where the provider prevails in litigation concerning the

decisions

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DNR Issues

PHL Article 29-B has been effectively rescinded for most patients by bringing DNR decisions under the standards and procedures established for surrogates under the FHCDA.

PHL Article 29-B has been re-named Orders Not to Resuscitate for Residents of Mental Hygiene Facilities in order to preserve DNR rules for patients in mental hygiene facilities

Chapter 8 creates a new PHL Article 29-CCC to incorporate and continue the provisions regarding non-hospital DNR orders.

Article 29-CCC requires home health agency employees and hospice staff to honor non-hospital DNR orders

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Dispute between Surrogate and Physician:the “MEDICAL FUTILITY” Issue

Where the surrogate directs provision of life-sustaining treatment and a hospital or physician that does not wish to provide the treatment, Section 2994-f of the FHDA provides

“…if a surrogate directs the provision of life-sustaining treatment, the denial of which in reasonable medical judgment would be likely to result in the death of a patient, a hospital or individual health care provider that does not wish to provide such treatment shall nonetheless comply with the surrogate’s decision pending either transfer of the patient to a willing hospital or individual health care provider, or judicial review …”

The surrogate trumps the provider! Is this the New York standard in “medical futility” cases?

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“FUTILITY” and the Health Care Agent

Section 23 of Chapter 8 amends the health care proxy statute - PHL Article 29-C - in several respects, including adding a provision (section 5) that requires the hospital or physician to provide treatment requested by the health care agent even where the provider does not wish to provide the treatment pending a transfer or a court resolution of the dispute

The TEXAS ApproachThe Texas 1999 Advance Directives Act provides that after

notice to the family and an ethics committee process the hospital may seek to transfer the patient to another hospital but if that cannot be done treatment that the physician deems inappropriate may be unilaterally withdrawn

Ch. 166, Texas Health & Safety Code, Sec. 166.046

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Article 81 Guardianship Law Changes

Section 25 of Chapter 8 amends 81.22 (8), which lists the powers that can be granted to a personal needs guardian, to read as follows:

8 (i) for decisions in hospitals as defined by subdivision eighteen of section twenty-nine hundred ninety-four-a of the public health law, act as the patient’s surrogate pursuant to and subject to article twenty-nine-CC of the public health law, and

(ii) in all other circumstances, to consent to or refuse generally accepted routine or major medical or dental treatment, subject to the decision-making standard in subdivision four of section twenty-nine hundred ninety-four-d of the public health law

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Some Questions

Should all future orders appointing a guardian designate the personal needs guardian to be the “surrogate” under FHCDA?

Recommended language for the Order & Judgment:"The personal needs guardian appointed herein is hereby designated as the incapacitated person's surrogate for decisions in hospitals as defined by subdivision eighteen of section twenty-nine hundred-four-a of the public health law (said definition includes nursing homes), subject to article twenty-nine-CC of the public health law, and in all other circumstances, to consent to or refuse generally accepted routine or major medical or dental treatment, subject to the decision-making standard in subdivision four of section twenty-nine hundred ninety-four-d of the public health law"

What about guardians previously appointed? Will they be considered to be the “surrogate”?Note that new PHL 2994-a (definitions) section 11 states

“Guardian of a minor” or “guardian” means a health care guardian or a legal guardian of the person of a minor”

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Article 81 Section 81.29(e) Repealed

Section 26 of chapter 8 repeals this section which had provided

“Nothing in the article shall be construed either to prohibit a court from granting, or to authorize a court to grant, to any person the power to give consent for the withholding or withdrawal of life sustaining treatment, including artificial nutrition and hydration…”

FHCDA gives guardians the right to make end-of-life decisions subject to the standards set forth in the new law

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Recommended Resources

• “The Family Health Care Decisions Act: A Summary of key Provisions’ Robert Swidler, NYSBA Health Law Journal, Spring 2010, Vol. 15, No.1

• “New York’s Family Health Care decisions Act,” Robert Swidler, NYSBA Journal June 2010

• www.nysba.orgUnder “For the Community” click on“Family Health Care Decisions Act Resource Center”

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PALLIATIVE CARE INFORMATION ACT

Public Health Law section 2997-c effective February 9, 2011 requires the "attending health care practitioner" to offer patients with a terminal illness with information and counseling regarding palliative care and end-of-life options appropriate to the patient’s needs, including:

• Prognosis• Options appropriate to the patient;• Risks and benefits of various options;• Patient's "legal rights to comprehensive pain and

symptom management at the end of life."

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• The information and counseling may be given orally or in writing

• The attending health care practitioner may arrange for information and counseling under this section to be provided by another professionally qualified individual.

• If the attending health care practitioner is "not willing to comply with the law " he/she must "arrange for another physician or nurse practitioner to do so," or must "refer or transfer the patient to another physician or nurse practitioner."

• When the patient lacks medical decision-making capacity, information and counseling must be provided to the person who has authority to make health care decisions for the patient (the health care agent or surrogate).

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DEFINITIONS

• Appropriate means consistent with applicable legal, health and professional standards; the patient's clinical and other circumstances; and the patient's reasonably known wishes and beliefs.

• Attending health care practitioner means a physician or nurse practitioner who has primary responsibility for the care and treatment of the patient. Where more than one physician or nurse practitioner share that responsibility, each of them has responsibility under this section, unless they agree to assign that responsibility to one of them.

• Palliative care means health care treatment, including interdisciplinary end-of-life care, and consultation with patients and family members, to prevent or relieve pain and suffering and to enhance the patient's quality of life, including hospice care under article 40 of the Public Health Law.

• Terminal illness or condition means an illness or condition which can reasonably be expected to cause death within six months, whether or not treatment is provided.

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PALLIATIVE CARE ACCESS ACT (PCAA)

PCAA expands the requirements of PCIA

• Applies to health care facilities, home care agencies, enhanced assisted living facilities and special needs ALFs, as well as individual practitioners

• Applies to patients “with advanced life-limiting illnesses who may benefit from palliative care,” not just persons who are terminally ill

• Requires that information and counseling be offered and that the provider “facilitate access to appropriate palliative care consultation and services, including pain management consultations and services.”

Public health law section 2997-d, effective September 27, 2011

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46

Like the PCIA, the PCAA is intended to ensure that patients are fully informed of the options available to them when they are faced with a serious illness or condition, so that they are empowered to make choices consistent with their goals for care, and wishes and beliefs, and to optimize their quality of life. The law is not intended to limit the options available to patients. Nor is it intended to discourage conversations about palliative care with patients who have distressing symptoms and serious conditions, but do not technically fall within the law's requirements. Patients and providers should recognize that palliative care and disease-modifying therapies are not mutually exclusive. Patients may opt to pursue palliative care while also pursuing aggressive treatment. Palliative care may be provided together with life-prolonging or curative care or as the main focus of care.

47

Honoring Patient Choice

• Compliance with patient advance directives is an issue

• Matter of Zornow, 31 Misc. 3d 450, 919 N.Y.S.2d 273 (Sup. Ct. Monroe Co. 2012)

• Compliance with Advance Directives: Wrongful Living and Tort Incentives, Lynch, Fernandez and Sawicki, 8:8 Am. J. Bioethics 33 (2008)

48

BIOGRAPHY OF PETER J. STRAUSS

• Peter J. Strauss, Distinguished Adjunct Professor of Law at the New York Law School, where he teaches Elder Law and is co-director of the Guardianship Clinic, is also Senior Counsel of Epstein Becker & Green, P.C., a national law firm, based in its New York office. He has practiced trusts and estate law since 1961 and has special expertise in the legal problems of aging and persons with disabilities and is a frequent lecturer on those issues.

• Mr. Strauss is a prolific author and has written articles for various publications including the New York Law Journal and Bottom Line Personal and has addressed many national professional and consumer organizations. He is co-author of “Aging and the Law” a treatise for professionals published by Commerce Clearing House, Inc. and a consumer book, “The Complete Retirement Survival Guide: Everything You Need to Know To Safeguard Your Money, Your Health and Your Independence,” (Facts-on-File, Inc.) Professor Strauss has taught Elder Law at New York Law School he since 1990 and is co-director of the Elder Law Clinic which he founded in 2003. He is a founding member (1988) and a Fellow of the National Academy of Elder Law Attorneys. He serves on the Center for Medicaid and Medicare Services’ Transitions of Care workgroup – an outcome of the Leaders Roundtable on Caregiving (2008)

• Mr. Strauss has special interest in issues involving capacity for the execution of legal documents and the legal issues and rights of persons with respect to health care treatment at the end of life. He is a member of the board of Directors of the New York Chapter of Compassion & Choices. Mr. Strauss also handles guardianship matters and is known for his work concerning special needs trusts for persons with disabilities.

• Among the accolades Mr. Strauss has received are his designation from 2007 to 2011 as one of the New York Metropolitan area’s “Super Lawyers” and “Best Lawyers.” He has been named as the best Elder Law Attorney for 2012 by “Best Lawyers.” In 2009 he was honored by Selfhelp Community Services’ Evelyn Frank Legal Resources Program for his vigorous advocacy of older persons and people with disabilities in planning for incapacity, protecting rights in guardianship, and securing public insurance for long-term chronic care costs.

Advance Directives Act - Wikipedia, the free encyclopedia Page 1 of5

Advance Directives ActFrom Wikipedia, the free encyclopedia

The Texas Advance Directives Act (1999), also known as the Texas Futile Care Law, describes certain

provisions that are now Chapter 166 of the Texas Health & Safety Code. Controversy over these provisions

mainly centers on Section 166.046, Subsection (e),1 which allows a health care facility to discontinue life-sustaining treatment ten days after giving written notice if the continuation of life-sustaining treatment is

considered futile care by the treating medicalteam.

Although it is often stated that the act is offìcially named as the 'Futile CareLaw'or the 'Futile Care Act', that is

in fact incorrect and the statute has never legally had that title.

Contents

r I The statuter 2 Casesr 3 Support¡ 4 Criticismr 5 Repeal Effortsr 6 See alsor 7 Notesr 8 External links

The statute

For the hospital personnel to take advantage of legal immunity from prosecution for this the following process

must be followed:

¡ The family must be given written information concerning hospital policy on the ethics consultationprocess.

r The family must be given 48 hours'notice and be invited to participate in the ethics consultation process.

Family members may consult their own medical specialists and legal advisors if they wish.r The ethics consultation process must provide a written report to the family of the findings of the ethics

review process.¡ If the ethics consultation process fails to resolve the dispute, the hospital, working with the family, must

try to arrange transfer to another provider physician and institution who are willing to give the treatment

requested by the family and refused by the current treatment team.r If after l0 days, no such provider can be found, the hospital and physician may unilaterally withhold or

withdraw the therapy that has been determined to be futile.r The party who disagrees may appeal to the relevant state court and ask the judge to grant an extension of

time before treatment is withdrawn. This extension is to be granted only if the judge determines that

there is a reasonable likelihood of finding a willing provider of the disputed treatment if more time isgranted.

r If either the family does not seek an extension or the judge fails to grant one, futile treatment may be

unilaterally withdrawn by the treatment team with immunity from civil or criminal prosecution. 2

http://en.wikipedia.org/wiki/Advance Directives Act 1U2612012

Advance Directives Act - V/ikipedia, the free encyclopedia Page2 of 5

The bill was signed into law while George W. Bush was Governor of Texas. Prior to the passage of this law, no

protections or "grace period" existed.tll Critics have compared this law and its effects with Bush's response to

Terri Schiavo's situation, in particular his stated intent to sign the proposed Incapacitated Person's Legal

Protection Act. 3

Similar legislation, modeled on the Texas law, was proposed in Idaho ln2009,but was defeated.Í'itotion neededl

Cases

Sun Hudson: On March 15,2005, six-month-old infant Sun Hudson, who had a lethal congenital

malformation, was one of the first children to have care withdrawn under the Texas Futile Treatment Law.[2]

Doctors demonstrated in the ethics committee reviews that keeping the infant on a respirator would only delay

his inevitable death.

Tirhas Habtegiris: In December 2005, Tirhas Habtegiris, a young woman and legal immigrant from Africa,was removed from a respirator. Habtegiris died from complications of incurable and untreatable cancer that

had spread to her lungs.

Andrea Clark: In April 2006, relatives of 53-year old Andrea Clark were given the lO-day notice under this

¿s1.t3Jtal She had reportedly signed a statement she did not wish to die and was cognizant, although having

difficulties communicating while under heavy medication and after her brain was damaged by internal bleeding

and the effects of heart disease. After publicity from both right and left political groups, St. Luke's hospital in

Houston agreed to review the case again, eventually retracting the original decision this further review. Clark

ultimately died on May 8, 2006 after an infection.

EmÍlio Lee Gonzales: In March 2007, Children's Hospital of Austin gave the mother of 16 month old EmilioLee Gonzales the l0 day notice under this act, This child suffered from Leigh's disease, a uniformly fatal,

progressive illness which eventually destroys all nerve function and thereby prevents breathing, swallowing,

coughing, or any intentional or reflex movement. Joshua Carden, an attorney for the Gonzales family, reported

that the family had made a "unified decision" to keep the child alive through artifìcial means, which at the time

of the court dispute included constant use of a ventilator machine, pumping food and water into his body, and

frequent suctioning fluids out of his lungs, even though the family was aware that the child would not recover.tsl

On March 12,2007 the hospital ethics committee set a date of March 23 for removing Emilio from his

respirator. Lawyers representing Emilio's mother Catarina filed for a restraining order on March 20 to allow the

family more time to locate another facility willing to accept Emilio. Later that evening, the hospital agreed to

postpone removal of the respirator until April 10. On April4,lawyers for Ms. Gonzales challenged the

constitutionality of the ADA in Federal court, saying that it violated Emilio's 1st and l4th Amendment rights,t6l

However, on April 6, federal judge Sam Sparks declined to intervene and sent the matter back to state court.[7]

As of April 9, over 30 hospitals nationwide had refused to accept Emilio as a transfer patient.tsl On April 10,

Travis County Probate Judge Guy Herman issued an emergency restraining order to prevent the hospital from

removing Emilio from his respirator. A hearing was scheduled for April lg.tsl He died at the hospital from the

disease on Saturday, May 19,2007 at the age of l9 months. He spent a total of five months on a mechanical

respirator at the hospital before his death.

Other cases: Although there is much press about these cases, due to the lack of a reporting clause in the

current statute, there is lifile information on how often these cases occur. Dr. Robert Fine, director of the Officeof Clinical Ethics for the Baylor Health Care System says he collected five years'worth of information from11 large hospitals in Texas and two years' worth of data from fìve other large hospitals in the state. According

http://en.wikipedia.org/wiki/Advance Directives Act 11t26120t2

Advance Directives Act - V/ikipedia, the free encyclopedia Page 3 of5

to Fine's data,the hospitals surveyed held2,922 ethics committee consultations,9T4 of which concerned

medical futility cases. From those 974 consultations, the hospitals issued 65 letters stating agreement with the

attending physicians that treatment should be withdrawn, Fine says. But he says the hospitals actually withdrew

treatment in only 27 of thecases, while22patients died receiving treatment as they awaited transfers. a

Support

Before the Act, a hospital could obtain a court injunction to withdraw treatment \¡/ithout giving the family any

time to arrange a transfer.

Unlike many previous policies, the Act does not take money into an account. A poor person has the same rights

under the Act as a wealthy person.

Bioethicst and practicing MD Beverly B. Nuckols has argued: "There are no futile patients... there is only futilemedicine and technology. If my patient suffers organ failure after organ failure, some medicines and

technology can become harmful -- sometimes by causing side effects and more organ failure, often by

prolonging the patient's dying. "tsl

Criticism

The major criticisms of the Act involve the period of time allowed to transfer, and the ability of the ethics

committee to make the final decision on whether continued care is considered futile.

The current Act only provides a 1O-day period for the patient's family either to find another facility to accept

the patient or to obtain a court injunction to extend the time period. If no other facility will accept the patient

within the period of time and the family is unable to obtain a couft injunction, then the hospital is legally

permitted to withdraw life sustaining-treatment from the patient, and to allow the disease process(es) to bring

about patient's death. Very few facilities are willing to dedicate their life-saving resources to prolonging the lifeof a dying patient, even when accepting the patient would be highly profitable for them, and consequently very

few families have been able to find a willing facility to accept transfer within ten days.

Furthermore, the ethics committee is essentially the final decision maker in determining whether a patient's

care will continue or be terminated, The committee can decide to cease care even when l) the patient has the

financial ability (via insurance or other means) to continue to pay for care and/or 2) the patient has executed a

living will or other written advance directive stating a desire to continue treatment.

Repeal Efforts

State Senator Bob Deuell (R-Greenville), who is also a practicing family physician, introduced Senate Bill 439.tr0l SB 439 is also known as the "Patient and Family Treatment Choice Rights Act of 2007" and would amend

the applicable provisions of the Advance Directives Act to "ensure that, when an attending physician is

unwilling to respect a patient's advance directive or a patient's or family's decision to choose the treatment

necessary to prevent the patient's death, life-sustaining medical treatment will be provided until the patient can

be transferred to a health care provider willing to honor the directive or treatment decision." SB 439 was

referred to the Senate Health and Human Services Committee on February 21,2007 . A hearing is scheduled forApril12,2007.

State Representative Bryan Hughes (R-Mineola) introduced an identicalbill, HB 1094 with 59 co-sponsors. Itwas referred to the House Public Health Committee on February 22,2007.

htþ ://en.wikipedia.org/wiki/Advance Directives Act rU2612012

Advance Directives Act - V/ikipedia, the free encyclopedia Page 4 of 5

Media coverage of the Emilio Gonzales case has brought debate over SB 439 andHB 1094 to the forefront.[ll]

The attempt to change this law did not make it through the 2007 legislative session. It died in the House after

the Senate had passed a version of it. Supporters have stated they intend to work toward acceptance of changes

in the next session.

See also

r Spiro Nikolouzosr Terri Schiavor Right to Lifer Right to dier Culture of life/culture of deathr Futile medical carer Euthanasiar Health care reform debate in the United States

r Jacob M. Appel

Notes

r ^1 Chapter 166 of the Texas Health & Safety Code

(http ://codes. lp.fi ndlaw.com/txstatuteslHSl2lHl | 66lB I | 66.046)r ^2 Robert L. Fine, M.D.'s detailings of futile care statutes and processes from Baylor Health System

(http://www.baylorhealth.edu/proceed ings/ 1 3-2l I 3-2-frne.htm l)r ^3 White House Press Briefing 2005-03 -21 (http:llgeorgewbush-

whitehouse.arch ives. gov/news/releases/200 5/0 3 I 200 5 0321-2.html)

r ^4 As discussed in the 312107 issue of "Texas Lawyer" (http://www.law.com/jsp/tlPubArticleTXjsp?id:l172829796788)

1.)J.

4.

5.

6.

7.8.9.

0.1.

I1

http ://www.texasri ghttol i fe. com/li fels sues-euthanasia-bush. php

http://lawprofessors.typepad.com/trealthlawprolblo gl2005l03llifesupport-sto.htmlhttp ://blogs. chron.com/texassparkl e/200 6 I 0 4 I what v alue i s I i fe'htmlhttp://www.nationalrev iew.com/smithw/smith20060427 1 406.aspo b I-ttp/ lwww.dallasnews.com/sharedcontenlAPStories/stories/D8OD95K80,htmlhttp ://www.courthousenews,com/Life%o20S uppofi 'pdfhttp://www.lifeissues.net/news,php?newslD:000 I 83 3 7&topic:http://edition.cnn.com/2007 lL AW 104 I 1 O/baby .care.ap/

http://www.lifeethics,org/www.lifeethi cs.orgl2007l02ltheres-still-no-futile-care-act-in.htmlhttp ://www.tafp, orgA.{ews/stori es/attachments/S 843 9. pdfhttp ://www. chron.com/disp/story,mpl/ap I lxl 464802 1 .hrml

External tinks

r 60 Minutes: The Cost of Dying(http://www.cbsnews.com/stories/20 09lllll9l60minutes/main571 l689.shtml)

r T.M. Pope, Medical Futility Statutes: No Safe Harbor to Unilaterally Refuse Life-Sustaining Treatment,

75 Tennessee Law Review l-81 (2007) (http://papers.ssrn.com/so13/papers.cfm?abstract-id:989662)

¡ Slate: Do the Poor Deserve Life Support? (http://www.paulwilczynski.com/2006/01/slate-do-poor-deserve-life-support.htm l)

http://en.wikipedia.org/wiki/Advance Directives Act 1U2612012

Advance Directives Act - Wikipedia, the free encyclopedia Page 5 of5

r Culture of Life: Pullthe plug on conscious patients - W's law(http://www.dailykos.com/storyonly 12005 / l2l I 4 I I 5 1930 I 63)

r President Bush and Texas Law (http://www.texasrighttolife.com/lifelssues_euthanasia_bush.php)¡ Woman's death highlights health insurance crisis

(http://www.wfaa.com/sharedcontent/dws/wfaa/latestnews/stories/wfaaO 51214_lj_african.bb0eT6d.html)r Life-Support Stopped for 6-Month-Old in Houston

(http://lawprofessors.typepad.com/healthlawprolblog/2005/03/lifesupport_sto.html)r Andrea Clark Will Live ! (http://www.texasrighttolife.com/andrea.php)r Disability Advocates: Texas "Futile Care" Law Should Be Euthanized

(http://www.notdeadyet.org/docs/TXfutilecarelawPR05 06.html)r Andrea Clark and Texas futile care

(http://www.raggededgemagazine.com/blogs/edgecentric/archives/2006l05landrea_clark_an.html)r TEXAS STATUTES HEALTH & SAFETY CODE, CHAPTER 166. ADVANCE DIRECTIVES

(http://www.capitol.state.tx.us/statutes/docs/HS/content/htm/hs.002.00.000166.00.htm), section 166,046

r Texas Patient Rights- A website opposing the Texas law (http://www.texaspatientrights.org)r Foreign Policy: The Truth About Death Panels: NPR (http://www.npr.orgltemplates/story/story.php?

storyld:1 12705969)

Retrieved from "http://en.wikipedi a.orglwlindex.php?title:Advance Directives Act&oldid:505597781"Categories: Texas law I Euthanasia in the United States J Death in Texas , 1999 in law | 1999 in Texas

r This page was last modified on 3 August 2012 at 16:14.r Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may

apply. See Terms of Use for details.Wikipedia@ is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization.

http://en.wikipedia.org/wiki/Advance Directives Act t1t2612012

Matter of Zornow, 31 Misc. 3d 450 - NY: Supreme Court, Monroe 2010 - Google Scholar Page I of 22

3l Misc.3d 450 (2010)

919 N.Y.S.2d 273

ln the Matter of GAROLE ZORNOW, Petitioner, Pursuant to Article 81 of the Mental Hygiene

Law for the Appointment of a Guardian of JOAN M. ZORNOW, an Alleged lncapacitated

Person.

1017263

Supreme Court, Monroe CountY.

Decided December 23, 2010.

45 1 *451 Robeft W. Dapelo, P.C., Patchogue (Joseph S. Gulino, Jr., of counsel), for petitioner'

Harter, Secrest & Emery, LLP, Rochester Jennifer N. Weidner of counsel), for Douglas Zornow. Mental Hygiene Legal

Service, Rochester (Kevin C. O'Connell of counsel), for Joan M. Zornow.

OPINION OF THE COURT

WLLIAM P, POLITO, J.

Background

452

On or about May 18, 2010 the petitioner, Carole Zornow, applied to the court to be appointed guardian for her mother,

Joan M. Zornow, under the Mental Hygiene Law, primarily to make end of life decisions. Her mother is 93 years old,

suffering from advanced Alzheimer's, and residing in a nursing home. There was a dispute between her and the other

six siblings, mainly involving previously enacted MOLSTs (medical orders on life-sustaining treatments). The primary

dispute was a blanket directive denying her mother food and water if it could not be administered orally (hereafter

referred to as añif cial feeding). Also, it was fuÍher directed that she be denied hospitalization for future medical

conditions. On the return date of July 13, 2010, after review of the submissions, and discussion with counsel, the court

approved by agreement the petitioner and her brother Douglas Zornow as temporary coguardians, and advised that

should the need arise in the interim in which an imminent decision needed to be made fortheir mother, upon which

they could not agree, immediate application could be made to the coutl for resolution. The court in the best interests of

the patient also temporarily revoked all of the MOLSTs, except the DNR, as it could not identify any statutory authority

or immediate basis for such directives. (Order dated Aug. 25,2010, Matter of Nimqn. 1,,5AD3d 978 [4th Dept 2005].)

The court also issued a separate letter order dated August 25,2010 identifying the issues to be resolved, and

requested prior submissions to determine the existence of any factual disputes returnable September 21 , 2010. fheattorney for Douglas Zornow failed to submit any statutory authority for the prior MOLSTs, and, although

acknowledging no health care proxy orwritten directives *452 were enacted by his mother, contended that his mother

verbally indicated to him and the other siblings that artificial feeding be denied her if she were unable to take food and

water orally. The petitioner denied such directions were given, stated that her mother had indicated the contrary by

affirmatively requesting artificial feeding, and further, while lucid, her mother had also repeated such direction to her

nurse, who recorded it in the nursing home health care records. The court then by letter dated November 3, 2010

scheduled a hearing date for November 23,2010 and identifìed specific issues to be addressed. The court invited

additional evidentiary submissions prior to the hearing date to which the parties complied. The petitioner's siblings then

elected not to participate in the hearing or to attend the same, although they did agree to the sole appointment of

Catholic Family Center, and would abide in that organization's future decision, but relied on their papers submitted

regarding the current dispute on artificial feeding. They opposed the appointment of their sister. At the hearing, the

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Matter of Zornow, 3 1 Misc. 3d 450 - NY: Supreme Court, Monroe 2010 - Google Scholar Page 2 of 22

court determined that even if the other siblings had testified as indicated in their affidavit regarding their mother's

wishes it was too vague, too general, not related to, and prior to any specific condition, and, therefore, did not comply

with the "clear and convincing" standards required by the Court of Appeals in MAtJç.f .eL.W.es,!Phç.çtçí.9gAnV.Med".Çt1,.

/O,Col¿pd_í2lY-æj1ZJ!€.ggD. ln addition, the court found that based on the affidavit of the petitioner and the

undisputed documented hospital or nursing home records of the mother, that her request underthose specific

conditions did show by clear and convincing evidence that she wished to receive artificial feeding. Accordingly, the

prior directives and MOLSTs, except for the DNR, were permanently revoked. The court made the necessary findings

under the Mental Hygiene Law regarding the need for appointment of a guardian for the incompetent person, and

appointed the petitioner and Catholic Family Center as coguardians. The court appointed the petitioner as she was the

person with whom her mother resided for the past several years during her early illness, had cared for her, had been

extremely solicitous of her mother's care and best interests, and had been gifted the house by her mother 16 years

earlier. Since the brother and other siblings refused appointment, but did agree to an appointment of Catholic Family

Center, that co-appointment was made to allow all the siblings to have an opportunity for a say in the future decisions,

and to protect their right to see their mother out of the presence of the petitioner. Also, any idiosyncrasies of the sister

4S3 as alleged could be balanced by Catholic Family Center, which would still give the '453 mother the benefit of all her

children at the nursing home, and the petitioner's more solicitous efforts. Fudher, the court determined that the

applicable principles to be applied to Mrs. Zornow's end of life decision were those of her Roman Catholic religious

belief. The court advised that it would review those principles to determine their application especially to the particular

area of dispute, viz., under what condition should artificial feeding continue and when should it terminate, and would

submit a written decision thereon, as well as the parameters of the coguardian's authority. No objection was made to

the process. (See Borensfein v Simonson, I Misc 3d 481 [Sup Ct, Queens County, Martin E. Ritholtz, J., 2005] [where

the fact-fìnding court used the same process on the identical issue underthe Mental Hygiene Law and a health cary

proxy on behalf of an Orthodox Jewish person, and arrived at a similar resolutionl; Mental Hygiene Law $ 81 ' 1 2 [b];

State Administrative Procedure Act S 306 [1].)

Decision

Mrs. Joan Zornow, a Roman Catholic, is obligated by her religious beliefs to continue to receive artificially

administered food and water under each of the three statutory conditions, absent the particular and specific restrictive

medical conditions hereafter stated. Therefore, any purported authorization and enactment of a general MOLST, or

any directive for Mrs. Zornow by her guardians as surrogate decision makers, which would deprive her of artificially

administered food and water, when the medical conditions allowed for such withdrawal by the patient's Catholic

religion and moral beliefs are not in existence, particularly, an imminent death, and an inability of the food and water

"to accomplish its proper finality, which is the hydration and nourishment of the patient" (Attachment 1, United States

Conference of Catholic Bishops, Commentary on Nutrition and Hydration), would be a violation of the statutory law,

and invalid.

Further, blanket directives are not readily amenable to Catholic end of life determinations as they are for intentional

terminations of life based on a "quality of life" ethic, which is morally prohibited to Catholics. Therefore, MOLSTS and

blanket directives should not be used on behalf of Mrs. Zornow, as was improperly done here, unless particularized to

the specific principles applicable to the specific medical conditions actually encountered orto be encountered' The

454 latter method of specifìcity without a MOLST (except for DNR) will also allow consultation *454 opportunity with the

family, and their input, before choosing to receive or forgo further care or treatment, where allowable, when the actual

medical condition occurs.

The coguardians in making decisions shall consult with each other and the siblings. lf the decision is one which

requires a determination of forgoing end of life care ortreatment, they shall also consultwith and obtain the advice of a

priest or someone well trained in Catholic moral theology, as is recommended for Catholics in A Catholic Guide to End

-of-Life Decisions by the National Catholic Bioethics Centet.

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Matter of Zornow, 3l Misc. 3d 450 - NY: Supreme Court, Monroe 2010 - Google Scholar Page3 of 22

lssue Raised

The main dispute between the siblings is whether their mother should be deprived of food and water which requires

artifìcial administration. The statute provides that where the patient can take or be administered food and water orally it

is considered ordinary care, and is explicitly excluded from the statute's application (Public Health Law S 2994-d [5]

ld]). That statute further provides that where, as here, an incompetent person, prior to incompetency, has not

appointed a health care proxy, and has not consented to denial or withdrawal of artifìcially administered food and

water, it may be still withdrawn if one of three conditions or standards exist, even though not requested. (Public Health

Law g 2994-d tSl tal.) Further, even if any of the three conditions exist, the statute also requires and directs that the

religious and moral beliefs of the patient be determined and, if inconsistent therewith, take precedence, and must be

followed. (Public Health Law S 2994-d [4] tal til, tiil; tbl.)Although none of the three conditions presently exist, the

likelihood that one of the three conditions may occur, coupled with the siblings'continued dispute, and a lawwhich

allows the present issuance of blanket medical directives to cover future medical conditions, when and if they should

occur, requires the court to presently identify the incapacitated person's religious belief for end of life care applicable to

her present and future medical conditions where presently disputed, and to provide guidelines or parameters of

authority for the coguardians for determining other end of life decisions, which may occur in the future.

Applicable Law

The court and the coguardians appointed under the Mental Hygiene Law are obligated to decide the dispute in

455 accordance .455 with the standards of the statute, which became effective June 1, 2010. (Matter qt M.B-6 N.Y.. d 437

f2006ì.)

FHCDA Sh¡ft in Ethic and Burden

The Family Health Care Decisions Act (FHCDA) (Public Health Law art 29-CC) reflects a major departure in who and

under vyhaf standard life sustaining treatment may be terminated for a mentally incompetent person. The FHCDA

reflects a major change from the prior "presumption" of lite. (M,effef",çl'F4fie M,å.?,19"W¡S ?ClþJ'þ71,,.Þ99 ¡'lW?d-

Í95--æ1a199ZL ceft denied sub nom. Spahn v Wittman,522 US 951 [1997].) Previously, absent indication from the

principal to the contrary, a "presumption of life" applied. Here, absent such indication, a "presumption of termination"

applies, especially by deprivation of artificially administered food and water. (See Borensfern. 8 ![iseld¡149-3.)lronically, nowwhen a principal selects a person whom he or she trusts in a health care proxy to make decisions on

his or her behalf, the law of that proxy is that, absent an indication to the contrary, that person must provide food and

water (Borenstein a|494495, citing Public Health Law $ 2982 [2]), while someone designated by statute, in whom the

patient may have no trust whatsoever, can terminate his or her life earlier than his or her natural death by such

deprivation of food and water, despite the principal never having indicated a desire forsuch earliertermination. Under

the statute, the "quality of life ethic" has become the automatic main ethic while the "sanctity of life ethic" is given the

affirmative burden to "opt out." Further, the grant of immunity to those implementing the decision for ordinary tort

liability and accountability reinforces that shift in ethic.

Application of Roman Gatholic Religious Beliefs

Accordingly, the court will set forth the basis of its fìndings and analysis in resolving the disputed care, i.e., deprivation

of artificial feeding, including its difficulties in finding the authoritative Catholic position. Additionally, the court will

define its limits, which are also the same limitations applicable to the coguardians regarding theirdetermination of

other end of life issues which may arise.

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Matter of Zornow, 3 I Misc. 3d 450 - NY: Supreme Court, Monroe 2010 - Google Scholar Page 4 of 22

A Gatholic

Relevant to the proper application of the statute are the patient's religious beliefs. Mrs. Joan Zornow is a practicing

456 *456 Catholic. Her attorney advises that prior to her illness she was a daily communicant at mass. Her attorney also

asserts that food and water directives and other treatment be made in accordance with her Catholic religious beliefs'

Advanced Alzheimer's

Also relevant is Mrs. Zornow's medical condition. She is 93 years old. She has advanced Alzheimer's, which is a

continuing brain degeneration disorder. While the condition can result in death when the brain damage becomes so

advanced that it affects the brain's ability to control breathing, such Alzheimer's death is rare. The reason is that before

that level of brain degeneration occurs, the patient as a result of the progression of the condition experiences

difficulties of an inability to swallow, incontinence, and/or secondary infections of the lungs, or bladder, which then

cause death by pneumonia, or other deadly infection. (Emily Yoffe, How Does Alzheimer's Kill, Slate, Apr. 30, 2001

[with assistance of Dr. Peter J. Whitehouse of Case Western Reserve University School of Medicine, Dr. Harry

Rosenberg of the National Center for Health Statistics, and Danny Chun of the Alzheimer's Associationl; Alzheimeis

Association, 2010 Alzheimer's Disease Facts and Figures, at 18 [Mortality-Deaths from Alzheimer's Disease],)

Law and Rationale

First Condition of the Statute

lf the providing of food and water is considered an extraordinary burden (in the opinion of the surrogate) for a

permanently unconscious patient, even where death is not occurring, the statute allows the deprivation of food and

water by artificial means. This condition is often referred to as a coma. ln such case, if the cause of death is starvation

or dehydration and not the patient's underlying condition it constitutes euthanasia (Black's Law Dictionary 575 [7th ed

1 esel).

Gatholic Position

The Catholic Church does not define or consider artificial administration of food and water as extraordinary or even

medical "treatment," but is always defined as ordinary care. Further, it does not allow the termination of food and water

despite a vegetative state or an advanced Alzheimer's condition where the patient is not dying, or if dying, the death is

457 not so imminent, n457 such that the cause of death becomes the starvation or dehydration, rather than the imminent

underlying condition.

Application

The patient is currently not suffering from this medical condition as she is not unconscious. However, if she were to

become permanently unconscious, and not in the actual process of dying from the underlying condition, the

administration of food and water, which her religion believes is always to be considered comfort or basic care, even if

administered artificially, is obligatory.

Second Condition of the Statute

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lf the providing of food and water is considered an extraordinary burden (in the opinion of the surrogate) for a patient

with a life expectancy of less than six months (as opined by two doctors) and unable to take food and water orally, the

patient may be deprived of food and water.

Gatholic Position

The Catholic Church, in addition to considering artificial administration of food and water as never extraordinary or

even medical "treatment," as aforesaid, also does not allow the termination based upon a six-month "quality of life,"

where, again, the cause of death is by starvation ordehydration, ratherthan the imminent underlying condition.

Application

The second condition is also not applicable because the patient here is not dying, nor is her life expectancy less than

six months. Even if the six-month diagnosis is given, food and water may not be withheld until death is "imminent," and

the limited exceptions occur.

Third Gondition of the Statute

lf the providing of food and water would cause inhumane pain, suffering, or other burden, under circumstances in

which itwould be considered extraordinarily burdensome to a patientwho (in the opinion of the surrogate) has an

irreversible condition, the patient may be deprived of food and water.

Gatholic Position

The existence of an irreversible condition is not in itself a valid or particularly helpful criterion for the Catholic Church,

458 *458 unless death is imminent coupled with a futility to administer food and water either due to emerging complications

of the inability of the person's system to assimilate the food and water, or"in some rare cases [where] artifìcial

nourishment and hydration may be excessively burdensome for the patient or may cause significant discomfort, for

example resulting from complications in the use of the means employed." (See attachment 1 , Commentary on Nutrition

and Hydration, approved by the Cardinal and Bishop members of the Congregation forthe Doctrine of the Faith

released on September 15,2007.) However, here, since pain can be medically regulated, and the patient's body can

assimilate the food and water, despite the existence of an irreversible condition from which the patient is not

imminently dying, ordinary comfort care, including artificially administered food and water, is obligatory if she were to

become unable to swallow due to the often occurring symptoms of Alzheimer's. The significant distinctions from the

statute's allowances are the lack of the imminence of death from the underlying condition coupled with the lack of one

of the aforesaid extremely rare situations, for which the Catholic Church allows the removal of the comfort care of food

and water.

Application

While the patient here is suffering an irreversible condition, she is able to take food orally and, therefore the statute is

not applicable to her present condition. However, if the administration of food and water cannot be administered orally

dueto an often expected progression of Alzheimer's in causing swallowing difficulties, the artificial administration of

food and water would not in a medical sense ordinarily cause inhumane pain, be unable to be assimilated, or be

extraordinarily burdensome to administer, and in the absence of the onset of imminent death, the providing of food and

water is always considered ordinary care and obligatory for Catholics.

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The Gatholic Position on Forgoing Food and Water

On August 1,2007, the Catholic Church resolved for its members, including its Bishops and clergy, the moral debate

among its theologians, including dissident theologians, and various organizations as to whether the natural or artificial

administration of food and water to a person in a persistent vegetative state was extraordinary or disproportionate

45S treatment and not morally obligatory, or whether it was an ordinary *459 or proportionate means of preserving life and

morally required (see William E. May [Professor of Moral Theology, The Catholic University of America], Caring for

Persons in the "Persistent Vegetative Sfafe" and John Paul ll's March 20 2004 Address "On Life-Sustaining

Treatments and the Vegetative Sfafe", chapter 3 in Artificial Nutrition and Hydration [Christopher Tollefsen ed], volume

5 of Catholic Studies in Bioethics in the series Philosophy and Medicine [Dordrecht/Boston/London: KluwerAcademic

Publishers 20081).

The Catholic Church through the Universal Magisterium clearly resolved the issue in favor of the latter. The decision

was in accordance with and mirrored Pope John Paul ll's moral theology as advanced prior thereto in his March 20,

2004 Address in the exercise of his ordinary authority to a world congress of the most advanced medical, scientific,

and theological persons in light of the most current medicine and science addressed to this area of expertise (Address

of Pope John Paul ll to the Participants in the lnternational Congress on "Life-Sustaining Treatments and Vegetative

State: Scientific Advances and Ethical Dilemmas"). The Church's Magisterium resolved the issue as follows:

.,CONGREGATION FOR THE DOCTRINE OF THE FAITH RESPONSES TO CERTAIN QUESTIONS

OF THE UNITED STATES CONFERENCE OF CATHOLIC BISHOPS CONCERNING ARTIFICIAL

NUTRITION AND HYDRATION

"First question: ls the administration of food and water (whether by natural or artificial means) to a

patient in a vegetative state morally obligatory except when they cannot be assimilated by the patient's

body or cannot be administered to the patient without causing significant physical discomfort?

"Response: Yes. The administration of food and watereven by artificial means is, in principle, an

ordinary and proporlionate means of preserving life. lt is therefore obligatory to the extent to which, and

for as long as, it is shown to accomplish its proper finality, which is the hydration and nourishment of

the patient. ln this way suffering and death by starvation and dehydration are prevented.

460

"Second question: When nutrition and hydration are being supplied by artifìcial means to a patient in a'permanent vegetative state', may they be discontinued *460 when competent physicians judge with

moral certainty that the patient will never recover consciousness?

"Response: No. A patient in a 'permanent vegetative state' is a person with fundamental human dignity

and must, therefore, receive ordinary and proport¡onate care which includes, in principle, the

administration of water and food even by artificial means.

"The Supreme Pontiff Benedict XVl, at the Audience granted to the undersigned Cardinal Prefect of the

Congregation for the Doctrine of the Faith, approved these Responses, adopted in the Ordinary

Session of the Congregation, and ordered their publication.

"Rome, from the Offices of the Congregation forthe Doctrine of the Faith, August 1,2007.

"William Cardinal Levada

" Prefect

"Angelo Amata, S.D.B.

"Titular Archbishop of Sila

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"Secretary

Artificially Administered Food and Water Must Ordinarily Always be

Given

Artificially administered food and water is always a natural means of preserving life and not a medical act. For

Catholics in a persistent vegetative state or a coma it is obligatory in almost all situations. The Congregation's

declaration for the most extreme condition of persistent vegetative state or coma for patients whose condition itself

does not place them in imminent danger of death, and with food and water will live for many years, is applicable to

others in similar nonterminal conditions, including advanced Alzheimer's. A commentary was also issued at the same

time as the declaration on nutrition and hydration approved by the Cardinal and Bishop members of the Congregation

clarifying the directive:

461

"Patients in a 'vegetative state' breathe spontaneously, digest food naturally, carry on other metabolic

functions, and are in a stable situation. But they are not able to feed themselves. lf they are not

provided artificially with food and liquids, they will die, and the cause of their death wlll be neither an

illness nor the 'vegetative state' itself, but solely starvation *461 and dehydration ...

"What may become a notable burden is when the 'vegetative state' of a family member is prolonged

over time. lt is a burden like that of caring for a quadriplegic, someone with serious mental illness, with

advanced Alzheimer's dlsease, and so on ...

"'lt [artifìcially administered food and water] is therefore obligatory, to the extent to which, and for as

long as, it is shown to accomplish its proper finality, which is the hydration and nourishment of the

patient'. lt is made clear, secondly, that this ordinary means of sustaining life is to be provided also to

those in a 'permanent vegetative state', since these are persons with their fundamental human

dignity." (Attachment 1, United States Conference of Catholic Bishops, Commentary on Nutrition and

Hydration, quoting Congregation forthe Doctrine of the Faith Responses, supra [emphasis added].)

"[T]he artificial administration of water and food generally does not impose a heavy burden either on the

patient or on his or her relatives. lt does not involve excessive expense; it is within the capacity of an

average health-care system, does not of itself require hospitalization, and is proportionate to

accomplishing its purpose, which is to keep the patient from dying of starvation and dehydration. lt is

not, nor is it meant to be, a treatment that cures the patient, but is rather ordinary care aimed at the

preservation of life. (/d.)

462

"(l)n the ordinary circumstances of life in our society today, it is not morally right, nor ought it to be

legally permissible, to withhold or withdraw nutrition and hydration provided by artificial means to the

permanently unconscious or other categories of seriously debilitated but nonterminal persons. Rather,

food and fluids are universally needed for the preservation of life, and can generally be provided without

the burdens and expense of more aggressive means of supporting life." (William E. May and Msgr.

William Smith et al., Feeding and Hydrating the Permanently Unconscious and Other Vulnerable

Persons, 3 lssues L & Med 2o3,211 [winter 1987]; a/so see Caring for Persons in the "Persistent

Vegetative State" and Pope John Paul ll's March 2004 Address, at 69 [the declaration -462 applies to

others in similar condition, "e.9. those suffering from advanced dementia, severe stroke, advanced

metastases, quadruple amputees, etc."l.)

Exceptional Cases Allowing Catholics to Forgo Food and Water

"When stating that the administration of food and water is morally obligatory in principle,lhe

Congregation forthe Doctrine of the Faith does not exclude the possibility that, in very remote places or

in situations of extreme poverty, the artificial provision of food and water may be physically impossible,

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463

464

and then ad impossibitia nemo tenetur. However, the obligation to offer the minimal treatments that are

available remains in place, as well as that of obtaining, if possible, the means necessary for an

adequate support of life. Nor is the possibility excluded that, due to emerging complications, a patient

may be unable to assimilate food and liquids, so that their provision becomes altogether useless.

Finally, the possibility is not absolutely excluded that, in some rare cases, artificial nourishment and

hydration may be excessively burdensome for the patient or may cause significant physical discomfort,

for example resulting from complications in the use of the means employed.

"These exceptional cases, however, take nothing away from the general ethical criterion, according to

which the provision of water and food, even by artificial means, always represents a natural meansior

preserving life, and are not atherapeutictreatment. lts use should therefore be considered ordinary and

proportionate, even when the'vegetative state' is prolonged. (Commentary on Nutrition and Hydration,

Attachment 1.)

"His IPope John Paul ll's] teaching in no way requires that tubally assisted feeding or hydration be

maintained at all costs, but only when the benefits such asslsfance provides are present and no

excessiye burdens are imposed. lf in particular instances such feeding/hydration would not effectively

preserve life or alleviate suffering it would lack its beneficial effect and would be futile." (William E' May,

Caring for Persons in the "Persistent Vegetative State" and John Paul ll's March 20 2004 Address *463

"On Llfe-Susfa ining Treatments and the Vegetative Slafe'i )

When the food and water administered cannot accomplish its purpose of providing nourishment to the body, and

cannot be assimilated by the patient's body due to the underlying condition, it may morally be withdrawn or denied'

Also when the artificial administration of food and water is not alleviating suffering, that is, the providing of such care

itself is causing such suffering so as to constitute an excessive burden, it may be forgone. However, "the insertion of a

feeding tube, particularly through enteral and not perienteral means, is neither futile nor burdensome in almost all

cases." (/d,) Further, "adequate interventions exist to control pain in 90 to 99% of patients," (See Burke J. Balch, J.D.

and David Waters, Why We Shoutdn't Legalize Assislrng Suicide, Pa¡t tl: Pain Conlrol [with cited medical authorities].)

The cost of tubally assisted feeding is not a basis for denying food and water administered by artifcial means in the

United States. (See attachment 2, Q & A from the USCCB Committee on Doctrine and Committee on Pro-Life

Activities regarding The Holy See's Responses on Nutrition and Hydration for Patients in a "Vegetative State".)

"At present, the cost fortaking care of PVS patients is usually covered in great part by insurance or

other programs. But one cannot legitimately avoid excessive expense (if this does become an issue) by

abandoning care for the person and by intentionally bringing his death about by starvation. There are

morally legitimate ways to reduce the cost of care. Persons put into the situation of caring for a loved

one in the PVS state or other conditions are not obliged to have them cared for in highly expensive

hospitals or nursing homes (if insurance and governmental help are inadequate). They can remove

them from these costly institutions, take them home and do the best they can with the help of such

services as hospice care, volunteers from the parish or neighborhood, etc. The high standards of care

possible in expensive institutions might not be possible, but one can still maintain solidarity with the

person doing what one can, including providing food and nourishment by tubal means (not too difficult

to do once begun, even at home). One does not have to endure undue financial burden" (William E.

May, -464 Caring for Persons in the "Persistent Vegetative State" and John Paul ll's March 20 2004

Address "On Life-Susfa ining Treatments and the Vegetative SfaÚe')'

"But simply providing the permanently unconscious with food and water does not impose burdens on

families or other care-givers, just as the feeding of those paralyzed from the neck down or suffering loss

of all limbs does not impose excessive burdens on care-givers. The burden they carry is not caused by

the feeding but rather by the seriously debilitating condition of those for whom they care. But this is a

burden that must in justice be accepted by others. Would those opposing John Paul ll claim that we

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should stop feeding the demented, the paralyzed, quadruple amputees, and individuals who are simply

'not w1h it'? Withholding or withdrawing tubally provided food and water would not eliminate the burden

of care-givers; only the deafh of those cared for would end the burden." (ld. al 19-20; see a/so March

20,2OO4 Address of Pope John Paul ll part 6 [as to the obligation for others to give support to these

familiesl; Attachment 2, questions 7, 8.)

The Magisterium and Gatholic Authority

46s

The statement of the Congregation for the Doctrine of the Faith is the expression of the highest teaching authority of

the Catholic Church on matters of faith and morals, its Magisterium. All the Church's members are to adhere to its

pronouncement on matters of faith or morals, including Bishops. Cardinal Raymond Burke, formerly of St. Louis,

Missouri, is the head or Prefect of the Church's supreme court, called the "supreme Tribunal of the Apostolic

Signatura." He recently reminded Catholics and Bishops of the authority of the Magisterium and the source of its

authority:

"The Magisterium, in obedience to Christ and by the power of the particular grace of the Holy Spirit,

interprets the Word of God, contained in the Sacred Scriptures and Tradition, in matters of both faith

and morals. The Roman Pontiff and the Bishops in communion with him define the dogmas of the faith,

that is, the truths contained in the deposit of faith and 'truths having a necessary connection with

these"' (Obedie nce to The Magisterîum and the Responsibility of the Bishop Toward the Laity, quoting

"465 Magisterium of the Church, Catechism of the Catholic Church no. 88 [2d ed]).

"With regard to morals, the Magisterium presents faithfully the Decalogue and the requirements of the

life of the virtues. The teaching offìce would fail in its God-given mission, if it did not apply the living

Tradition to the circumstances of daily life in Christ. The Venerable Pope John Paul ll exhorted Bishops

to exercise the Magisterium regarding the moral life ...

"The response of both Bishop and the faithful to the exercise of the teaching authority of Christ is

obedience ...

"The obedience of faith obliges us in all situations of life, also in situations in which it is most difficult to

do what God asks of us. Ultimately, the obedience of faith could require martyrdom. ln his Encyclical

Letter Venlafis splendor, 'Regarding Certain Fundamental Questions of the Church's Moral Teaching'

ofAugust 6, 1993, our late and most beloved Holy Father Pope John Paul ll taught us that there can be

no compromise in the obedience to the moral teaching of the Magisterium:

"'Even in the most difficult situations man must respect the norm of morality so that he can be obedient

to God's holy commandments and consistent with his own dignity as a person. Certainly, maintaining a

harmony between freedom and truth occasionally demands uncommon sacrifices, and must be won at

a high price: lt can even involve martyrdom (n. 102a)'." (/d.; a/so see Catechism of the Catholic Church

nos. 85, 93, 1OO [requiring adherence], 2036 [Catholics required to observe natural law],2037 [duty to

observe the Catholic Constitute and decrees conveyed by the legitimate authority of the Churchl, 2052

[Church has right to announce moral principles, including those pertaining to the social order to the

extent that they are required by the fundamental rights of the human personl.)

Gonfusion of Authoritative Catholic Religious Beliefs

Underthis statute the finders of fact and surrogates, in ascertaining the Catholic's beliefs as applicable to a particular

medical condition, may encounter, and should be alerted to, various groups or persons improperly contesting the

466 authority .466 of the Magisterium, or the Catholic Church's offìcial position or its doctrines, and claiming a right to

declare principles in opposition to or inconsistent therewith:

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,'Often the lack of obedience to the Magisterium is not total but selective. Our culture teaches us to

believe what is convenient and to reject what is difficult for us or challenges us. Thus, we can easily fall

into'cafeteria Catholicism,' a practice of the faith, which picks and chooses what part of the deposit of

faith to believe and practice. A most tragic example of the lack of obedience of faith, also on the part of

certain Bishops, was the response of many to the Encyclical Letter Humanae vitae of Pope Paul Vl,

published on July 25, 1968. The confusion which resulted has led many Catholics into habits of sin in

what pertains to the procreation and education of human life." (Cardinal Burke, Obedlence to The

Magisterium and the Responsibitity of the Bishop Toward the Laity; see a/so William E. May et al.,

Charles E. Curran's Gross/y lnaccurate Attack on the Moral Theology of John Paul lllJune 14, 20051.)

It is noted that one of the children here, after consultation with a priest, believed that the blanket directive to prohibit

food and water from his mother when she became unable to take food orally regardless of her medical condition was

consistent with Catholic principles. (Transcript of Sept. 2,2010 colloquy.) lt is not clear whether he misunderstood,

misapplied, orwas misadvised. Nevertheless, it points outthe need forthe guardian/surrogate underthe statute for

vigilance to search out proper authority well trained in Catholic moral theology in determining their charge's religious

beliefs to be applied to the applicable medical situation. Also the failure of the "medical and social team" here to

consider, and not even mention, the patient's statement to her nurse that if she became unable to take food orally, she

wished to receive artificially administered food and water, may reflect the bias in parts of the medical community

against the previous presumption of life and in favor of the quality of life ethic noted by some writers. (See Burke J.

Balch citations herein.) One of the most prominent advocates locally of the MOLST and the quality of life ethic as

promoted in the living will is employed by a health care insurance provider, suggesting a conflict of interest in cost

motivation, and anotheris a known advocate. ln Vacco v. Qu//521 US 793 t19971), the Supreme Court ruled thatthe

4ç7 challenged New York *467 statute prohibiting physician-assisted suicide was valid, and physicians may not so cause,

hasten, or aid a patient's death. ln contrast to the standard living will, which is being widely promoted, the Catholic

Church has developed its own directives and a Catholic living will for Catholics and those whose religious beliefs are

consistent with the Church's view of the natural law application to end of life care and treatment.

Based on Natural Law

The Magisterium's determinations are based on the natural law: "'no one can arbitrarily choose whether to live or to

die; the absolute master of such a decision is the Creator alone' (n. a7)." (May, Caring for Persons in the 'Perslsfenf

Vegetative State" and John Paul lt's March 20 2OO4 Address "On Life-Susfaining Treatments and the Vegetative

Sfafe", quoting Evangelium vitaeby Pope John Paul ll.)

"As Pope John Paul ll reminded the Bishops, ... the Magisterium includes also the precepts of the

natural law written by God upon the human heart, the requirements of conduct inherent in man's very

nature and the order of the world, God's creation. Obedience to the demands of the natural law is

necessary for salvation, and, therefore, the teaching of the natural law is within the authority of the

Magisterium and part of its solemn responsibility.'ln recalling the prescriptions of the natural law, the

Magisterium of the Church exercises an essential part of its prophetic office of proclaiming to men who

they truly are and reminding them of what they should be before God' ([Catechism of the Catholic

Church no.l 2036)." (Cardinal Burke, Obedre nce to The Magìsterium and the Responsibility of the

Bishop Toward the LaitY.)

"'The rules that the Church sets forth reflect the divine Commandments, which find their crown and

synthesis in the Gospel command of love. The end to which every divine rule tends is the greater good

of human beings ... Nor must we forget that the Ten Commandments have a frm foundation in human

nature itself, and thus the values which they defend have universal validity. This is particularly true of

values such as human life, which must be defended from conception until its end in natural death; the

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freedom of individuals and of nations, socialjustice and the structures needed to achieve it.' (Paslores

gregis, n. 291." (ld.)

468 *468 "We must be wary of those who are too willing to end the lives of the elderly and the ill. lf we ever

decide that a poor quality of life justifies ending that life, we have taken a step down a slippery slope

that places all of us in danger. There is a difference between allowing nature to take its Òourse and

actively assisting death. The call for euthanasia sudaces in our society periodically, as it is doing now

under the guise of 'death with dignity' or assisted suicide. Euthanasia is a concept, it seems to me, that

is in direct conflict with a religious and ethical tradition in which the human race is presented with 'a

blessing and a curse, life and death,'and we are instructed'... therefore, to choose life.'lbelieve'euthanasia' lies outside the commonly held life-centered values of the West and cannot be allowed

without incurring great social and personal tragedy. This is not merely an intellectual conundrum. This

issue involves actual human beings at risk" (C. Everett Koop, M.D., Koop, The Memoirs of America's

Family Doctor [Random House, 1991]; see a/so Manhattan Declaration: A Call of Christian Conscience

[drafted Oct., 20, 2009]; Catechism of the Catholic Church, part 3, $ 1, ch 3 ["God's Salvation: Law and

Grace"l, art 1 ["The Natural Moral Law"] nos. 1954-1960; $ 2, ch 2, art 5 ["The Fifth Commandment"],

"lntentional homicide" at nos. 2268-2269, "Euthanasia" at nos. 2276-2279, "Suicide" atnos.2280-2283i

"ln Brief' at nos. 231 8-2321, 2324-2325\.

Likewise, Pope John Paul ll, who lived to see firsthand the extension of the arrogant assumption of authority to

terminate "lives not worthy to be lived," for compassionate purposes in the German Republic extended to the eugenic

purpose of the "Master race" and "the final solution by the Nazi regime, warned in his March 20,2004 Address:

"Moreover, to admit that decisions regarding man's life can be based on the external acknowledgment

of its quality, is the same as acknowledging that increasing and decreasing levels of quality of life, and

therefore of human dignity, can be attributed from an external perspective to any subject, thus

introducing into social relations a discriminatory and eugenic principle'" (Part 5.)

46e .4ös Food and Water is Basic or Gomfort Care and Differs from "Medical

Treatment"

The Catholic Church considers food and water administered by artifìcial means to be basic health care mandated for

sick people, even those in a vegetative state, including advanced Alzheimers, and as aforesaid, food taken orally is so

recognized in the statute and excluded from the statute's reach. The obligation to provide basic health care according

to Catholic religious beliefs was stated by Pope John Paul ll in his March 20,2004 Address:

"The sick person in a vegetative state, awaiting recovery or a natural end, still has the right to basic

health care (nutrition, hydration, cleanliness, warmth, etc.), and to the prevention of complications

related to his confinement to bed. He also has the right to appropriate rehabilitative care and to be

monitored for clinical signs of eventual recovery.

"l should like parlicularly to underline how the administration of water and food, even when provided by

artificial means, always represents a natural means of preserving life, not a medicalacf. lts use,

furthermore, should be considered, in principle, ordinary and proporlionate, and as such morally

obligatory, insofar as and until it is seen to have attained its proper finality, which in the present case

consists in providing nourishment to the patient and alleviation of his suffering." (Part 4.)

Medical Treatment

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Providing food and water, even artificially, is distinguished from "treatment," such as resuscitation, respirator, dialysis'

antibiotics, painkillers, etc. Different principles and medical conditions apply in which Catholics may not morally forgo

ordinary care as opposed to "treatment." The distinction is that the underlying condition, rather than the treatment, is

causing the person to die, and the forgoing of the treatment is not the cause of death except for painkillers. (The

application of the ordinary and extraordinary definitions of medical treatment for Catholics, and where they may be

appropriately applied to avoid suicide for oneself or others, as well as the use of painkillers even though it results in

one's death, is governed by Declaration on Euthanasia promulgated by the Sacred Congregation for the Doctrine of

470 the Faith on May 5, 1980; painkillers are dealtwith in parts ll ["Euthanasia"] and lll ["The Meaning of Suffering '470'lor

Christians and the Use of Painkillers"l [signed by Franjo Cardinal Seper, as Prefect, and Jerome Hamer, O.P', Tit.

Archbishop of Lorium, as Secretaryl.)

Caring Not Killing

The most important distinction of the Catholic Church from the statute's standards for forgoing food and water is that

the Catholic Church and other like-minded churches and pro-life organizations refuse to decouple food and water from

the underlying condition. They believe that such decoupling constitutes a quality of life ethic, causing death by

starvation and not by the underlying condition, i.e., not in spite of the "treatment" but because of it' The Catholic

Church fears such decoupling from a condition of imminent death and death administering omission of food and water

will open this euthanasia door even wider for "Mercy Killing" and assisted suicide, despite statutory language and

protestations in the statute to the contrary (A/so see ÂzþlJer-qrE-d4ail.F*.?1.0-.wLg-æ3L9Ç8-.5-6-9. 583J-\WZd,atÆ.o

["We decline to go down this slippery slope (of euthanasia)"].)

Dangers

Quality of Life Ethic

471

Given the subjective nature of interpreting the statute's generally undefined terms of "extraordinarily burdensome," or

an "extraordinary burden," orthe difficulty in medically prognosticating a six-month life expectancy (which becomes

self-fulfilling), coupled with an "irreversible or incurable condition," or "permanent[ ] unconsciousn[ess]" from which the

patient is not imminently dying lends itself to the great danger and likelihood of a resulting further extended quality of

life ethic. Also, added to that subjective interpretation is the concept of "futile care" by which doctors and or institutions

may override the patient's clear direction for artificially administered food and water, and deny the same. That concern

was expressed by the National Catholic Partnership on Disability Board in its August 22,2008 Statement on "Futile

Care" (available at http:// rnruvw.ncpd.orgipolicy/church/ncpd/statements/futilecare) as follows:

"The use of the term'futile care'generally refers to the claim that'Physicians are not ethically obligated

to deliver care that, in their best professional -471 judgment, will not have a reasonable chance of

benefting their patients.' [footnote 5: 'AMA Opinion E-2.035 "Futile Care," available at

http://www.amaassn.org/amalpub/category/2830.htm1 (last visited Dec. 5, 2007). Though the term

"futile care" generally refers to medical treatment, it has also been used to justify the withdrawal of food

and hydration, whether or not artificially supplied, which official Catholic teaching considers, not a

medical act, but rather ordinary and proportionate care ...']. Unfortunately, there is no agreement within

the medical community as to when such interventions lack sufficient benefit to be judged futile. For

example, [s]ome physicians use "futile" narrowly, considering treatments to þe futile if they would be

physiologically ineffective orwould fail to postpone death,... Many [other] physicians embrace a

broader, more elastic understanding of the term.... [A] treatment might be seen as futile if it does not

offer what [these] physicians consider an acceptable quality of life.' [footnote 6: "'Will Your Advance

Directive Be Followed?", Robert Powell Center for Medical Ethics of the National Right to Life

Committee, 5 (May 20,2OO7) (quoting the New York State Task Force on Life and the Law, "When

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472

473

Others Must Choose: Deciding for Patients Without Capacity" (New York: n.p., 1992, pp. 196-97),

available at http:/iwww.nrlc.org/euthanasia/ AdvanceDirectives/ReportRevised200T.pdf (last visited

Nov. 5, 2007)'; see a/so footnote 68: 'See "Concerns about Decisions Related to \Mthholding/

Withdrawing Life-sustaining Treatment and Futility for Persons with Disabilities" (literature review

concluding that "futile care" may prove a greater threat to disabled people than the legalization of

assisted suicide), supra note 65 ("Furthermore, providers may share the negative attitudes pervasive in

society about the quality of disabled people's lives that in turn can influence their decisions whether to

withdraw life support. See generally, Werth, James L., Jr., 'Concerns about Decisions Related to

Withholdingm/ithdrawing Life-sustaining Treatment and Futility for Persons with Disabilities,' Journal of

Disability Policy Studies [16:1, June 22,2005]. Cf. Stith, Marah, 'The Semblance of Autonomy:

Treatment of Persons with Disabilities *472 under the Uniform Health-Decisions Act,' 22 lssues L. &

Med. 39, 60-61 [Summer, 2006]")'1."

ln Mrs. Zornow's case the "team" agreed to and enacted a MOLST directive, without authority, which was in violation

of her religious belief and her 2002 statement, in which she requested artificially administered nourishment. The

MOLST further declared: "no hospitalization unless pain or severe symptoms cannot be othenruise controlled," signed

September 15 and September 18,2009. The "team" directive also stated "no hospitalization," and numberS stated,

"No appropriate decision maker is available. (Go to sec,28: Medical Futility). Dated Sept 5, 2009." (Exhibit C attached

to Jennifer N. Weidner, Esq.'s affidavit sworn to on September 14' 2010.1

Blanket Directives Not Practical for Gatholics

This difference in definitions of words such as ordinary, extraordinary, burden, treatment versus care etc., as well as its

different defìnition in different medical conditions between the statute and Catholic doctrine does not lend itself to

blanket directives without creating serious difflculties, and should be avoided in lieu of detailed specification to the

exact condition to be addressed and the Catholic principles applicable to that particular situation. The second problem

is that when a medical situation arises or circumstances occur where the family may elect to forgo the treatment or

care, orto continue it, they are deprived of that opportunity because the medical directive MOLST directs the result

without any prior consultations built in.

"Make certain that your Advance Directive forbids any action that the Catholic faith considers to be

immoral, such as euthanasia or physician-assisted suicide....

"The usefulness of an Advance Directive, which gives specific instructions for care, is limited because

of its inflexibility. lf circumstances change signifìcantly between writing the Advance Directive and its

implementation, the instructions may þe of little value to those acting on a patient's behalf, or may even

hindertheirfreedom to make good decisions. There may also be a problem of interpreting the

document when it is not clearly written. An Advance Directive oftentimes does not allow for adequate

informed consent because one must make a decision about a future medical condition which cannot be

*473 known in advance. When drawing up an Advance Directive, therefore, one should focus on

general goals rather than on specific medical procedures." (National Catholic Bioethics Center, A

Catholic Guide to End-oÊLife Decisions [containing also a health care proxy for Catholics as well as an

advance medical directive consistent with Catholic religious and moral beliefs, revised 2005; note these

documents, although apparently consistentwith the 2007 declaration on nutrition and hydration, have

not been updatedl.)

Mercy Killing and Assisted Suicide Proponents

This progression of the statute's "quality of life" ethic is clearly being promoted openly into further mercy killing through

assisted suicide by organizations such as Compassion and Choices (C & C) and Compassion and Choices of New

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York (C & C of NY), stridently pro-euthanasia organizations, formerly known as the Hemlock Society. They have

already embarked on efforts to force Catholics and Catholic health care organizations under the statute's current

standards to participate in the quality of life practice by starvation under sedation in violation of and against Catholics

and others' most serious and grievous religious beliefs, and their rights of conscience and religious freedom. They are

developing a long-term national strategy. (C & C of NY, Consume rs of Catholic healthcare, be aware [spring 2010

newsletterl; C & C, How the opinion of one pope became the rule for all Americans [Jan. 2010]; see a/so C & C,

Cathotic Ethical and Religious Directives lSept. 2010] [suggesting Directives language to counter Catholic beliefs]; C &

C, Cathotic Bishops Enact Plan for 300,000 Terri Schiavos and Council of Catholic Bishops Veto Millions of Advance

Di rective s INov. 2009]. )

lnterestingly, the second condition of the FHCDA allowing termination of food and water to kill patients with a six-

month life expectancy has already been extended, with the applause of the Compassion and Choice groups, including

C & C of NY, into lethal injections: "The (Washington) law allows terminally ill adults who have been told by their

doctors that they have six months or less to live to ask for a prescription for lethal medication." The group and its allied

organizations as a ployto furthertheirassisted suicide efforts rejectthe use of theword "suicide" or"physician

474 assisted suicide" when promoting it, and claim that the doctor-assisted suicides will bring into the r474 open the "back

alley" terminations of life, inferring that such termination of lives is secretly occurring in states where such conduct

violates their medical ethics and the law. (See C & C of NY, autumn 2008 and spring 2010 newsletters; C & C October

2010 newsletter.)

"Denial of food and fluids to people who cannot speak for themselves has been going on for fifteen

years in this country. lt is routine practice in hospitals and nursing homes across the country. And for

over a decade, the law on this, established by numerous court decisions and statutes, has been largely

settled. lf someone who is now incompetentto make health care decisions has not left clear

instructions in a legal document (variously called an 'advance directive,' 'durable power of attorney for

health care,' 'living will,' or the like), then a surrogate decision-maker can legally decide to cut off the

person's food and fluids....

"lt should come as no surprise that, with imporlant exceptions, the prevailing view in the judiciary, as in

the medical profession, is receptive to the quality of life ethic. Judges are often dismissive of our

position that all human beings possess dignity and the right to live, regardless of their age or degree of

disability. When the relative or other individual designated by state law to make health care decisions

for an incompetent person who has left no clear advance directive chooses to cut off food and fluids,

courts are rarely willing to agree with other relatives who seek to overturn that decision.

"lndeed, the current battleground is over efforts by health care personnel to cut off food, fluid and life-

saving treatments from patients they think have a poor quality of life AGAINST THE WISHES of the

patient and family. A large body of medical and ethical opinion holds that even when there is no doubt

that a patient wants to live, or when family members are united in saying the patient should get life-

saving treatment, doctors and hospitals should be able to say no." (Burke J. Balch, J.D. [Director of

Robert Powell Center for Medical Ethicsl, New York State Right to Life Will to Live Project,

Commentary: Case Points up Urgency of Will to Live')

475 .47s Catholic Decision Makers and Those lmplementing lt

The potential question earlier raised, but not reached, is if a Catholic or non-Catholic determines to forgo water and

food administered artificially in situations of legally allowed euthanasia under the statute or law, but morally disallowed

for Catholics, may any Catholic, especially Catholic surrogates and Catholic health care providers etc., make or

implement such decisions? The Sacred Congregation forthe Doctrine of the Faith's Declaration on Euthanasia

adopted May 5, 1980 states:

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476

"EUTHANASIA...

"lt is, thereforer necessary to state clearly in what sense the word [euthanasia] is used in the present

document [i.e. 1980 Declaration on Euthanasia]. By euthanasia is understood an action or an omission

which of itself or by intention causes death, in order that all suffering may in this way be eliminated.

Euthanasia's terms of reference, therefore, are to be found in the intention of the will and in the

methods used. lt is necessary to state firmly once more that nothing and no one can in any way permit

the killing of an innocent human being, whether an infant or an adult, an old person, or one suffering

from an incurable disease, or a person who is dying.... [N]o one is permitted to ask forthis act of killing,

either for himself or herself or for another person entrusted to his or her care, nor can he or she consent

to it, either explicitly or implicitly. Nor can any authority legitimately recommend or permit such an

action. For it is a question of the violation of the divine law, an offense againstthe dignity of the human

person, a crime against life, and an attack on humanity'"

Pope John Paul ll in his March 20,2OO4 Address (part 4) reaffirmed and emphasized that declaration:

"Death by starvation or dehydration is, in fact, the only possible outcome as a result of their [food and

waterl withdrawal. ln this sense it ends up becoming, if done knowingly and willingly, true and proper

euthanasia by omission.

"ln this regard, I recall what lwrote in the Encyclical Evangelium Vifae, making it clearthat'by

euthanasia in the true and proper sense must be understood an action or omission which by its very

nature and intention brings about death, with the purpose -476 of eliminating all pain'; such an act is

always'a serlous violation of the taw of God, since it is the deliberate and morally unacceptable killing

of a human person' (n. 65)."

Use of Authoritative Documents

The court has taken into account the authoritative laws and rules of the Catholic Church on faith and morals

promulgated and made public, including the Code of Canons of the Eastern Churches promulgated by Pope John ll in

1990; the Catechism of the Catholic Church (2d edition), which Latin version was promulgated by Pope John Paul ll on

August 25,1997',Apostolic Constitution Fidei Depositum part lV (Catechism of the Catholic Church nos. 84, 2037);

and Apostolic Letter Laetamur Magnopere. ln the latter document, the Catechism is identified as a sure and authentic

reference text, a genuine presentation of the faith, and a totally reliable way to present Catholic doctrine (at 4-6, no.

10). The Magisterium'steachings on faith and morals are declared and promulgated bythe Sacred Congregation for

the Doctrine of the Faith, to which the court also makes reference, including the 1980 Declaration on Euthanasia, the

August 2007 Responses to Certain Questions of the United States Conference of Catholic Bishops Concerning

Artificial Nutrition and Hydration, and its accompanying commentary approved bythe Cardinal and the Bishops of the

Congregation. Further, many of the documents quoted from or referenced herein often identify these authoritative

sources as the basis of their and the Catholic Church's positions'

Legislation Suggestion

The court would suggest legislative action by revising the FHCDA design to set forth the "sanctity of life" as the main

ethic, and allowing the limited "quality of life" ethic to be specifically limited to those who so personally indicate under

the level of proof required by the O'Connor case, and not beyond the threshold of the Edna M.F. case.

Justice Ritholtz in Borenstein (8 Misc 3.d at 501) warned: "We must never forget that, when the quality of life replaces

the sanctity of life, society has done itself irreparable harm." (Citation and internal quotation marks omitted.)

This court would add the words of John Donne:

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"But who can remove [his hearing] from that bell, which is passing a piece of himself [mankind] out of

this world?

477 *477 "No man is an island, entire of itself ... [A]ny man's death diminishes me, because I am involved in

mankind, and therefore never send to know for whom the bell tolls; it tolls for thee." (Meditation 17.)

Attachment I

United States Conference of Catholic Bishops, Pro-Life Activities, Commentary on Nutrition and

Hydration (approved by the Cardinal and Bishop members of the Congregation for the Doctrine of Faith

released on September 15,2007 [available at

http://www.nccbuscc.org/prolife/tdocsianhcommentary.shtmll ) ("Therefore, the Responses [to Certain

Questions Concerning Artificial Hydration and Nutrition (available at http://

www.usccb.org/prolife/tdocs/anhresponses.shtml)l now given by the Congregation for the Doctrine of

the Faith continue the direction of the documents of the Holy See cited above, and in particular the

Address of John Paul ll of March 20, 2004 [available at

http://www.vatican.va/holy_father/johnpaul-ii/speeches/ 2004lmarchldocuments/hfjp-

ii_spe_2004032O_cong ressfiamc_en. htmll").

"The Congregation for the Doctrine of the Faith has formulated responses to questions presented by

His Excellency the Most Reverend William S. Skylstad, President of the United States Conference of

Catholic Bishops, in a letterof July 11,2005, regarding the nutrition and hydration of patients in the

condition commonly called a 'vegetative state'. The object of the questions was whether the nutrition

and hydration of such patients, especially if provided by artificial means, would constitute an

excessively heavy burden forthe patients, fortheir relatives, orforthe health-care system, to the point

where it could be considered, also in the light of the moral teaching of the Church, a means that is

extraordinary or dispropotlionate and therefore not morally obligatory.

478

"The Address of Pope Pius Xll to a Congress on Anesthesiology, given on November 24, 1957, is often

invoked in favor of the possibility of abandoning the nutrition and hydration of such patients. ln this

address, the Pope restated two general ethical principles. On the one hand, natural reason and

Christian morality teach that, in the case of a grave illness, the patient and those caring for him or her*478 have the right and the duty to provide the care necessary to preserve health and life. On the other

hand, this duty in general includes only the use of those means which, considering all the

circumstances, are ordinary, that is to say, which do not impose an extraordinary burden on the patient

or on others. A more severe obligation would be too burdensome for the majority of persons and would

make it too diffìcult to attain more important goods. Life, health and all temporal activities are

subordinate to spiritual ends. Naturally, one is not forbidden to do more than is strictly obligatory to

preserve life and health, on condition that one does not neglect more important duties,

"One should note, first of all, that the answers given by Pius Xll referred to the use and interruption of

techniques of resuscitation. However, the case in question has nothing to do with such techniques.

Patients in a 'vegetative state' breathe spontaneously, digest food naturally, carry on other metabolic

functions, and are in a stable situation. Butthey are not able to feed themselves. [footnote 1:

'Terminology concerning the different phases and forms of the "vegetative state" continues to be

discussed, but this is not imporlant for the moraljudgment involved.'l lf they are not provided artificially

with food and liquids, they will die, and the cause of their death will be neither an illness nor the'vegetative state' itself, but solely starvation and dehydration. At the same time, the artificial

administration of water and food generally does not impose a heavy burden either on the patient or on

his or her relatives. lt does not involve excessive expense; it is within the capacity of an average

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479

healthcare system, does not of itself require hospitalization, and is proportionate to accomplishing its

purpose, which is to keep the patient from dying of starvation and dehydration. lt is not, nor is it meant

to be, a treatment that cures the patient, but is rather ordinary care aimed at the preservation of life.

"What may become a notable burden is when the 'vegetative state' of a family member is prolonged

over time. lt is a burden like that of caring for a quadriplegic, someone with serious mental illness, with

advanced Alzheimer's disease, and so on. Such persons need continuous assistance for months or*479 even for years. But the principle formulated by Pius Xll cannot, for obvious reasons, be interpreted

as meaning that in such cases those patients, whose ordinary care imposes a real burden on their

families, may licitly be left to take care of themselves and thus abandoned to die. This is not the sense

in which Pius Xll spoke of extraordinary means.

"Everything leads to the conclusion that the first paÉ of the principle enunciated by Pius Xll should be

applied to patients in a'vegetative state': in the case of a serious illness, there is the right and the duty

to provide the care necessary for preserving health and life. The development of the teaching of the

Church's Magisterium, which has closely followed the progress of medicine and the questions which

this has raised, fully confìrms this conclusion.

"fhe Declaration on Euthanasla, published by the Congregation forthe Doctrine of the Faith on May 5,

1980, explained the distinction between proportionate and disproportionate means, and between

therapeutic treatments and the normal care due to the sick person: 'When inevitable death is imminent

in spite of the means used, it is permitted in conscience to take the decision to refuse forms of

treatment that would only secure a precarious and burdensome prolongation of life, so long as the

normal care due to the sick person in similar cases is not interrupted' (Part lV). Still less can one

interrupt the ordinary means of care for patients who are not facing an imminent death, as is generally

the case of those in a'vegetative state'; forthese people, itwould be preciselythe interruption of the

ordinary means of care which would be the cause of their death.

"On June 27, 1981, the Pontifical Council Cor Unum published a document entitled Some Ethical

Quesflons Relating to the Gravely lll and the Dying, in which, among other things, it is stated that'There remains the strict obligation to administer at all costs those means which are called "minimal":

that is, those that normally and in usual conditions are aimed at maintaining life (nourishment, blood

transfusions, injections, etc.). The discontinuation of these minimal measures would mean in effect

willing the end of the patient's life' (no. 2.4.4.).

480 *480 "ln an Address to participants in an international course on forms of human preleukemia on

November 15, 1985, Pope John Paul ll, recallinglhe Declaration on Euthanasla, stated clearly that, in

virtue of the principle of proportionate care, one may not relinquish 'the commitment to valid treatment

for sustaining life nor assistance with the normal means of preserving life', which certainly includes the

administration of food and liquids. The Pope also noted that those omissions are not licit which are

aimed 'at shortening life in order to spare the patient or his family from suffering'.

"ln 1995 the Pontifical Council for Pastoral Assistance to Health Care Workers published the Chafter tor

Health Care Workers, paragraph 120 of which explicitly affìrms: 'The administration of food and liquids,

even artificially, is part of the normal treatment always due to the patient when this is not burdensome

for him or her; their undue interruption can have the meaning of real and true euthanasia'.

"The Address of John Paul ll to a group of Bishops from the United States of America on visit ad limina,

on October2, 1998, is quite explicit: nutrition and hydration are to be considered as normal care and

ordinary means for the preservation of life. lt is not acceptable to interrupt them or to withhold them, if

from that decision the death of the patientwill follow. This would be euthanasia by omission (cf. no.4).

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"ln his Address of March 20,2004, to the participants of an lnternational Congress on 'Life-sustaining

Treatments and the Vegetative State: scientific progress and ethical dilemmas', John Paul ll confirmed

in very clear terms what had been said in the documents cited above, clarifying also their correct

interpretation. The Pope stressed the following points:

481

482

"1. 'The term permanent vegetatìve slafe has been coined to indicate the condition of those patients

whose "vegetative state" continues for over a year. Actually, there is no different diagnosis that

corresponds to such a definition, but only a conventional prognostic judgment, relative to the fact that

the recovery of patients, statistically speaking, is *481 ever more diffìcult as the condition of vegetative

state is prolonged in time' (no. 2).

"2. ln response to those who doubt the 'human quality'of patients in a 'permanent vegetative state', it is

necessary to reaffirm that 'the intrinsic value and personal dignity of every human being do not change,

no matter what the concrete circumstances of his or her life. A man, even if seriously ill or disabled in

the exercise of his highest functions, is and always will be a man, and he will never become a

'vegetable' or an 'animal"' (no. 3).

"3. 'The sick person in a vegetative state, awaiting recovery or a natural end, still has the right to basic

health care (nutrition, hydration, cleanliness, warmth, etc.), and to the prevention of complications

related to his confinement to bed. He also has the right to appropriate rehabilitative care and to be

monitored for clinical signs of possible recovery, I should like particularly to underline how the

administration of water and food, even when provided by artificial meansr always represenls a natural

meanso'f preserving life, not a medical act, lts use, furthermore, should be considered, in principle,

ordinary and proportionate, and as such morally obligatory, to the extent to which, and for as long as, it

is shown to accomplish its proper fìnality, which in the present case consists in providing nourishment

to the patient and alleviation of his suffering' (no. 4).

"4. The preceding documents were taken up and interpreted in this way: 'The obligation to provide the

"normal care due to the sick in such cases" (Congregation forthe Doctrine of the Faith, Declaration on

Euthanasia, p. lV) includes, in fact, the use of nutrition and hydration (cf. Pontifical Council Cor Unum,

Some Ethical Questions RelatÌng to the Gravely lll and the Dying, no.2, 4, 4; Ponlifrcal Council for

Pastoral Assistance to Health Care Workers, Chatter for Health Care Workers, no. 120). The evaluation

of probabilities, founded on waning hopes for recovery when the vegetative state is prolonged beyond a

year, cannot ethically justify the cessation or interruption of minimal care for the patient, including

nutrition and hydration. Death by starvation or dehydration is, in fact, the only *482 possible outcome as

a result of theirwithdrawal. ln this sense it ends up becoming, if done knowingly and willingly, true and

proper euthanasia by omission' (n. 4).

"Therefore, the Responses now given by the Congregation for the Doctrine of the Faith continue the

direction of the documents of the Holy See cited above and in particular the Address of John Paul ll of

March 20, 2004. The basic points are two. lt is stated, first of all, that the provision of water and food,

even by artificial means, is in principle an ordinary and proportionate means of preserving life for

patients in a'vegetative state': 'lt is therefore obligatory, to the extent to which, and for as long as, it is

shown to accomplish its properfinality, which is the hydration and nourishment of the patient'. lt is

made clear, secondly, that this ordinary means of sustaining life is to be provided also to those in a'permanent vegetative state', since these are persons with their fundamental human dignity. "When

stating that the administration of food and water is morally obligatory in principle, the Congregation for

the Doctrine of the Faith does not exclude the possibility that, in very remote places or in situations of

extreme poverty, the artificial provision of food and water may be physically impossible, and then ad

impossibilia nemo tenetur. However, the obligation to offer the minimal treatments that are available

remains in place, as well as that of obtaining, if possible, the means necessary for an adequate support

of life. Nor is the possibility excluded that, due to emerging complications, a patient may be unable to

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assimilate food and liquids, so that their provision becomes altogether useless. Finally, the possibility is

not absolutely excluded that, in some rare cases, artificial nourishment and hydration may be

excessively burdensome for the patient or may cause signifìcant physical discomfort, for example

resulting from complications in the use of the means employed.

483

484

"These exceptional cases, however, take nothing away from the general ethical criterion, according to

which the provision of waterand food, even by artificial means, always represents anatural meansfor

preserving life, and are not a therapeutic treatment. "483 lts use should therefore be considered

ordinary and propotlionale, even when the 'vegetative state' is prolonged."

Attachment 2

Q & A from the USCCB Committee on Doctrine and Committee on Pro-Life Activities regarding The Holy See's

Responses on Nutrition and Hydration for Patients in a "Vegetative State" (issued September 2007) (available at

http://www. u sccb. org/comm/hyd rationq&a.d oc).

"ln July 2005, the United States Conference of Catholic Bishops submitted two questions for

clarification (in the form of a dubium) to the Congregation for the Doctrine of the Faith about the

meaning of the Address (available at

http://www.vatican.valholy-father/johnjaul-ii/speeches/2004lmarchldocuments/hfjp-

ii_spe_20040320_congress-fiamc_en.html) given on March 20, 20A4by Pope John Paul ll to a Rome

conference on patients diagnosed as being in a 'vegetative state;' [footnote 1: 'As noted in the Holy

Father's Address, the term "vegetative state" is commonly used in medical practice but may

unfortunately mislead some to think that patients in this state lack full human dignity; therefore it is cited

in this text only with quotation marks. The Holy Father also noted in2004 that there is confusion and

disagreement among medical experts about the definition of the "vegetative state" and its diagnosis,

and about the parameters for judging when to call such a state "persistent" or "permanent" (with the

formerterm more often used in the United States).'l The Congregation responded to these questions in

September 2007. The Responses (approved by Pope Benedict XVI) and a Commentary (approved by

the Cardinal and Bishop members of the Congregation) will be publicly released on September 15 in

L'Osservatore Romano. Following are questions and answers about these texts.

"1) What do the Responses say?

"They reaffirm two central teachings in Pope John Paul ll's Address of 2004:1) Patients who are in a

'vegetative state' are still living human beings with inherent dignity, deserving the same basic care as

otherpatients; and 2) nutrition and hydration, even *484 when provided with artificial assistance, is

generally part of that normal care owed to patients in this state, along with other basic necessities such

as the provision of warmth and cleanliness.

"2) Does this represent a change in Church teaching?

"No. These Responses reaffirm what was taught by Pope John Paul ll in his 2004 Address, which itself

is in continuity with the Holy See's Declaration on Euthanasia of 1980 and other documents regarding

the right of patients to receive normal or basic care. As the Commentary points out, in developing this

teaching, the Church's Magisterium has paid close attention to 'the progress of medicine and the

questions which this has raised.'

"3) The Church has long taught that one is not obliged to employ extraordinary or disproportionate

means to preserve one's life. Does this traditional form of reasoning not apply in the case of the person

in a persistent'vegetative state'?

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"This form of reasoning does apply. However, for modern societies with advanced medical services the

administration of nutrition and hydration by artificial means to patients in a 'vegetative state'who need

such assistance to survive is generally neither extraordinary nor disproportionate.

"To apply this reasoning correctly we must recognize that all human life, not only a particular kind of life

we mightconsider'normal'or'productive,'is precious and should be preserved. Those in a'vegetative

state' sufferfrom a very severe disability, but they do not lose their human dignity. ln this respect, as

Pope John Paul ll pointed out in his Address, even the term 'vegetative state' is unfortunate and

potentially misleading-a human being must never be dismissed as having the status of a 'vegetable.'

"4) Are there medical situations in which it is moral to withhold nutrition and hydration?

485

"Yes. For example, a patient in the last stages of stomach cancer is already dying from that condition.

Such a dying patient, or others who can speak for the patient, may decide to refuse further feeding

because it causes pain and gives little benefit. The .485 administration of nutrition and hydration in this

case would pose a burden on the stomach cancer patient that is disproportionate to its benefit. By

contrast, the 'vegetative state' is not in itself a case of imminent dying, and the reception of nutrition

and hydration itself does not generally constitute a burden for him or her.

"5) Are there possible cases when it would be moral to withhold or withdraw nutrition and hydration

from the patient in a 'vegetative state'?

"Yes. They could be withheld if the available means for administering nutrition and hydration were not

effective in providing the patient with nourishment (for example, because the patient can no longer

assimilate these), or if the means itself constituted a burden (for example, because the feeding tube is

for some reason causing persistent infections). The Commentary notes that such situations are rare. lt

also notes that the obligation to provide artificially assisted food and fluids may not bind in situations of

extreme poverty or in the absence of a modern health care system, because one is not held to do what

is impossible.

"6) May nutrition and hydration be withheld from patients in a persistent'vegetative state' because

prolonged care for them may involve signifìcant costs?

"No, because in technologically advanced societies the costs directly attributable to the administration

of nutrition and hydration are generally not excessive. To be sure, the costs and other burdens placed

on families by the patient's need for prolonged care may become very significant; However, this real

problem must not be resolved by removing basic care so the patient will die. While one may act to

reduce orremove a burden caused directly bythe administration of nutrition and hydration if the beneft

is not proportionate to the burden, we must not dismiss life itself as a burden even when its helpless

state may call on us for other forms of care. To act to end life because life itself is seen as a burden, or

imposes an obligation of care on others, would be euthanasia.

486 .486 "7) Who should bearthe burdens associated with providing proper care forthose in a persistent

'vegetative state'?

"Pope John Paul ll insisted that families'cannot be left alone with their heavy human, psychological

and financial burden.'He maintained that'society must allot sufficient resources forthe care of this sort

of frailty' and suggested a range of initiatives to provide assistance (see Address, no. 6). The Church

likewise has an obligation to offer what assistance she can, which might involve stepping in where the

support from society falls short, as well as providing the spiritual and pastoral aid that only she can

give. This is an opportunity for the Church to bear witness to her commitment to serve human life from

conception to natural death.

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"8) Could proper care for those in a persistent 'vegetative state' impose signiflcant fìnancial burdens on

Catholic health care facilities?

"Yes, in the case of families who have limited financial means and no or insufficient health insurance.

Catholic health care facilities recognize that at times they are obliged to bear the cost of providing

health care to those who cannot pay for it. ln the loving care that they provide to such persons, with the

assistance of the entire Catholic community, they can provide concrete examples of the Church's

commitment to human life.

"9) Are the Ethical and Religious Directives for Catholic Health Care Services in conformity with this

teaching?

"Directive 58 already speaks of 'a presumption in favor of providing nutrition and hydration to all

patients, including patients who require medically assisted nutrition and hydration.'The Address and

the Responses clarify how this presumption applies to the patient in a 'vegetative state' as to other

patients, and provide further guidance as to how the Directives should be interpreted and

implemented."

Note: as to question 9 aþove Directive 58 in the Ethical and Religious Directives for Catholic Health Care Services was

modifìed in the 2009 fifth edition from a "presumption" to an "obligation" to provide artificially administered food and

water as comfort care in accordance with lhe 2OO7 clarification by the Sacred Congregation for the Doctrine of the

Faith.

487 .4s7 Attachment 3

United States Conference of Catholic Bishops, Pro-Life Activities, Appendix, Technical Aspects of Medically Assisted

Nutrition and Hydration (approved by the Cardinal and Bishop members of the Congregation for the Doctrine of Faith

released on September 15,2007 (available at

http://www. nccbuscc. org/prolife/issues/euthanas/nutend.shtmlhttp://www. nccbuscc.org/prolife/tdocs/anhcommentary.sh

"Procedures for providing nourishment and fluids to patients who cannot swallow food orally are either

'parenteral' (bypassing the digestive tract) or'enteral' (using the digestive tract).

488

"Parenteral or intravenous feeding is generally considered 'more hazardous and more expensive'than

enteral feeding. [Footnote 42: 'David Major, M.D., "The Medical Procedures for Providing Food and

Water: lndications and Effects," in Lynn (ed.),8y No Extraordinary Means (lndiana University Press

1986) (hereinafter "Major"), page 27.'l lt can be subdivided into peripheral intravenous feeding (using a

needle inserted into a peripheral vein) and central intravenous feeding, also known as total parenteral

feeding or hyperalimentation (using a larger needle inserted into a central vein nearthe heart).

Peripheral intravenous lines can provide fluids and electrolytes as well as some nutrients; they can

maintain fluid balance and prevent dehydration, but cannot provide adequate nutrition in the long term.

[Footnote 43: 'Peripheral veins (e.9., those found in the arm or leg) will eventually collapse after a

period of intravenous feeding, and will collapse much faster if complex nutrients such as proteins are

included in the formula. See U.S. Congress, Office of Technology Assessment, Life-Susfatntng

Technologies and the Etderty, 0TA-8A-306 (Washington, D.C.: U.S. Government Printing Office, July

1987) hereinafter "OTA"), pages 283-4,'l Total parenteral feeding can provide a more adequate

nutritional balance, but poses significant risks to the patient and may involve costs an order of

magnitude higherthan othermethods of tube feeding. lt is no longerconsidered experimental, and has

become 'a mainstay for helping critically ill patients to survive acute illnesses where the prognosis had

previously been nearly hopeless,' but its feasibility *4BB for life-long maintenance of patients without a

functioning gastrointestinal tract has been questioned. [Footnote 44: 'Major, pages22,24-5. Also see

OTA, pages 284-6;l

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489

"Because of the limited usefulness of peripheral intravenous feeding and the special burdens of total

parenteral feeding-and because few patients so completely lack a digestive system that they must

depend on these measures for their sole source of nutrition - enteral tube feeding is the focus of the

current debate over medically assisted nutrition and hydration. Such methods are used when a patient

has a functioning digestive system but is unable or unwilling to ingest food orally and/or to swallow' The

most common routes for enteral tube feeding are nasogastric (introducing a thin plastic tube through

the nasal cavity to reach into the stomach), gastrostomy (surgical insertion of a tube through the

abdominal wall into the stomach), and jejunostomy (surgical insertion of a tube through the abdominal

wall into the small intestine). [Footnote 45: 'See Major, pages 22,25-6.'] These methods are the

primary focus of this document.

"Each method of enteral tube feeding has potential side-effects. For example, nasogastric tubes must

be inserted and monitored carefully so they will not introduce food or fluids into the lungs. They may

also irritate sensitive tissues and create discomfort; confused or angry patients may sometimes try to

remove them, and efforls to restrain a patient to prevent this can impose additional discomfort and

other burdens. On the positive side, insertion of these tubes requires no surgery and only a modicum of

training. [Footnote 47: 'Major, page22', OTA, pages 282-3; Rose Laboratories, Tube Feedings: Clinical

Application (1982), pages 28-30.'l

"Gastrostomy and jejunostomy tubes are better tolerated by many patients in need of long-term

feeding. Their most serious physical burdens arise from the fact that their insertion requires surgery

using local or general anesthesia, which involves some risk of infection and other complications. Once

the surgical procedure is completed, these tubes can often be maintained without serious pain or

medical complications, and confused patients do not often *489 aüempt to remove them. [Footnote 48:

'Major, page 22; OTA, page 282. Many ethicists observe that there is no morally signif cant difference

in principle between withdrawing a life-sustaining procedure and failing to initiate it. However, surgically

implanting a feeding tube and maintaining it once implanted may involve a different proportion of benefìt

to burden, because the transient risks of the initial surgical procedure will not continue or recur during

routine maintenance of the tube.'l

"Conclusion Ihttp:i/www.usccb.org/prolife/issues/euthanas/nutconc'shtml]

"Euthanasia Menu Ihttp://www.usccb.org/prolife/issuesieuthanas/index.shtml]."

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Duties, Responsibilities & Ethics of the Guardian of the Person and Property 6 Wendy Sheinberg, Esq. Davidow Davidow Siegel & Stern, LLP

Wendy Hoey Sheinberg, Esq., CELA Wendy Sheinberg, is a partner in the law firm of Davidow, Davidow, Siegel & Stern LLP, she practices in the five boroughs, Nassau and Suffolk counties. Wendy has been practicing law in New York State since 1992. She is one of 36 attorneys on New York presently certified by the National Elder Law Foundation as a Certified Elder Law Attorney. In 2007 Wendy received the National Academy of Elder Law Attorney’s highest honor being named a Fellow of the Academy; this honor has been bestowed on fewer than 80 attorneys nationwide. Wendy’s primary areas of practice are Guardianship, Special Needs Law, Elder Law, Trust and Estate Planning for same and mixed gender couples and Trust and Estate Administration, and she serves as a Part 36 Court Appointee. Wendy has lectured on topics including Guardianship, Special Needs, Elder Law, Estate Planning, Medicaid, Senior Housing and on Probate and Estate Administration. She has lectured for the New York State Bar Association, the National Academy of Elder Law Attorneys, the Nassau County Bar Association, National Elder Law Foundation, National Autism Association of New York, the Mount Sinai School of Medicine- Seaver Autism Center, the Jewish National Fund, United Cerebral Palsy, and many other notable professional civic and religious groups. Wendy has been published in the New York State Bar Association Law Journal, the University of South Dakota Law Review, the NAELA Quarterly, New York Times, West’s New York Elder Law Report, the NAELA News, Newsday, Senior News and the Journal of the Nassau County Bar Association and other notable publications. Wendy has been interviewed on radio and television programs on topics relating to Special Needs Law, Guardianship, Planned Giving, Elder Law, Estate Planning and Public Benefits, and by such notable publications as the New York Times and US News and World Reports. Wendy has been peer reviewed by through Martindale Hubbell and has received an AV Preeminent 5 out of 5 rating. Wendy is a member of the Board of Directors of the National Academy of Elder Law Attorneys. She is a member of the New York State Bar Association, a Member of the Board of Directors of the Long Beach Lawyers Association and is a Member of Nassau County Bar Association. Wendy is a past member of the Association of the Bar of the City of New York and has served on its committee on Legal Problems of the Aging. Wendy is admitted to the Bar in New York State and Connecticut and is admitted to practice in the United States District Courts of the Eastern and Southern Districts. As of 11/21/11

CERTIFIED GUARDIAN, COURT EVALUATOR AND COUNSEL FOR ALLEGED INCAPACITATED PERSON TRAINING

Tuesday, December 13, 2011 ◊ 9:00 A.M. – 5:00 P.M.

Duties, Responsibilities and Ethics of a Guardian of the Person and the Property

Wendy H. Sheinberg, Esq., CELA Davidow, Davidow, Siegel & Stern, LLP

Table of Contents Selections from text of MHL Article 81 Pages 1 to 28 Selections from Guardian Assistance Network Website Kings County Pages 29 to 58 Selections from NY County Supreme Court Website Pages 59 to 74 Sample forms from NY County Supreme Court Website Pages 75 to 119 Selections from Nassau County Supreme Court Website Pages 120 to 122 Sample forms from Nassau County Supreme Court Website Pages 123 to 124 Selections from Bronx County Supreme Court Website Pages 125 to 128 Link for Queens County Supreme Court Website Pages 129 to 129 Copy of Slides Pages 130 to End

NEW YORK MENTAL HYGIENE LAW: ARTICLE 81 This link takes you to a free website with the text of Article 81

http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@SLMHY0TEA81+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=01628865+&TARGET=VIEW

The simple home page is:

http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS

Scroll down to MHY Mental Hygiene Law. Click the link.

Scroll down to Article 81. Click the link.

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Mental Hygiene Law Article 81 81.01 - Legislative findings and purpose. 81.02 - Power to appoint a guardian of the person and/or property; standard for appointment. 81.03 - Definitions. 81.04 - Jurisdiction. 81.05 - Venue. 81.06 - Who may commence a proceeding. 81.07 - Notice. 81.08 - Petition. 81.09 - Appointment of court evaluator. 81.10 - Counsel. 81.11 - Hearing. 81.12 - Burden and quantum of proof. 81.13 - Timing of hearing. 81.14 - Record of the proceedings. 81.15 - Findings. 81.16 - Dispositional alternatives. 81.17 - Nomination of guardian. 81.18 - Foreign guardian for a person not present in the state. 81.19 - Eligibility as guardian. 81.20 - Duties of guardian. 81.21 - Powers of guardian; property management. 81.22 - Powers of guardian; personal needs. 81.23 - Provisional remedies. 81.24 - Notice of pendency. 81.25 - Filing of bond by guardian. 81.26 - Designation of clerk to receive process. 81.27 - Commission to guardian. 81.28 - Compensation of guardian. 81.29 - Effect of the appointment on the incapacitated person. 81.30 - Initial report. 81.31 - Annual report. 81.32 - Examination of initial and annual reports. 81.33 - Intermediate and final report. 81.34 - Decree on filing instruments approving accounts. 81.35 - Removal of guardian. 81.36 - Discharge or modification of powers of guardian. 81.37 - Resignation or suspension of powers of guardian. 81.38 - Vacancy in office. 81.39 - Guardian education requirements. 81.40 - Court evaluator education requirements. 81.41 - Court examiner education requirements. 81.42 - Compliance. 81.43 - Proceedings to discover property withheld. 81.44 - Proceedings upon the death of an incapicitated person.

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Selected sections of Article 81

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Laws of New York

§ 81.20 Duties of guardian. (a) Duties of guardian generally. 1. a guardian shall exercise only those powers that the guardian is authorized to exercise by court order; 2. a guardian shall exercise the utmost care and diligence when acting on behalf of the incapacitated person; 3. a guardian shall exhibit the utmost degree of trust, loyalty and fidelity in relation to the incapacitated person; 4. a guardian shall file an initial and annual reports in accordance with sections 81.30 and 81.31 of this article; 5. a guardian shall visit the incapacitated person not less than four times a year or more frequently as specified in the court order; 6. a guardian who is given authority with respect to property management for the incapacitated person shall: (i) afford the incapacitated person the greatest amount of independence and self-determination with respect to property management in light of that person's functional level, understanding and appreciation of his or her functional limitations, and personal wishes, preferences and desires with regard to managing the activities of daily living; (ii) preserve, protect, and account for such property and financial resources faithfully; (iii) determine whether the incapacitated person has executed a will, determine the location of any will, and the appropriate persons to be notified in the event of the death of the incapacitated person and, in the event of the death of the incapacitated person, notify those persons; (iv) use the property and financial resources and income available therefrom to maintain and support the incapacitated person, and to maintain and support those persons dependent upon the incapacitated person; (v) at the termination of the appointment, deliver such property to the person legally entitled to it; (vi) file with the recording officer of the county wherein the incapacitated person is possessed of real property, an acknowledged statement to be recorded and indexed under the name of the incapacitated person identifying the real property possessed by the incapacitated person, and the tax map numbers of the property, and stating the date of adjudication of incapacity of the person regarding property management, and the name, address, and telephone number of the guardian and the guardian's surety; and (vii) perform all other duties required by law. 7. a guardian who is given authority relating to the personal needs of the incapacitated person shall afford the incapacitated person the greatest amount of independence and self-determination with respect to personal needs in light of that person's functional level, understanding and appreciation of that person's functional limitations, and personal wishes, preferences and desires with regard to managing the activities

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Laws of New York

of daily living.


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Laws of New York

§ 81.21 Powers of guardian; property management. (a) Consistent with the functional limitations of the incapacitated person, that person's understanding and appreciation of the harm that he or she is likely to suffer as the result of the inability to manage property and financial affairs, and that person's personal wishes, preferences, and desires with regard to managing the activities of daily living, and the least restrictive form of intervention, the court may authorize the guardian to exercise those powers necessary and sufficient to manage the property and financial affairs of the incapacitated person; to provide for the maintenance and support of the incapacitated person, and those persons depending upon the incapacitated person; to transfer a part of the incapacitated person's assets to or for the benefit of another person on the ground that the incapacitated person would have made the transfer if he or she had the capacity to act. Transfers made pursuant to this article may be in any form that the incapacitated person could have employed if he or she had the requisite capacity, except in the form of a will or codicil. Those powers which may be granted include, but are not limited to, the power to: 1. make gifts; 2. provide support for persons dependent upon the incapacitated person for support, whether or not the incapacitated person is legally obligated to provide that support; 3. convey or release contingent and expectant interests in property, including marital property rights and any right of survivorship incidental to joint tenancy or tenancy by the entirety; 4. exercise or release powers held by the incapacitated person as trustee, personal representative, guardian for minor, guardian, or donee of a power of appointment; 5. enter into contracts; 6. create revocable or irrevocable trusts of property of the estate which may extend beyond the incapacity or life of the incapacitated person; 7. exercise options of the incapacitated person to purchase securities or other property; 8. exercise rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value; 9. exercise any right to an elective share in the estate of the incapacitated person's deceased spouse; 10. renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer consistent with paragraph (d) of section 2-1.11 of the estates, powers and trusts law; 11. authorize access to or release of confidential records; 12. apply for government and private benefits; 13. marshall assets; 14. pay the funeral expenses of the incapacitated person; 15. pay such bills as may be reasonably necessary to maintain the


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Laws of New York

incapacitated person; 16. invest funds of the incapacitated person as permitted by section 11-2.3 of the estates, powers and trusts law; 17. lease the primary residence for up to three years; 18. retain an accountant; 19. pay bills after the death of the incapacitated person provided the authority existed to pay such bills prior to death until a temporary administrator or executor is appointed; and 20. defend or maintain any judicial action or proceeding to a conclusion until an executor or administrator is appointed.

The guardian may also be granted any power pursuant to this subdivision granted to committees and conservators and guardians by other statutes subject to the limitations, conditions, and responsibilities of the exercise thereof unless the granting of such power is inconsistent with the provisions of this article. (b) If the petitioner or the guardian seeks the authority to exercise a power which involves the transfer of a part of the incapacitated person's assets to or for the benefit of another person, including the petitioner or guardian, the petition shall include the following information: 1. whether any prior proceeding has at any time been commenced by any person seeking such power with respect to the property of the incapacitated person and, if so, a description of the nature of such application and the disposition made of such application; 2. the amount and nature of the financial obligations of the incapacitated person including funds presently and prospectively required to provide for the incapacitated person's own maintenance, support, and well-being and to provide for other persons dependent upon the incapacitated person for support, whether or not the incapacitated person is legally obligated to provide that support; a copy of any court order or written agreement setting forth support obligations of the incapacitated person shall be attached to the petition if available to the petitioner or guardian; 3. the property of the incapacitated person that is the subject of the present application; 4. the proposed disposition of such property and the reasons why such disposition should be made; 5. whether the incapacitated person has sufficient capacity to make the proposed disposition; if the incapacitated person has such capacity, his or her written consent shall be attached to the petition; 6. whether the incapacitated person has previously executed a will or similar instrument and if so, the terms of the most recently executed will together with a statement as to how the terms of the will became known to the petitioner or guardian; for purposes of this article, the term "will" shall have the meaning specified in section 1-2.19 of the estates, powers and trusts law and "similar instrument" shall include a revocable or irrevocable trust:


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Laws of New York

(i) if the petitioner or guardian can, with reasonable diligence, obtain a copy, a copy of the most recently executed will or similar instrument shall be attached to the petition; in such case, the petition shall contain a statement as to how the copy was secured and the basis for the petitioner or guardian's belief that such copy is a copy of the incapacitated person's most recently executed will or similar instrument. (ii) if the petitioner or guardian is unable to obtain a copy of the most recently executed will or similar instrument, or if the petitioner or guardian is unable to determine whether the incapacitated person has previously executed a will or similar instrument, what efforts were made by the petitioner or guardian to ascertain such information. (iii) if a copy of the most recently executed will or similar instrument is not otherwise available, the court may direct an attorney or other person who has the original will or similar instrument in his or her possession to turn a photocopy over to the court for its examination, in camera. A photocopy of the will or similar instrument shall then be turned over by the court to the parties in such proceeding unless the court finds that to do so would be contrary to the best interests of the incapacitated person;

7. a description of any significant gifts or patterns of gifts made by the incapacitated person; 8. the names, post-office addresses and relationships of the presumptive distributees of the incapacitated person as that term is defined in subdivision forty-two of section one hundred three of the surrogate's court procedure act and of the beneficiaries under the most recent will or similar instrument executed by the incapacitated person. (c) Notice of a petition seeking relief under this section shall be served upon: (i) the persons entitled to notice in accordance with paragraph one of subdivision (d) of section 81.07 of this article; (ii) if known to the petitioner or guardian, the presumptive distributees of the incapacitated person as that term is defined in subdivision forty-two of section one hundred three of the surrogate's court procedure act unless the court dispenses with such notice; and (iii) if known to the petitioner or guardian, any person designated in the most recent will or similar instrument of the incapacitated person as beneficiary whose rights or interests would be adversely affected by the relief requested in the petition unless the court dispenses with such notice. (d) In determining whether to approve the application, the court shall consider: 1. whether the incapacitated person has sufficient capacity to make the proposed disposition himself or herself, and, if so, whether he or she has consented to the proposed disposition; 2. whether the disability of the incapacitated person is likely to be of sufficiently short duration such that he or she should make the


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Laws of New York

determination with respect to the proposed disposition when no longer disabled; 3. whether the needs of the incapacitated person and his or her dependents or other persons depending upon the incapacitated person for support can be met from the remainder of the assets of the incapacitated person after the transfer is made; 4. whether the donees or beneficiaries of the proposed disposition are the natural objects of the bounty of the incapacitated person and whether the proposed disposition is consistent with any known testamentary plan or pattern of gifts he or she has made; 5. whether the proposed disposition will produce estate, gift, income or other tax savings which will significantly benefit the incapacitated person or his or her dependents or other persons for whom the incapacitated person would be concerned; and 6. such other factors as the court deems relevant. (e) The court may grant the application if satisfied by clear and convincing evidence of the following and shall make a record of these findings: 1. the incapacitated person lacks the requisite mental capacity to perform the act or acts for which approval has been sought and is not likely to regain such capacity within a reasonable period of time or, if the incapacitated person has the requisite capacity, that he or she consents to the proposed disposition; 2. a competent, reasonable individual in the position of the incapacitated person would be likely to perform the act or acts under the same circumstances; and 3. the incapacitated person has not manifested an intention inconsistent with the performance of the act or acts for which approval has been sought at some earlier time when he or she had the requisite capacity or, if such intention was manifested, the particular person

would be likely to have changed such intention under the circumstances existing at the time of the filing of the petition. (f) Nothing in this article imposes any duty on the guardian to commence a special proceeding pursuant to this article seeking to transfer a part of the assets of the incapacitated person to or for the benefit of another person and the guardian shall not be liable or accountable to any person for having failed to commence a special proceeding pursuant to this article seeking to transfer a part of the assets of the incapacitated person to or for the benefit of another person.


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Laws of New York

§ 81.22 Powers of guardian; personal needs. (a) Consistent with the functional limitations of the incapacitated person, that person's understanding and appreciation of the harm that he or she is likely to suffer as the result of the inability to provide for personal needs, and that person's personal wishes, preferences, and desires with regard to managing the activities of daily living, and the least restrictive form of intervention, the court may grant to the guardian powers necessary and sufficient to provide for the personal needs of the incapacitated person. Those powers which may be granted include, but are not limited to, the power to: 1. determine who shall provide personal care or assistance; 2. make decisions regarding social environment and other social aspects of the life of the incapacitated person; 3. determine whether the incapacitated person should travel; 4. determine whether the incapacitated person should possess a license to drive; 5. authorize access to or release of confidential records; 6. make decisions regarding education; 7. apply for government and private benefits; 8. (i) for decisions in hospitals as defined by subdivision eighteen of section twenty-nine hundred ninety-four-a of the public health law, act as the patient's surrogate pursuant to and subject to article twenty-nine-CC of the public health law, and (ii) in all other circumstances, to consent to or refuse generally accepted routine or major medical or dental treatment, subject to the decision-making standard in subdivision four of section twenty-nine hundred ninety-four-d of the public health law; 9. choose the place of abode; the choice of abode must be consistent with the findings under section 81.15 of this article, the existence of and availability of family, friends and social services in the community, the care, comfort and maintenance, and where appropriate, rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person resides; placement of the incapacitated person in a nursing home or residential care facility as those terms are defined in section two thousand eight hundred one of the public health law, or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person. (b) No guardian may: 1. consent to the voluntary formal or informal admission of the incapacitated person to a mental hygiene facility under article nine or fifteen of this chapter or to a chemical dependence facility under article twenty-two of this chapter; 2. revoke any appointment or delegation made by the incapacitated person pursuant to sections 5-1501, 5-1601 and 5-1602 of the general obligations law, sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law, or any living


[10]

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will.


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Laws of New York

§ 81.28 Compensation of guardian. (a) The court shall establish, and may from time to time modify, a plan for the reasonable compensation of the guardian or guardians. The plan for compensation of such guardian must take into account the specific authority of the guardian or guardians to provide for the personal needs and/or property management for the incapacitated person, and the services provided to the incapacitated person by such guardian. (b) If the court finds that the guardian has failed to discharge his or her duties satisfactorily in any respect, the court may deny or reduce the compensation which would otherwise be allowed.

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Laws of New York

§ 81.29 Effect of the appointment on the incapacitated person. (a) An incapacitated person for whom a guardian has been appointed retains all powers and rights except those powers and rights which the guardian is granted. (b) Subject to subdivision (a) of this section, the appointment of a guardian shall not be conclusive evidence that the person lacks capacity for any other purpose, including the capacity to dispose of property by will. (c) The title to all property of the incapacitated person shall be in such person and not in the guardian. The property shall be subject to the possession of the guardian and to the control of the court for the purposes of administration, sale or other disposition only to the extent directed by the court order appointing the guardian. (d) If the court determines that the person is incapacitated and appoints a guardian, the court may modify, amend, or revoke any previously executed appointment, power, or delegation under section 5-1501, 5-1505, or 5-1506 of the general obligations law or section two thousand nine hundred sixty-five of the public health law, or section two thousand nine hundred eighty-one of the public health law notwithstanding section two thousand nine hundred ninety-two of the public health law, or any contract, conveyance, or disposition during lifetime or to take effect upon death, made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed appointment, power, delegation, contract, conveyance, or disposition during lifetime or to take effect upon death, was made while the person was incapacitated or if the court determines that there has been a breach of fiduciary duty by the previously appointed agent. In such event, the court shall require that the agent account to the guardian. The court shall not, however, invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person.


[13]

Laws of New York

§ 81.30 Initial report. (a) No later than ninety days after the issuance of the commission to the guardian, the guardian shall file with the court that appointed the guardian a report in a form prescribed by the court stating what steps the guardian has taken to fulfill his or her responsibilities. Proof of completion of the guardian education requirements under section 81.39 of this article must be filed with the initial report. (b) To the extent that the guardian has been granted powers with respect to property management, the initial report shall contain a verified and complete inventory of the property and financial resources over which the guardian has control, the location of any will executed by the incapacitated person, the guardian's plan, consistent with the court's order of appointment, for the management of such property and financial resources, and any need for any change in the powers authorized by the court. (c) To the extent that the guardian has been granted powers regarding personal needs, the initial report shall contain a report of the guardian's personal visits with the incapacitated person, and the steps the guardian has taken, consistent with the court's order, to provide for the personal needs of that person, the guardian's plan, consistent with the court's order of appointment, for providing for the personal needs of the incapacitated person, a copy of any directives in accordance with sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law, any living will, and any other advance directive, and any necessary change in the powers authorized by the court. The plan for providing for the personal needs of the incapacitated person shall include the following information: 1. the medical, dental, mental health, or related services that are to be provided for the welfare of the incapacitated person; 2. the social and personal services that are to be provided for the welfare of the incapacitated person; 3. any physical, dental, and mental health examinations necessary to determine the medical, dental, and mental health treatment needs; and 4. the application of health and accident insurance and any other private or government benefits to which the incapacitated person may be entitled to meet any part of the costs of medical, dental, mental health, or related services provided to the incapacitated person. (d) If the initial report sets forth any reasons for a change in the powers authorized by the court, the guardian shall make an application within ten days of the filing of the report on notice to the persons entitled to such notice in accordance with paragraph one of subdivision (d) of section 81.07 of this article for such relief. If the initial report sets forth any reasons for a change in the powers authorized by the court and the guardian fails to act under this subdivision, any person entitled to commence a proceeding under this article may petition the court for a change in such powers on notice to the guardian and the persons entitled to such notice in accordance with paragraph one of


[14]

Laws of New York

subdivision (d) of section 81.07 of this article for such relief. (e) The guardian shall send a copy of the initial report to the incapacitated person by mail unless the court orders otherwise pursuant to paragraph seven of subdivision (b) and paragraph nine of subdivision (c) of section 81.15 of this article. (f) The guardian shall send a copy of the initial report to the court evaluator and counsel for the incapacitated person at the time of the guardianship proceeding unless the court orders otherwise pursuant to paragraph seven of subdivision (b) and paragraph nine of subdivision (c) of section 81.15 of this article.

(g) The guardian shall send a copy of the initial report to the court examiner. (h) If the incapacitated person resides in a facility, the guardian shall send a duplicate of such report to the chief executive officer of that facility. (i) If the incapacitated person resides in a mental hygiene facility, the guardian shall send a duplicate of such report to the mental hygiene legal service of the judicial department in which the residence is located.


[15]

Laws of New York

§ 81.31 Annual report. (a) Filing of annual report. Every guardian shall file a report annually in the month of May, or at any other time upon motion or order of the court. (b) The report shall be in a form prescribed by the court and shall include the following information: 1. the present address and telephone number of the guardian. 2. the present address, and telephone number of the incapacitated person; if the place of residence of the incapacitated person is not his or her personal home, the name, address, and telephone number of the facility or place at which the person resides and the name of the chief executive officer of the facility or person otherwise responsible for the person's care. 3. any major changes in the physical or mental condition of the incapacitated person and any substantial change in medication. 4. the date that the incapacitated person was last examined or otherwise seen by a physician and the purpose of that visit. 5. a statement by a physician, psychologist, nurse clinician, or social worker, or other person that has evaluated or examined the incapacitated person within the three months prior to the filing of the report regarding an evaluation of the incapacitated person's condition and the current functional level of the incapacitated person. 6. to the extent the guardian is charged with providing for the personal needs of the incapacitated person: (i) a statement of whether the current residential setting is best suited to the current needs of the incapacitated person; (ii) a resume of any professional medical treatment given to the ward in the preceding year; (iii) the plan for medical, dental, and mental health treatment, and related services in the coming year; (iv) information concerning the social condition of the incapacitated person, including: the social and personal services currently utilized by the incapacitated person; the social skills of the incapacitated person; and the social needs of the incapacitated person. 7. to the extent the guardian is charged with property management, information required by the provisions of the surrogate's court procedure act prescribing the form of papers to be filed upon the annual accounting of a general guardian of an infant's property. 8. where the guardian has used or employed the services of the incapacitated person or where moneys have been earned by or received on behalf of such incapacitated person an accounting of any moneys earned or derived from such services. 9. a resume of any other activities performed by the guardian on behalf of the incapacitated person. 10. facts indicating the need to terminate the appointment of the guardian, or for any alteration in the powers of the guardian and what specific authority is requested or what specific authority of the guardian will be affected.


[16]

Laws of New York

11. any other information which the guardian may be required to file by the order of appointment. (c) The guardian shall send a copy of the annual report to the incapacitated person by mail unless the court orders otherwise pursuant to paragraph seven of subdivision (b) and paragraph nine of subdivision (c) of section 81.15 of this article, shall send a copy of the annual report to the court examiner, and shall file a copy of the annual report as provided herein. If the incapacitated person resides in a facility, the guardian shall send a duplicate of such report to the chief executive officer of that facility. If the incapacitated person resides

in a mental hygiene facility, the guardian shall send a duplicate of such report to the mental hygiene legal service of the judicial department in which the residence is located. If mental hygiene legal service was appointed as court evaluator or as counsel for the incapacitated person at the time of the guardianship proceeding, the guardian shall send a duplicate of such report to the mental hygiene legal service of the judicial department where venue of the guardianship proceeding was located if so ordered by the court. (d) The report shall be filed in the office of the clerk of the court which appointed the guardian. (e) If the annual report sets forth any reasons for a change in the powers authorized by the court, the guardian shall make an application within ten days of the filing of the report on notice to the persons entitled to such notice in accordance with paragraph three of subdivision (c) of section 81.16 of this article for such relief. If the annual report sets forth any reasons for a change in the powers authorized by the court, and the guardian fails to act in accordance with this subdivision, any person entitled to commence a proceeding under this article may petition the court for a change in such powers on notice to the guardian and the persons entitled to such notice in accordance with paragraph three of subdivision (c) of section 81.16 of this article for such relief.


[17]

Laws of New York

§ 81.32 Examination of initial and annual reports. (a) Examination of reports generally. 1. Initial report. Within thirty days of the filing of the initial report, the initial report filed by a guardian under this article shall be examined. 2. Annual examination. Within thirty days after the filing of the annual report of the preceding year, the annual reports filed by guardians under this article shall be examined to determine the condition and care of the incapacitated person, the finances of the incapacitated person, and the manner in which the guardian has carried out his or her duties and exercised his or her powers. (b) Examiners. The presiding justice of the appellate division in each department, or a justice of the supreme court or a special referee designated by a majority of the justices of the appellate division in each department at the request of the presiding justice, shall examine, or cause to be examined by persons designated by the presiding justice or the justices as examiners, all such reports. (c) Failure to report. 1. If a guardian fails to file his or her initial or annual report, the person authorized to examine the report shall demand that the guardian file the report within fifteen days after the service of the demand upon him or her. A copy of the demand shall be served upon the guardian or his or her resident agent by certified mail. 2. Upon failure to comply with such demand, the court, may upon the motion of the court examiner, enter an order requiring compliance with the demand and may deny or reduce the amount of the compensation of the guardian, or remove the guardian pursuant to section 81.35 of this article absent a showing that the guardian has acted in good faith. (d) Incomplete report. 1. If the person authorized to examine the report is of the opinion that a more complete or satisfactory report should be filed, the person authorized to examine the report shall demand that the guardian file a revised report or proof of any item in the report. A copy of the demand shall be served upon the guardian or his or her resident agent by certified mail. 2. Upon failure to comply with such demand, the court, may upon the motion of the court examiner, enter an order requiring compliance with the demand and may deny or reduce the amount of the compensation of the guardian, or remove the guardian pursuant to section 81.35 of this article absent a showing that the guardian has acted in good faith. (e) Duty of examiners. The person examining the report may examine the guardian and other witnesses under oath and reduce their testimony to writing. The person examining the report, on five days notice to the guardian, shall file a report in the form and manner prescribed by the order appointing the examiner. (f) Expenses of examination. The expenses of the examination shall be payable out of the estate of the incapacitated person examined if the estate amounts to five thousand dollars or more, or, if the estate


[18]

Laws of New York

amounts to less than this sum, by the county treasurer of the county or, within the city of New York by the comptroller of the city of New York, out of any court funds in his or her hands.


[19]

Laws of New York

§ 81.33 Intermediate and final report. (a) A guardian may move in the court of his or her appointment for an order permitting him or her to render an intermediate report to the date of the filing thereof in a form prescribed by the court which shall include the same information as is required under section 81.31 of this article provided, however, that if the incapacitated person has died the report need not include information otherwise required in paragraphs five and six of subdivision (b) of section 81.31 of this article. The court may order the report to be filed with the clerk of the court on or before a fixed date. (b) When a guardian dies or is removed, suspended, discharged pursuant to the provisions of this article, or allowed to resign, the court shall order a final report in a form prescribed by the court which shall include the same information as is required under section 81.31 of this article provided, however, that if the incapacitated person has died the report need not include information otherwise required in paragraphs five and six of subdivision (b) of section 81.31 of this article. When such a report has been made in the course of a proceeding to remove a guardian, the court may dispense with a further report. (c) Notice of the filing of a report under this section shall be served upon the persons entitled to notice pursuant to paragraph three of subdivision (c) of section 81.16 of this article. If the incapacitated person is deceased, notice shall also be served upon his or her executor or administrator, if any. (d) The court may appoint counsel for the incapacitated person, if living, for the protection of such person's rights and interests with regard to such report. The court may appoint a referee to hear the matter and report to the court. (e) Upon the motion for a confirmation of the report of the referee, or if the report is made before the court, upon the court's determination, the report shall be judicially approved and filed. The compensation of the referee and of counsel shall be fixed by the court and shall be payable out of the estate of the incapacitated person unless it is determined that the incapacitated person is indigent. (f) If the incapacitated person resides in a facility, a copy of a report under this section shall be served upon the chief executive officer in charge of that facility and upon the mental hygiene legal service of the judicial department in which the residence is located.


[20]

Laws of New York

§ 81.34 Decree on filing instruments approving accounts. (a) The guardian or the personal representative of the guardian may present to the court a petition showing the names and addresses of all persons entitled to receive notice pursuant to paragraph three of subdivision (c) of section 81.16 of this article and the personal representative of the estate showing that, to the extent the guardian is responsible for the property of the incapacitated person, all taxes have been paid or that no taxes are due and that the petitioner has fully reported and has made full disclosure in writing of all the guardian's actions affecting the property of the incapacitated person to all persons interested and seeking a decree releasing and discharging the petitioner. Upon the death of the incapacitated person, the guardian is authorized to pay the funeral expenses of the incapacitated person and, in the absence of a duly appointed personal representative of the estate, pay estimated estate and income tax charges, as well as other charges of emergent nature. (b) The petitioner shall also show that the incapacitated person has died or that the guardian has died, or has been removed, suspended, or discharged pursuant to the provisions of this article, or allowed to resign. (c) The petitioner shall also file with the petition acknowledged instruments executed by all persons interested or in the case of an infant, or incapacitated person whose claim has been paid, by the guardian, or guardian receiving payment, approving the report of the petitioner and releasing and discharging the petitioner. (d) The court may thereupon make a decree releasing and discharging the petitioner and the sureties on his or her bond, if any, from any further liability to the persons interested.


[21]

Laws of New York

§ 81.35 Removal of guardian. Upon motion, the court appointing a guardian may remove such guardian when the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just. Notice of motion shall be served on the guardian and persons entitled to receive notice pursuant to paragraph three of subdivision (c) of section 81.16 of this article. The motion may be made by the person examining initial and annual reports pursuant to section 81.32 of this article, or by any person entitled to commence a proceeding under this article, including the incapacitated person. The court may fix the compensation of any attorney or person prosecuting the motion. It may compel the guardian to pay personally the costs of the motion if granted.


[22]

Laws of New York

§ 81.36 Discharge or modification of powers of guardian. (a) The court appointing the guardian shall discharge such guardian, or modify the powers of the guardian where appropriate, if it appears to the satisfaction of the court that: 1. the incapacitated person has become able to exercise some or all of the powers necessary to provide for personal needs or property management which the guardian is authorized to exercise; 2. the incapacitated person has become unable to exercise powers necessary to provide for personal needs or property management which the guardian is not authorized to exercise; 3. the incapacitated person has died; or 4. for some other reason, the appointment of the guardian is no longer necessary for the incapacitated person, or the powers of the guardian should be modified based upon changes in the circumstances of the incapacitated person. (b) The application for relief under this section may be made by the guardian, the incapacitated person, or any person entitled to commence a proceeding under this article. (c) There shall be a hearing on notice to the persons entitled to notice pursuant to paragraph three of subdivision (c) of section 81.16 of this article. The court may for good cause shown dispense with the hearing provided that an order of modification increasing the powers of the guardian shall set forth the factual basis for dispensing with the hearing. If the incapacitated person or his or her counsel raises an issue of fact as to the ability of the incapacitated person to provide for his or her personal needs or property management and demands a jury trial of such issue, the court shall order a trial by jury thereof. (d) To the extent that relief sought under this section would terminate the guardianship or restore certain powers to the incapacitated person, the burden of proof shall be on the person objecting to such relief. To the extent that relief sought under this section would further limit the powers of the incapacitated person, the burden shall be on the person seeking such relief. (e) If the guardian is discharged because the incapacitated person becomes fully able to care for his or her property, the court shall order that there be restored to such person the property remaining in the hands of the guardian. If the incapacitated person dies, the guardian shall provide for such person's burial or other disposition the cost of which shall be borne by the estate of the incapacitated person.


[23]

Laws of New York

§ 81.37 Resignation or suspension of powers of guardian. (a) The court appointing a guardian may allow the guardian to resign or may suspend the powers of the guardian. (b) Where a guardian is engaged in war service as defined in section seven hundred seventeen of the surrogate's court procedure act, the court, upon motion by the guardian or any other person and upon such notice as the court may direct, may suspend the powers of the guardian until further order of the court. If the suspension will leave no other person acting as guardian, the motion shall seek the appointment of a successor. When the suspended guardian becomes able to serve, he or she may be reinstated by the court upon motion and such notice as the court may direct. If the suspended guardian is reinstated, the court shall thereupon discharge his or her successor, who may be required to account, and make any other order as justice requires.


[24]

Laws of New York

§ 81.43 Proceedings to discover property withheld. (a) To 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 interest in real property or 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 who withholds the same from the guardian, whether such possession or control was obtained before or after the appointment of the guardian, or that the respondent refuses to disclose knowledge or information which such person may have concerning the same or which will aid the guardian in making discovery of such property. The petition shall request that respondent be ordered to attend an inquiry and be examined accordingly and deliver property of the incapacitated person if it is within his or her control. The petition may be accompanied by an affidavit or other written evidence, tending to support the allegations thereof. If the court is satisfied on the papers so presented that there are reasonable grounds for the inquiry, it must make an order accordingly, which may be returnable forthwith, or at a future time fixed by the court, and may be served at any time before the hearing. If it shall appear from the petition or from the answer interposed thereto, or in the course of the inquiry made pursuant to the order that a person other than the respondent in the proceeding claims an interest in the property or the proceeds or the value thereof, the court may by the original order or by supplemental order, direct such additional party to attend and be examined in the proceeding in respect of his or her adverse claim, and deliver the property if in his or her control or the proceeds or value thereof. Service of such an order must be made by delivery of a certified copy thereof to the person or persons named therein and the payment or tender, to each of the sum required by law to be paid or tendered to a witness who is subpoenaed to attend a trial in such court. (b) If the person directed to appear submits an answer denying any knowledge concerning or the possession of any property which belongs to the incapacitated person or should be delivered to the guardian, or shall make default in answer, he or she shall be sworn to answer truly all questions put to him or her regarding the inquiry requested in the petition. Any claim of title to or right to the possession of any property of the incapacitated person must be made by verified answer in writing. If such answer is interposed, the issues raised thereby shall be tried according to the usual practice of the court as a litigated issue but the interposition of such answer shall not limit the right of the guardian to proceed with the inquiry in respect of property not so claimed by the verified answer. If possession of the property is denied, proof on that issue may be presented to the court by either party. The court may in an appropriate case make interim decrees directing the delivery of property not claimed by verified answer and may continue the


[25]

Laws of New York

proceeding for determination of any litigated issue. If it appears that the guardian is entitled to the possession of the property, the decree shall direct delivery thereof to the guardian or if the property shall have been diverted or disposed of, the decree may direct payment of the proceeds or the value of such property or may impress a trust upon said proceeds or make any determination which a court of equity might decree in following trust property funds. In any case in which a verified answer is served and the court after a trial or hearing determines the issue, the court may in its discretion award costs not exceeding fifty dollars and disbursements to be paid by the unsuccessful party.


[26]

Laws of New York

§ 81.44 Proceedings upon the death of an incapacitated person. (a) When used in this section: 1. "Statement of death" means a statement, in writing and acknowledged, containing the caption and index number of the guardianship proceeding, and the name and address of the last residence of the deceased incapacitated person, the date and place of death, and the names and last known addresses of all persons entitled to notice of further guardianship proceedings pursuant to paragraph three of subdivision (c) of section 81.16 of this article including the nominated and/or appointed personal representative, if any, of the deceased incapacitated person's estate. 2. "Personal representative" means a fiduciary as defined by subdivision twenty-one of section 103 of the surrogate's court procedure act to whom letters have been issued and who is authorized to marshal the assets of the decedent's estate. 3. "Public administrator" means a public administrator within or without the city of New York, as established by articles eleven and twelve of the surrogate's court procedure act, or the chief fiscal officer of a county eligible to be appointed an administrator, pursuant to section twelve hundred nineteen of the surrogate's court procedure act. The role of the public administrator under this section is that of a stake holder or escrowee only, and the public administrator shall not, by virtue of this section, have a substantive role in administering the estate. 4. "Statement of assets and notice of claim" means a written statement under oath containing the caption and index number of the guardianship proceeding, the name and address of the incapacitated person at the time of death, a description of the nature and approximate value of guardianship property at the time of the incapacitated person's death; with the approximate amount of any claims, debts or liens against the guardianship property, including but not limited to medicaid liens, tax liens and administrative costs, with an itemization and approximate amount of such costs and claims or liens. (b) Unless otherwise directed by the court, all papers required to be served by this section shall be served by regular mail and by certified mail return receipt requested. (c) Within twenty days of the death of an incapacitated person, the guardian shall: 1. serve a copy of the statement of death upon the court examiner, the duly appointed personal representative of the decedent's estate, or, if no personal representative has been appointed, then upon the personal representative named in the decedent's will or any trust instrument, if known, upon the local department of social services and upon the public administrator of the chief fiscal officer of the county in which the guardian was appointed, and 2. file the original statement of death together with proof of service upon the personal representative and/or public administrator or chief fiscal officer, as the case may be, with the court which issued letters


[27]

Laws of New York

of guardianship. (d) Within one hundred fifty days of the death of the incapacitated person, the guardian shall serve upon the personal representative of the decedent's estate or where there is no personal representative, upon the public administrator or chief fiscal officer, a statement of assets and notice of claim, and, except for property retained to secure any known claim, lien or administrative costs of the guardianship pursuant to subdivision (e) of this section, shall deliver all guardianship property to:

1. the duly appointed personal representative of the deceased incapacitated person's estate, or 2. the public administrator or chief fiscal officer given notice of the filing of the statement of death, where there is no personal representative. 3. any dispute as to the size of the property retained shall be determined by the surrogate court having jurisdiction of the estate. (e) Unless otherwise ordered by the court upon motion by the guardian on notice to the person or entity to whom guardianship property is deliverable, and the court examiner, the guardian may retain, pending the settlement of the guardian's final account, guardianship property equal in value to the claim for administrative costs, liens and debts. (f) Within one hundred fifty days of the incapacitated person's death, the guardian shall file his or her final report with the clerk of the court of the county in which annual reports are filed, and thereupon proceed to judicially settle the final report upon such notice as required by subdivision (c) of section 81.33 of this article, including notice to the person or entity to whom the guardianship property was delivered. There shall be no extension of the time to file a final report except by order of the court. (g) Upon failure of the guardian to comply with subdivisions (d) or (f) of this section, any person entitled to notice of this proceeding may file a petition to compel the guardian to account, to suspend and/or remove the guardian, and to take and state the guardian's account.


[28]

The Guardian Assistance Network (GAN)

http://www.nycourts.gov/ip/gan/index.shtml

[29]

Guardian A

ssistance Netw

ork

● W

hat Is a G

uard

ian?

● Fro

m C

ourt H

earing

to G

uard

iansh

ip

Com

misio

n●

The First 9

0 D

ays: Fro

m C

om

misio

n to

In

itial Rep

ort

● T

he G

uard

ian fo

r Perso

nal N

eeds

● T

he G

uard

ian fo

r Pro

perty M

anag

emen

t●

The In

itial & A

nnual

Rep

orts

● E

ndin

g a G

uard

iansh

ip

● E

spañ

ol

Th

e F

irst 90

Days: F

rom

Co

mm

ission

to In

itial R

ep

ort

Now

that yo

u h

ave your C

om

missio

n in

han

d yo

u can

start to m

ake decisio

ns fo

r yo

ur w

ard th

e way th

e judge w

ants yo

u to

. The first 9

0 d

ays after you received

yo

ur G

uard

iansh

ip C

om

missio

n are im

portan

t since yo

u are learn

ing th

e rules o

f th

e law an

d b

ecom

e familiar w

ith th

e requirem

ents o

f the co

urt A

ND

you are also

exp

ected to

find o

ut h

ow

you can

best care fo

r your w

ard. A

t the en

d o

f those first

90 d

ays you are exp

ected to

write yo

ur In

itial Rep

ort to

the co

urt.

Sin

ce your jo

b is lim

ited to

what th

e judge p

ut in

the o

rigin

al Ord

er and Ju

dgm

ent

you m

ust keep

this d

ocu

men

t han

dy so

that yo

u can

refer to it an

y time yo

u h

ave a q

uestio

n. S

om

e of th

e thin

gs yo

u m

ust d

o d

urin

g th

e first 90 d

ays after you

have received

your C

om

missio

n are very g

eneral an

d so

me d

epen

d o

n w

heth

er you

are a Guard

ian fo

r Property M

anag

emen

t or fo

r Personal N

eeds, o

r both

. You

should

follo

w th

e list belo

w as yo

u start yo

ur w

ork as a g

uard

ian.

● S

tart-Up D

uties o

f All G

uard

ians

● H

ow

can I take care o

f my d

uties an

d also

get read

y to w

rite the In

itial Rep

ort?

Sta

rt-Up

Du

ties o

f All G

uard

ian

s As g

uard

ian, reg

ardless o

f wheth

er you are a g

uard

ian fo

r Personal N

eeds o

r Pro

perty M

anag

emen

t, you m

ust:

● V

isit your w

ard at least o

nce d

urin

g th

e first 90 d

ays (the law

requires yo

u to

visit at least fo

ur tim

es per year)

● A

ttend a g

uard

iansh

ip train

ing p

rogram

, which

explain

s your resp

onsib

ilities as g

uard

ian

● S

ee wheth

er you can

find a w

ill, living w

ill, health

care pro

xy or o

ther

contract created

by yo

ur w

ard

http://ww

w.nycourts.gov/ip/gan/m

anual/first90days.shtml (1 of 3)11/20/2011 9:22:58 A

M

[30]



http://www.nycourts.gov/ip/gan/about/index.shtml

http://www.nycourts.gov/ip/gan/how/index.shtml

http://www.nycourts.gov/ip/gan/manual/index.shtml

http://www.nycourts.gov/ip/gan/manual/what_is.shtml

http://www.nycourts.gov/ip/gan/manual/from_court.shtml



http://www.nycourts.gov/ip/gan/manual/SPANISH.pdf

http://www.nycourts.gov/ip/gan/sample_forms/index.shtml

http://www.nycourts.gov/ip/gan/resources/index.shtml


http://www.nycourts.gov/ip/gan/contact_us.shtml

http://www.nycourts.gov/index.htm

http://www.nycourts.gov/stateseal.shtml


http://www.nycourts.gov/courts/index.shtml

http://www.nycourts.gov/litigants/index.shtml

http://www.nycourts.gov/attorneys/index.shtml

http://www.nyjuror.gov/index.shtml

http://www.nycourts.gov/judges/index.shtml

http://www.nycourts.gov/careers/index.shtml

http://search.nycourts.gov/search?site=Main&client=main_frontend&output=xml_no_dtd&proxystylesheet=main_frontend&proxycustom=%3CHOME/%3E

Guardian A

ssistance Netw

ork

● D

etermin

e what services an

d p

rogram

s your w

ard n

eeds

● S

tart makin

g a p

lan fo

r your w

ard’s care

● S

et up a system

to keep

all docu

men

ts and p

apers in

a safe place

● K

eep receip

ts of all p

aymen

ts you m

ake for yo

ur w

ard

● A

t the en

d o

f the first 9

0 d

ays you m

ust su

bm

it your In

itial Rep

ort to

the

court

Ho

w ca

n I ta

ke ca

re o

f my d

utie

s an

d a

lso g

et re

ad

y to

write

the In

itial

Rep

ort?

O

nce yo

u start to

carry out yo

ur d

uties, it is w

ise to keep

notes o

f everythin

g yo

u

do o

n b

ehalf o

f your w

ard. M

any g

uard

ians b

uy a n

oteb

ook fo

r this p

urp

ose in

w

hich

they w

rite dow

n w

hat th

ey have d

one fo

r their w

ard, w

hom

they h

ave sp

oken

with

, the n

ames o

f peo

ple an

d in

stitutio

ns th

ey have co

ntacted

and th

eir phone n

um

bers an

d ad

dresses. A

good h

abit w

ould

be to

write th

e date d

ow

n fo

r each

activity you d

escribe in

your n

oteb

ook –

such

notes to

yourself are im

portan

t rem

inders th

at you can

use later w

hen

you start w

riting yo

ur In

itial Rep

ort an

d th

e Annual R

eports yo

u are exp

ected to

subm

it in th

e follo

win

g years.

When

you visit yo

ur w

ard o

r when

you u

ndertake an

y task on b

ehalf o

f your w

ard

you sh

ould

write d

ow

n w

hat yo

u h

ave done an

d fo

r what p

urp

ose. W

hen

you visit

your w

ard yo

u sh

ould

write so

me o

f your o

bservatio

ns d

ow

n. A

Guard

ian fo

r Perso

nal N

eeds m

ight ask fo

r example:

● H

ow

well is yo

ur w

ard d

oin

g?

● Is h

e or sh

e clean, w

ell gro

om

ed, co

nten

t?

● H

as he o

r she b

een ill?

● H

ow

well are h

is or h

er perso

nal an

d m

edical n

eeds ad

dressed

?

● A

re there m

ajor ch

anges in

his o

r her co

nditio

n fo

r better o

r for w

orse?

● W

hat ad

ditio

nal services an

d m

edical care d

oes yo

ur w

ard n

eed?

● W

hat ap

poin

tmen

ts must b

e mad

e for yo

ur w

ard.

http://ww



M

[31]

Guardian A

ssistance Netw

ork

● W

hat q

uestio

ns yo

u m

ay have fo

r your w

ard’s careg

ivers (docto

rs, nurses,

hom

ecare workers, th

erapists).

● T

he n

ames, ad

dresses an

d p

hone n

um

bers o

f your w

ard’s d

octo

rs; social

workers; h

om

ecare agen

cies; and o

ther relevan

t info

rmatio

n.

● A

list of all m

edicatio

ns yo

ur w

ard is cu

rrently takin

g, in

cludin

g p

rescriptio

n

dru

gs an

d o

ver-the-co

unter m

edicatio

ns - in

clude h

ow

often

and h

ow

much

each

med

ication is taken

.

In ad

ditio

n to

keepin

g a n

oteb

ook yo

u sh

ould

also g

et in th

e hab

it of keep

ing all

importan

t pap

ers togeth

er in o

ne p

lace, starting w

ith yo

ur O

rder an

d Ju

dgm

ent

and everyth

ing else th

at you w

ill receive from

the co

urt o

ver time. O

ther im

portan

t pap

ers you m

ust save in

a safe place are th

e docu

men

ts you m

ay find in

your

ward

’s hom

e, such

as: insu

rance p

apers, a w

ill or testam

ent, a h

ealth care p

roxy

or livin

g w

ill, tax filings, co

ntracts, an

d an

ythin

g else yo

u fin

d am

ong yo

ur w

ard’s

pap

ers. Som

e guard

ians u

se a large p

lastic contain

er to keep

all their d

ocu

men

ts in

, oth

ers desig

nate a d

rawer in

a file cabin

et they m

ay have.

Guard

ians fo

r Property M

anag

emen

t also m

ust keep

all ban

k statemen

ts, invo

ices an

d receip

ts for m

oney th

ey spen

d eith

er out o

f their o

wn fu

nds o

r out o

f their

ward

’s funds.

NO

TE: H

aving g

ood n

otes an

d receip

ts and d

ocu

men

ts will m

ake your task m

uch

easier in

the lo

ng ru

n w

hen

you m

ust w

rite your In

itial and A

nnual R

eports to

the

court ab

out th

e actions yo

u h

ave taken o

n b

ehalf o

f your w

ard.

State Ju

stice Institu

te G

uard

ian A

ssistance N

etwork | K

ings C

ounty S

uprem

e Court | 3

60 A

dam

s Street, R

oom

723 | B

rooklyn

, NY 1

1201

(347) 2

96-1

948 | G

AN

@co

urts.state.n

y.us

Copyrig

ht ©

2008

Vera In

stitute o

f Justice, In

c. A d

emonstratio

n p

roject o

f the V

era Institu

te of Ju

stice, Inc.

http://ww



M

[32]

mailto:[email protected]

Guardian A

ssistance Netw

ork

● W

hat Is a G

uard

ian?

● Fro

m C

ourt H

earing

to G

uard

iansh

ip

Com

misio

n●

The First 9

0 D

ays: Fro

m C

om

misio

n to

In

itial Rep

ort

● T

he G

uard

ian fo

r Perso

nal N

eeds

● T

he G

uard

ian fo

r Pro

perty M

anag

emen

t●

The In

itial & A

nnual

Rep

orts

● E

ndin

g a G

uard

iansh

ip

● E

spañ

ol

Th

e G

uard

ian

for P

erso

nal N

eed

s

If you are yo

ur w

ard’s G

uard

ian fo

r Personal N

eeds, th

e judge h

as given

you th

e pow

er and d

uty to

make p

ersonal d

ecisions fo

r your w

ard in

just th

ose areas th

e ju

dge d

ecided

your w

ard n

eeds. A

nd b

ecause th

e law says th

at ward

s must b

e given

as much

physical freed

om

and freed

om

of ch

oice as p

ossib

le, you are

required

to in

volve yo

ur w

ard as m

uch

as possib

le when

decisio

ns m

ust b

e mad

e. Exam

ples o

f such

perso

nal d

ecisions are g

enerally th

ose m

ost p

eople m

ake for

them

selves in o

rdin

ary life.

● E

xample

● T

hin

gs G

uard

ians fo

r Personal N

eeds M

ay Not D

o●

Can

I ask the Ju

dge to

chan

ge th

e Ord

er and Ju

dgm

ent?

Exam

ple

: Guard

ian fo

r Personal N

eeds

John B

arnes is a retired

merch

ant m

arine w

ho lives alo

ne in

a small

walk-u

p ap

artmen

t in B

rooklyn

. John is kn

ow

n to

man

y neig

hbors o

n

his b

lock b

ecause h

e is always w

illing to

do sm

all chores fo

r them

. Lately th

e neig

hbors h

ave noticed

that Jo

hn is n

ot lo

okin

g w

ell, his

cloth

es are dirty, an

d h

e has lo

st a lot o

f weig

ht. R

ecently Jo

hn w

as hosp

italized w

hen

he b

roke h

is hip

falling o

n th

e icy street in fro

nt o

f his ap

artmen

t. At th

e hosp

ital the d

octo

rs found h

im co

nfu

sed an

d

sufferin

g fro

m m

alnutritio

n. Jo

hn w

as sent to

a nursin

g h

om

e to learn

to

walk ag

ain. T

he staff th

ere felt that h

e should

not g

o h

om

e again

becau

se he w

as too frail to

live alone. T

he n

ursin

g h

om

e applied

to

have a g

uard

ian ap

poin

ted fo

r John. A

t the h

earing th

e judge fo

und

John to

be frail b

ut also

noticed

that h

e very much

wan

ted to

go b

ack hom

e again

—he h

ated to

be in

the n

ursin

g h

om

e. At th

e hearin

g Jo

hn

agreed

that h

e would

accept a g

uard

ian to

help

him

and th

at he w

ould

accep

t hom

e care to m

ake it possib

le for h

im to

live alone. H

is next

door n

eighbor, H

arry, was ap

poin

ted G

uard

ian fo

r Personal N

eeds to

help

John live at h

om

e, to o

btain

hom

ecare for h

im, an

d to

make su

re th

at John g

oes fo

r regular d

octo

r visits and o

btain

s the m

edicatio

ns h

e

http://ww


anual/guardian4personal_needs.shtml (1 of 3)11/20/2011 9:24:04 A

M

[33]

























Guardian A

ssistance Netw

ork

need

s. The ju

dge fo

und th

at John is still ab

le to take care o

f his

finan

cial affairs and d

id n

ot g

ive Harry th

e pow

er for Pro

perty

Man

agem

ent.

The O

rder an

d Ju

dgm

ent w

ill give yo

u d

irections ab

out yo

ur d

uties as G

uard

ian fo

r Perso

nal N

eeds. Fo

r example, th

e judge m

ay have g

iven yo

u p

ow

er to m

ake all of

the d

ecisions listed

belo

w, o

r just so

me o

f them

:

● W

here yo

ur w

ard w

ill live ●

Wheth

er your w

ard m

ust h

ave hom

e care●

Who w

ill pro

vide p

ersonal care o

r housekeep

ing assistan

ce●

Wheth

er or n

ot yo

ur w

ard m

ay have a d

river’s license o

r travel●

What so

cial enviro

nm

ent an

d so

cial life your w

ard m

ay have

● W

hat, if an

y, educatio

n o

r trainin

g yo

ur w

ard m

ay have

● W

hat so

rt of m

edical care d

ecisions yo

u m

ay make fo

r your w

ard

Th

ing

s Gu

ard

ian

s for P

erso

nal N

eed

s May N

ot D

o

Guard

ians are alw

ays limited

in w

hat th

ey are allow

ed to

do b

y the O

rder an

d

Judgm

ent. B

elow

are examples o

f thin

gs g

uard

ians m

ay n

ot d

o w

itho

ut co

urt

ap

pro

val.

● D

o an

ythin

g th

at is not stated

in th

e Ord

er and Ju

dgm

ent

● T

ake away an

y pow

ers or rig

hts fro

m th

e ward

that th

e judge h

as not

appro

ved b

eforeh

and

● M

ove th

e ward

to an

oth

er hom

e or a n

ursin

g h

om

e●

Sig

n th

e ward

into

a men

tal hyg

iene o

r substan

ce abuse facility o

r force

treatmen

t, inclu

din

g m

edicatio

n, o

n a w

ard w

ho refu

ses it●

Revo

ke a will, h

ealth care p

roxy, livin

g w

ill, pow

er of atto

rney, o

r oth

er co

ntract th

at the w

ard m

ade b

efore a G

uard

ian w

as appoin

ted●

Apply fo

r a divo

rce on b

ehalf o

f the w

ard●

Make en

d-o

f-life med

ical decisio

ns o

r refuse life-su

stainin

g treatm

ent u

nless

the ju

dge g

ave the G

uard

ian th

at pow

er

NO

TE: In

gen

eral, guard

ians w

ith m

edical d

ecision-m

aking p

ow

er have th

e right

to m

ake routin

e and so

me m

ajor h

ealth care d

ecisions fo

r their w

ards (su

ch as

agreein

g to

surg

ery) but a g

uard

ian’s p

ow

ers are limited

when

it com

es to en

d-o

f-life d

ecisions, excep

t for “D

o N

ot R

esuscitate O

rders”, also

called “D

NR O

rders”

that th

e patien

t’s docto

r may co

nsid

er in th

e patien

t’s best in

terest. Do N

ot

Resu

scitate Ord

ers are med

ical judgm

ents th

at the p

atient w

ould

not b

enefit fro

m

resuscitatio

n w

hen

his o

r her h

eart stops o

r when

he o

r she sto

ps b

reathin

g.

(Resu

scitation is u

sually co

nsid

ered n

ot to

be h

elpfu

l any lo

nger w

hen

the p

atient

is dyin

g.) Y

our O

rder an

d Ju

dgm

ent exp

lains w

hat yo

ur p

ow

ers are when

it com

es to

health

care decisio

ns.

http://ww



M

[34]

Guardian A

ssistance Netw

ork

C

an

I ask

the Ju

dg

e to

chan

ge th

e O

rder a

nd

Jud

gm

en

t?

Yes, if yo

u b

elieve that a ch

ange is n

eeded

and h

ave a good reaso

n, yo

u can

alw

ays ask the ju

dge fo

r a chan

ge. Fo

r instan

ce, if you th

ink th

at your w

ard m

ust

be m

oved

to an

oth

er residen

ce or facility, o

r need

s oth

er services and

interven

tions th

at are not listed

in th

e orig

inal O

rder an

d Ju

dgm

ent, yo

u sh

ould

discu

ss this w

ith yo

ur law

yer or yo

u m

ay write th

e judge yo

urself o

r call the

judge’s law

clerk. You sh

ould

explain

why yo

u are askin

g fo

r the ch

anges - th

e ju

dge m

ust ap

pro

ve them

befo

re you can

make th

e chan

ges.

State Ju

stice Institu

te G

uard

ian A

ssistance N

etwork | K

ings C

ounty S

uprem

e Court | 3

60 A

dam

s Street, R

oom

723 | B

rooklyn

, NY 1

1201

(347) 2

96-1

948 | G

AN

@co

urts.state.n

y.us

Copyrig

ht ©

2008

Vera In

stitute o

f Justice, In

c. A d

emonstratio

n p

roject o

f the V

era Institu

te of Ju

stice, Inc.

http://ww



M

[35]


Guardian A

ssistance Netw

ork

● W

hat Is a G

uard

ian?

● Fro

m C

ourt H

earing

to G

uard

iansh

ip

Com

misio

n●

The First 9

0 D

ays: Fro

m C

om

misio

n to

In

itial Rep

ort

● T

he G

uard

ian fo

r Perso

nal N

eeds

● T

he G

uard

ian fo

r Pro

perty M

anag

emen

t●

The In

itial & A

nnual

Rep

orts

● E

ndin

g a G

uard

iansh

ip

● E

spañ

ol

Th

e G

uard

ian

for P

rop

erty

Man

ag

em

en

t

If you are G

uard

ian fo

r Property M

anag

emen

t, you m

ust n

ow

start to m

anag

e the

inco

me an

d assets o

f your lo

ved o

ne. T

aking co

ntro

l of yo

ur w

ard’s p

roperty is

called “m

arshallin

g th

e assets.” In g

eneral, th

e rule ab

out m

anag

ing an

oth

er perso

n’s assets is to

be very carefu

l in h

ow

you sp

end o

r invest yo

ur w

ard’s m

oney.

New

ly appoin

ted G

uard

ians fo

r Property M

anag

emen

t have d

istinct resp

onsib

ilities th

at are differen

t from

Guard

ians fo

r Personal N

eeds. B

efore yo

u start w

orkin

g o

n

the vario

us tasks yo

u m

ight w

ant to

review th

e Ord

er and Ju

dgm

ent. T

his

docu

men

t is your g

uid

e.

NO

TE: W

hen

ever you d

o b

usin

ess for yo

ur w

ard, yo

u m

ust b

ring a certified

copy

of yo

ur O

rder an

d Ju

dgm

ent an

d C

om

missio

n w

ith yo

u to

pro

ve that yo

u are

auth

orized

by th

e court to

act on b

ehalf o

f your w

ard.

● T

hin

gs G

uard

ians fo

r Property M

anag

emen

t May N

ot D

o●

Guard

ians M

ust S

pen

d T

heir W

ard’s M

oney W

isely●

Detailed

Tasks o

f Guard

ians fo

r Property M

anag

emen

t

Th

ing

s Gu

ard

ian

s for P

rop

erty

Man

ag

em

en

t May N

ot D

o

Guard

ians fo

r Property M

anag

emen

t are limited

in w

hat th

ey are allow

ed to

do b

y th

e Ord

er and Ju

dgm

ent. B

elow

are examples o

f thin

gs g

uard

ians m

ay not d

o

with

out co

urt ap

pro

val:

● T

ake away an

y pow

ers or rig

hts fro

m yo

ur w

ard th

at the ju

dge h

as not

appro

ved b

eforeh

and

● S

ell your w

ard’s real estate o

r keep yo

ur w

ard’s real estate in

your o

wn

nam

e rather th

an in

your w

ard’s n

ame

● C

om

bin

e your o

wn m

oney w

ith th

at of yo

ur w

ard, even

if you h

ad a jo

int

ban

k account w

ith yo

ur w

ard b

efore th

e guard

iansh

ip

● U

se your w

ard’s fu

nds fo

r your o

wn p

urp

oses, o

r borro

w fro

m yo

ur w

ardhttp://w

ww

.nycourts.gov/ip/gan/manual/guardian4property.shtm

l (1 of 8)11/20/2011 9:24:37 AM

[36]

























Guardian A

ssistance Netw

ork

● M

ake investm

ents th

at are risky●

Hire p

rofessio

nals o

r special exp

erts, for exam

ple an

accountan

t to file

inco

me tax retu

rns, u

nless th

e judge h

as given

you p

ermissio

n to

do so

● R

evoke a w

ill, pow

er of atto

rney, o

r oth

er contract th

at your w

ard m

ade

befo

re you w

ere appoin

ted

NO

TE: If yo

u b

elieve that yo

u h

ave a good reaso

n to

do so

meth

ing th

at is not

listed in

the O

rder an

d Ju

dgm

ent, fo

r instan

ce, if you h

ave to m

anag

e substan

tial assets, yo

u m

ay wan

t to ask th

e court fo

r perm

ission to

hire an

investm

ent

bro

ker or o

ther fin

ancial m

anag

er to h

elp yo

u. Y

ou sh

ould

contact yo

ur law

yer if yo

u h

ave one an

d ask fo

r advice o

r ask the ju

dge’s law

clerk for g

uid

ance b

y exp

lainin

g w

hy yo

u b

elieve that th

e Ord

er should

be ch

anged

.

G

uard

ian

s Mu

st Sp

en

d T

heir W

ard

’s Mo

ney W

isely

G

uard

ians are su

pposed

to sp

end th

eir ward

s’ money w

isely and m

ake it last as lo

ng as p

ossib

le. With

out th

e judge’s p

rior ap

pro

val you sh

ould

be carefu

l about

buyin

g very exp

ensive item

s for yo

ur w

ard, even

if you th

ink th

at your w

ard h

as en

ough m

oney to

pay fo

r it or d

eserves it.

Exam

ples o

f such

majo

r expen

ses are:

● R

ebuild

ing yo

ur w

ard’s h

om

e to m

ake it wheelch

air accessible

● B

uyin

g a sp

ecial van to

transp

ort yo

ur w

ard

● T

rying so

me altern

ative med

ical treatmen

t for yo

ur w

ard th

at is not likely to

be co

vered b

y your w

ard’s m

edical in

suran

ce ●

Takin

g an

expen

sive vacation w

ith yo

ur w

ard

NO

TE: W

hen

you are th

inkin

g ab

out b

uyin

g so

meth

ing very exp

ensive yo

ur w

ard

need

s or co

uld

ben

efit from

, you sh

ould

get it ap

pro

ved ah

ead o

f time b

y the

judge. If yo

u d

on’t g

et prio

r appro

val, the co

urt exam

iner, w

ho review

s all rep

orts, m

ay not ap

pro

ve of th

e purch

ase of th

e item an

d d

eman

d th

at you p

ay th

is expen

se out o

f your o

wn fu

nds.

D

eta

iled

Task

s of G

uard

ian

s for P

rop

erty

Man

ag

em

en

t The au

thors are in

deb

ted to

Leona B

eane, E

sq. w

ho d

eveloped

the list o

f tasks describ

ed in

this sectio

n an

d g

ave perm

ission to

adap

t the list fo

r this m

anual.

Esta

blish

ing

a G

uard

ian

ship

Ch

eck

ing

Acco

un

t Id

entify all b

ank acco

unts o

wned

by yo

ur w

ard (ch

ecking, savin

gs,

money m

arket, etc.). Divid

e any jo

int acco

unts an

d sep

arate your

ward

’s share fro

m it. C

lose yo

ur w

ard’s acco

unts an

d o

pen

a http://w

ww

.nycourts.gov/ip/gan/manual/guardian4property.shtm

l (2 of 8)11/20/2011 9:24:37 AM

[37]

Guardian A

ssistance Netw

ork

guard

iansh

ip ch

ecking acco

unt w

ith yo

ur w

ard’s S

ocial S

ecurity

Num

ber o

n it an

d w

ith yo

ur n

ame as G

uard

ian in

the title.

Exam

ple

: The G

uard

iansh

ip A

ccount

Joe S

mith

becam

e the g

uard

ian fo

r his w

ife Jane, w

ho h

as Alzh

eimer’s

disease. A

lthough th

e couple alw

ays had

a join

t ban

k account, n

ow

th

at Joe h

as beco

me Jan

e’s guard

ian, h

e must o

pen

a separate b

ank

account fo

r his w

ife. This n

ew acco

unt h

as Jane’s so

cial security

num

ber o

n it b

ut th

e account is in

Joe’s n

ame as g

uard

ian fo

r an

incap

acitated p

erson. H

ere is how

the acco

unt is titled

: “Joe S

mith

as G

uard

ian

for Ja

ne S

mith

, an

Inca

pacita

ted

Perso

n”.

N

ote

: If your w

ard h

ad arran

ged

for d

irect dep

osit o

f inco

me ch

ecks (Social

Secu

rity, SSI, V

A ch

ecks, and p

ensio

ns) yo

u n

eed to

open

the G

uard

iansh

ip

Acco

unt first an

d th

en req

uest th

at the in

com

e checks b

e re-directed

from

the o

ld

account in

to th

e Guard

iansh

ip A

ccount. O

nce th

e checks are b

eing d

eposited

into

th

e new

account yo

u can

close th

e old

one.

Iden

tifyin

g S

ou

rces o

f Inco

me

Iden

tify all sources o

f your w

ard’s in

com

e: pen

sion b

enefits; ren

tal in

com

e from

tenan

ts; interest in

com

e from

investm

ents; S

ocial

Secu

rity Inco

me; S

upplem

ental S

ecurity In

com

e; veteran’s b

enefits.

Make a list, d

escribin

g each

source an

d th

e month

ly amount yo

ur w

ard

receives and arran

ge fo

r all inco

me to

be d

eposited

into

the

guard

iansh

ip acco

unt.

If any p

ublic b

enefit ch

ecks are missin

g, arran

ge fo

r the ch

ecks to b

e reissu

ed.

Iden

tifyin

g Y

ou

r Ward

’s Elig

ibility

for P

ub

lic Ben

efits

If your w

ard d

oes n

ot cu

rrently receive p

ublic b

enefits b

ut m

ay be

eligib

le, you m

ust ap

ply fo

r them

on b

ehalf o

f your w

ard.

Arra

ng

ing

for P

re-n

eed

Bu

rial E

xp

en

ses

If your w

ard receives S

upplem

ental S

ecurity In

com

e or M

edicaid

or if

you are ap

plyin

g fo

r these b

enefits o

r are engag

ed in

“Med

icaid

Plannin

g,” yo

u are p

ermitted

to o

pen

a separate G

uard

iansh

ip savin

gs

account w

ith n

o m

ore th

an $

1,5

00 as a sp

ecial burial acco

unt. T

his

account m

ay gen

erate interest an

d g

row

over tim

e but yo

u m

ay never

use it d

urin

g yo

ur w

ard’s lifetim

e – it is a set asid

e for yo

ur w

ard’s

futu

re funeral exp

enses. In

additio

n to

a separate b

urial savin

gs

account, yo

u also

may o

btain

an irrevo

cable b

urial tru

st, arrange fo

r a pre-p

aid fu

neral w

ith a fu

neral h

om

e, or p

urch

ase a cemetery p

lot.

You m

ay wan

t to d

iscuss th

is with

the ju

dge’s law

clerk befo

re you

make th

e decisio

n an

d sp

end yo

ur w

ard’s fu

nds.

http://ww


anual/guardian4property.shtml (3 of 8)11/20/2011 9:24:37 A

M

[38]

Guardian A

ssistance Netw

ork

NO

TE: M

edicaid

Plannin

g is th

e pro

cess of p

reparin

g to

apply fo

r Med

icaid w

ith

the assistan

ce of an

attorn

ey who is a sp

ecialist in M

edicaid

law. S

ee Spen

din

g

Dow

n Y

our W

ard’s A

ssets b

elow

.

Beco

min

g R

ep

rese

nta

tive P

ayee fo

r Go

vern

men

t Inco

me C

heck

s If yo

ur w

ard receives S

ocial S

ecurity b

enefits o

r Supplem

ental S

ecurity

Inco

me yo

u sh

ould

apply to

be ap

poin

ted R

epresen

tative Payee (for V

A

ben

efits the R

epresen

tative Payee is called “Fid

uciary”) an

d h

ave the

checks au

tom

atically dep

osited

into

the g

uard

iansh

ip acco

unt. If yo

ur

ward

lives in a n

ursin

g facility o

r a residen

ce for p

eople w

ith

disab

ilities, you m

ay prefer to

have th

e facility or resid

ence b

ecom

e Rep

resentative Payee. T

hat w

ay the n

ursin

g h

om

e will receive th

e m

oney an

d yo

u d

on’t h

ave to m

anag

e it and p

ay the n

ursin

g h

om

e each

month

.

Exam

ple: T

he N

ursin

g H

om

e as Rep

resentative Payee

Mary E

lkins an

d h

er disab

led b

roth

er John h

ave lived to

geth

er for

man

y years. Ever sin

ce she tu

rned

65, M

ary had

the S

ocial S

ecurity

Adm

inistratio

n d

eposit h

er Social S

ecurity ch

eck and Jo

hn’s S

SI ch

eck in

to a jo

int b

ank acco

unt. N

ow

that Jo

hn h

as been

placed

in a n

ursin

g

hom

e and M

ary has b

ecom

e John’s g

uard

ian, eith

er Mary o

r the

nursin

g h

om

e can ap

ply to

the S

ocial S

ecurity A

dm

inistratio

n to

beco

me Jo

hn’s R

epresen

tative Payee. If the n

ursin

g h

om

e beco

mes

the R

epresen

tative Payee the n

ursin

g h

om

e will u

se the m

oney fo

r Jo

hn’s m

onth

ly nursin

g h

om

e cost an

d w

ill then

apply fo

r additio

nal

Med

icaid co

verage. M

ary will o

nly g

ain access to

John’s M

edicaid

-ap

pro

ved p

ersonal allo

wan

ce to b

e used

for Jo

hn’s p

ersonal n

eeds.

This arran

gem

ent w

ill make m

anag

ing Jo

hn’s fu

nds very easy fo

r Mary.

Payin

g B

ills You m

ust assess yo

ur w

ard’s m

onth

ly expen

ses and arran

ge to

have

these m

et. Inclu

de p

aymen

ts for ren

t, food, clo

thin

g, p

et care, housekeep

ing an

d p

ersonal care p

rovid

ers, social activities, ed

ucatio

nal

pro

gram

s, med

ical expen

ses, and care o

f dep

enden

ts (if ord

ered b

y th

e judge). R

equest th

at all recurrin

g b

ills (such

as those fo

r utilities

and ren

t) be re-d

irected to

you so

that th

ey can b

e paid

in a tim

ely fash

ion. Id

entify n

on-recu

rring b

ills and arran

ge fo

r paym

ent.

Exam

ples o

f non-recu

rring b

ills are docto

r’s bills, p

ayroll taxes an

d

related exp

enses fo

r househ

old

emplo

yees. You m

ay set up a lo

cal acco

unt w

ith a g

rocery sto

re or arran

ge fo

r petty cash

for h

om

ecare w

orkers to

make yo

ur life a little easier. If yo

ur w

ard is ab

le to m

anag

e a sm

all amount o

f money yo

u m

ay arrange fo

r weekly sp

endin

g m

oney

so th

at he o

r she still h

as som

e indep

enden

ce.

http://ww



M

[39]

Guardian A

ssistance Netw

ork

NO

TE: Y

ou sh

ould

always p

ay by ch

eck rather th

an cash

since it is extrem

ely difficu

lt to acco

unt fo

r cash p

aymen

ts when

you w

rite your rep

orts to

the ju

dge.

If you n

eed to

pay b

y money o

rder, w

rite dow

n o

n th

e receipt w

hat th

e paym

ent

was fo

r. And, if yo

u m

ust p

ay with

cash ask th

at the recip

ient sig

n a receip

t for

you.

Payin

g O

utsta

nd

ing

Deb

ts Id

entify all cu

rrent d

ebt an

d arran

ge fo

r paym

ent. In

clude co

urt

ord

ered p

aymen

ts to vario

us p

rofessio

nals w

ho w

ere invo

lved in

the

guard

iansh

ip p

rocess. C

heck yo

ur O

rder an

d Ju

dgm

ent fo

r the n

ames

of th

e peo

ple w

ho m

ust b

e paid

and th

e amount o

f their fees.

If your w

ard receives S

ocial S

ecurity b

enefits o

r Supplem

ental S

ecurity

Inco

me an

d h

as no fin

ancial assets, yo

ur first o

blig

ation is to

ensu

re th

at your w

ard’s m

onth

ly expen

ses are covered

, such

as for sh

elter, fo

od an

d clo

thin

g. G

uard

ians sh

ould

advise all cred

itors th

at their

ward

s are not cap

able o

f payin

g th

eir outstan

din

g d

ebt b

y sendin

g th

e cred

itor a letter exp

lainin

g th

e ward

’s situatio

n an

d th

e fact that yo

u

are now

Guard

ian an

d R

epresen

tative Payee for yo

ur w

ard. C

lick here

for a a sam

ple letter to

credito

rs.

NO

TE: C

redito

rs can u

sually g

ain access to

your w

ard’s in

com

e befo

re you can

. H

ow

ever, credito

rs can

no

t gain

access to yo

ur w

ard’s g

overn

men

t inco

me

checks. Fu

rtherm

ore, if yo

ur w

ard h

ad received

an “o

verpaym

ent” fro

m S

ocial

Secu

rity or S

SI, an

d m

ust p

ay the o

verpaid

amount b

ack to th

e Social S

ecurity

Adm

inistratio

n yo

u sh

ould

neg

otiate a m

onth

ly paym

ent th

at is as small as

possib

le so th

at you can

pay yo

ur w

ard’s o

rdin

ary month

ly expen

ses with

out to

o

much

hard

ship

.

Arra

ng

ing

Fo

r Yo

ur W

ard

’s Mail to

Be R

e-D

irecte

d T

o Y

ou

Perso

nal m

ail can ju

st be fo

rward

ed to

you b

ut o

fficial mail like b

ills an

d o

ther statem

ents sh

ould

be ad

dressed

to yo

u “as g

uard

ian fo

r [yo

ur w

ard’s n

ame]”, sim

ilar to th

e title on th

e guard

iansh

ip acco

unt.

Fin

din

g B

an

k A

ccou

nts w

ith H

elp

from

the IR

S

Exam

ple

: Lookin

g fo

r Ban

k Acco

unts

Rudi Jo

hnso

n received

his C

om

missio

n to

act as guard

ian fo

r his U

ncle

Jacob a w

eek ago. S

ince h

is uncle alw

ays was secretive ab

out h

is fin

ances R

udi h

as no id

ea how

much

money h

is uncle h

as and w

here

his b

ank acco

unts are lo

cated, b

ut h

e wan

ts to b

e sure th

at his u

ncle’s

funds are safe fro

m p

eople w

ho h

ave abused

Uncle Jaco

b in

the p

ast. The first th

ing R

udi m

ust d

o is to

find U

ncle Jaco

b’s b

ank acco

unts an

d

close th

em so

that U

ncle Jaco

b an

d th

e peo

ple w

ho to

ok ad

vantag

e of

him

, no lo

nger h

ave access to th

e money.

http://ww



M

[40]

http://www.nycourts.gov/ip/gan/sample_forms/sample_letter_to_creditors.doc

http://www.nycourts.gov/ip/gan/sample_forms/sample_letter_to_creditors.doc

Guardian A

ssistance Netw

ork

One o

f the m

ost d

ifficult tasks g

uard

ians u

sually face is to

find all th

e assets an

d so

urces o

f inco

me o

f their w

ard. A

good so

urce o

f help

for

guard

ians is th

e Inte

rnal R

even

ue S

erv

ice, w

hich

regularly receives

info

rmatio

n o

n all tax p

ayers who o

wn b

ank acco

unts o

r who h

ave in

com

e from

wag

es, pen

sions, o

r investm

ents. If yo

u th

ink yo

ur w

ard

may h

ave ban

k accounts yo

u can

not fin

d, yo

u m

ay fill out IR

S Fo

rm

4506T (R

equest fo

r Tran

script o

f a Tax R

eturn

). Check item

#8 o

n th

e Fo

rm. A

fter about tw

o m

onth

s the IR

S w

ill send yo

u a rep

ort o

n all

ban

ks and o

ther fin

ancial in

stitutio

ns th

at have su

bm

itted fin

ancial

info

rmatio

n to

the IR

S o

n acco

unts o

wned

by yo

ur w

ard. T

here are

also p

rivate agen

cies that w

ill do th

is faster for a fee.

N

OTE: IR

S fo

rms are availab

le thro

ugh its w

ebsite: w

ww

.irs.gov, o

r by callin

g

1-8

00-8

29-3

676. W

hen

ever you m

ail a letter or fo

rm to

the IR

S yo

u sh

ould

attach

a copy o

f your certified

Guard

iansh

ip C

om

missio

n an

d sig

n yo

ur letter o

r fo

rm as “G

uard

ian”.

Lo

catin

g O

ther U

ncla

imed

Pro

perty

In

additio

n to

searchin

g fo

r your w

ard’s active b

ank acco

unts, yo

u m

ay w

ant to

search fo

r oth

er unclaim

ed p

roperty th

at is ow

ned

by yo

ur

ward

, such

as unclaim

ed tax refu

nds, in

suran

ce reimbursem

ent, an

d

neg

lected b

ank acco

unts. In

New

York S

tate you m

ay try ww

w.o

sc.state.n

y.us. Fo

r pro

perty in

oth

er states you m

ay try the w

ebsite o

f th

e Natio

nal A

ssociatio

n o

f Unclaim

ed Pro

perty A

dm

inistrato

rs, ww

w.

nau

pa.o

rg.

Lo

okin

g F

or S

afe

Dep

osit B

oxes

Check w

ith th

e ban

k to fin

d o

ut if yo

ur w

ard h

ad a safe d

eposit b

ox

and arran

ge w

ith th

e ban

k to m

ake an in

vento

ry of its co

nten

ts. If the

safe dep

osit b

ox is jo

intly h

eld w

ith so

meo

ne else, sep

arate your

ward

’s valuab

les from

those o

f the o

ther p

erson an

d ren

t a separate

box fo

r your w

ard.

NO

TE: Y

ou sh

ould

check yo

ur O

rder an

d Ju

dgm

ent to

see if the ju

dge o

rdered

yo

u to

check th

e conten

ts of a safe d

eposit b

ox. If it is n

ot in

the o

rigin

al Ord

er yo

u m

ay need

a special co

urt o

rder to

gain

access to th

e safe dep

osit b

ox.

Lo

catin

g In

sura

nce

Po

licies

Iden

tify all insu

rance p

olicies; m

ake a list and in

clude th

e nam

e of th

e co

mpan

y and th

e policy n

um

ber. Po

licies may in

clude h

ouseh

old

, valu

able item

s, liability, life, fire, au

to, lo

ng term

care, and m

edical

insu

rance. N

otify th

e com

pan

ies of yo

ur g

uard

iansh

ip ap

poin

tmen

t an

d req

uest th

at all corresp

onden

ce be re-d

irected to

you.

Iden

tifyin

g A

ll Investm

en

ts Id

entify all sto

cks, bonds, m

utu

al funds, an

d in

vestmen

t accounts yo

ur

http://ww



M

[41]

http://www.irs.gov/

http://www.osc.state.ny.us/

http://www.osc.state.ny.us/

http://www.naupa.org/

http://www.naupa.org/

Guardian A

ssistance Netw

ork

ward

may h

ave establish

ed in

the p

ast. Make a list o

f each w

ith th

e nam

e of th

e security, p

olicy n

um

ber, an

d cu

rrent valu

e. Notify all

com

pan

ies of yo

ur g

uard

iansh

ip ap

poin

tmen

t (send th

em a co

py o

f yo

ur C

ertified C

om

missio

n) an

d req

uest th

at all corresp

onden

ce be re-

directed

to yo

u. If yo

ur w

ard’s assets are co

mplicated

, request

perm

ission fro

m th

e judge to

hire an

investm

ent b

roker o

r accountan

t to

man

age yo

ur w

ard’s assets.

If stock certificates can

not b

e located

, arrange fo

r an in

dem

nity b

ond.

Iden

tifyin

g V

alu

ab

le P

erso

nal Ite

ms

Iden

tify all valuab

le pro

perty at yo

ur w

ard’s h

om

e: inclu

de jew

elry, art, fin

e rugs, co

ins, stam

p co

llections, silverw

are, and cash

. You

should

have th

e items ap

praised

for th

eir estimated

value an

d if th

ey are n

ot in

sured

, you sh

ould

insu

re them

. Make su

re that yo

u m

ake a list o

f all of th

e items.

Lo

okin

g F

or V

alu

ab

le D

ocu

men

ts Search

for im

portan

t docu

men

ts among yo

ur w

ard’s p

apers. Lo

ok fo

r a w

ill, a health

care pro

xy, a living w

ill, a pow

er of atto

rney an

d

anyth

ing else yo

u th

ink m

ay be im

portan

t. Put th

ese docu

men

ts in a

safe place.

Lo

catin

g R

eal P

rop

erty

Id

entify an

y real estate ow

ned

by yo

ur w

ard an

d file a “S

tatemen

t Id

entifyin

g R

eal Property” w

ith th

e Pro

perty

Reco

rdin

g O

ffice o

f the

cou

nty

wh

ere

the p

rop

erty

is loca

ted

. These d

ocu

men

ts must b

e sig

ned

by yo

u in

front o

f a Notary Pu

blic. R

eal pro

perty m

ust b

e kept

in yo

ur w

ard’s n

ame. If yo

ur w

ard o

wns a co

-op ap

artmen

t you m

ust

notify th

e Co-o

p B

oard

of yo

ur ap

poin

tmen

t and ask to

have an

y mail

re-directed

to yo

u. ( C

lick here fo

r a sample o

f a Statem

ent Id

entifyin

g

Real Pro

perty.)

NO

TE: If yo

u w

ish to

sell the p

roperty yo

u m

ust first g

et perm

ission fro

m th

e ju

dge. B

efore yo

u sell th

e pro

perty th

e judge m

ay wan

t it to b

e appraised

by an

ap

praiser w

ho is listed

on a co

urt ap

pro

ved list an

d th

e judge w

ill establish

the fee

for th

e appraiser.

Filin

g T

ax R

etu

rns

File federal, state an

d lo

cal tax return

s befo

re April 1

5th

of each

year. If yo

u can

not file yo

ur w

ard’s taxes o

n tim

e you m

ay file for a six

month

s extensio

n, u

sing IR

S Fo

rm 4

868, called

an A

pplicatio

n fo

r Auto

matic E

xtensio

n o

f Tim

e. Tax retu

rns m

ust b

e filed in

your w

ard’s

nam

e and so

cial security n

um

ber, b

ut th

ey must b

e signed

by yo

u as

“Gu

ard

ian

for [n

am

e o

f yo

ur w

ard

], an

inca

pacita

ted

perso

n.”

You sh

ould

attach a co

py o

f your certified

Com

missio

n to

the tax

return

s you file fo

r your w

ard. If yo

ur w

ard m

issed filin

g tax retu

rns in

previo

us years th

e IRS w

ill notify yo

u an

d d

eman

d th

at these b

e filed

http://ww



M

[42]

http://www.nycourts.gov/ip/gan/sample_forms/sample_Statement_Identifying_Real_Property.doc

http://www.nycourts.gov/ip/gan/sample_forms/sample_Statement_Identifying_Real_Property.doc

Guardian A

ssistance Netw

ork

as soon as p

ossib

le. Req

uest th

at the IR

S w

aive pen

alties for late filin

g

and sen

d th

e IRS a co

py o

f your C

ertified C

om

missio

n to

show

that

your w

ard is an

incap

acitated p

erson an

d w

as incap

able o

f filing taxes

previo

usly.

NO

TE: If yo

u n

eed h

elp w

ith yo

ur w

ard’s taxes yo

u sh

ould

ask perm

ission fro

m

the ju

dge to

hire an

accountan

t. If the ju

dge ap

pro

ves your req

uest, th

e judge

will set th

e accountan

t’s fee which

then

can b

e paid

out o

f your w

ard’s assets.

Sp

en

din

g D

ow

n Y

ou

r Ward

’s Asse

ts As yo

u are sp

endin

g yo

ur w

ard’s assets o

n h

is or h

er care you m

ust

make a p

lan fo

r your w

ard’s fu

ture fin

ancial n

eeds. T

his m

ay require

you to

engag

e in M

edicaid

plan

nin

g if yo

ur w

ard’s assets are clo

se to

bein

g d

epleted

. You sh

ould

discu

ss Med

icaid p

lannin

g w

ith an

eld

er

law

atto

rney fam

iliar with

Med

icaid. M

edicaid

is an im

portan

t med

ical in

suran

ce pro

gram

that co

vers extensive h

om

e care and n

ursin

g h

om

e care fo

r New

Yorkers w

ho h

ave dep

leted th

eir assets and h

ave beco

me

indig

ent. ( C

lick here fo

r more in

form

ation o

n M

edicaid

.)

State Ju

stice Institu

te G

uard

ian A

ssistance N

etwork | K

ings C

ounty S

uprem

e Court | 3

60 A

dam

s Street, R

oom

723 | B

rooklyn

, NY 1

1201

(347) 2

96-1

948 | G

AN

@co

urts.state.n

y.us

Copyrig

ht ©

2008

Vera In

stitute o

f Justice, In

c. A d

emonstratio

n p

roject o

f the V

era Institu

te of Ju

stice, Inc.

http://ww



M

[43]

http://www.nycourts.gov/ip/gan/resources/medicaid.shtml


Guardian A

ssistance Netw

ork

● W

hat Is a G

uard

ian?

● Fro

m C

ourt H

earing

to G

uard

iansh

ip

Com

misio

n●

The First 9

0 D

ays: Fro

m C

om

misio

n to

In

itial Rep

ort

● T

he G

uard

ian fo

r Perso

nal N

eeds

● T

he G

uard

ian fo

r Pro

perty M

anag

emen

t●

The In

itial & A

nnual

Rep

orts

● E

ndin

g a G

uard

iansh

ip

● E

spañ

ol

Th

e In

itial &

An

nu

al R

ep

orts

All g

uard

ians m

ust reg

ularly rep

ort to

the co

urt. T

hese rep

orts g

ive the co

urt

info

rmatio

n ab

out yo

ur w

ard an

d h

ow

well yo

u are takin

g care o

f your w

ard’s

affairs, what yo

ur p

lans are fo

r your w

ard, h

ow

much

money yo

ur w

ard h

as, and

anyth

ing else th

at gives th

e judge a g

ood sen

se that yo

ur w

ard is w

ell cared fo

r. The rep

orts m

ust b

e written

in a co

urt ap

pro

ved fo

rm. C

opies o

f form

s are located

in

Reso

urces an

d ad

ditio

nal co

pies can

be o

btain

ed fro

m th

e Guard

iansh

ip Part o

r th

e Court C

lerk in yo

ur co

urth

ouse.

● T

he In

itial R

ep

ort is th

e first report yo

u m

ust w

rite 90 d

ays after you

received yo

ur C

om

missio

n. T

his rep

ort is m

eant to

be a p

icture o

r “sn

apsh

ot” o

f your w

ard’s situ

ation at th

e beg

innin

g o

f the g

uard

iansh

ip.

(Click h

ere for a sam

ple an

Initial R

eport.)

● T

he A

nn

ual R

ep

ort, so

metim

es called th

e “Annual A

ccountin

g” is alw

ays due in

May an

d co

vers the p

revious calen

dar year fro

m Jan

uary 1

thro

ugh

Decem

ber 3

1. T

he p

eriod b

etween

the In

itial Rep

ort an

d th

e Annual R

eport

is the tim

e in w

hich

you co

ntin

ue to

care for yo

ur w

ard acco

rdin

g to

the

judge’s o

rders an

d th

e plan

s you o

utlin

ed in

your In

itial Rep

ort. (C

lick here

for a sam

ple o

f an A

nnual R

eport.)

● W

hat In

form

ation M

ust B

e Inclu

ded

In T

he R

eports?

● A

sking Fo

r Reim

bursem

ent o

f Your “O

ut-O

f-Pocket” E

xpen

ses●

Askin

g fo

r Chan

ges in

the G

uard

ian’s Po

wer

❍ C

an G

uard

ians A

sk For C

han

ges at A

ny O

ther T

ime?

❍ W

ho S

hould

Receive M

y Initial o

r Annual R

eports?

❍ W

hat h

appen

s to th

e Rep

orts after I file th

em?

● T

he In

itial Rep

ort

http://ww


anual/initial_annual_reports.shtml (1 of 8)11/20/2011 9:25:10 A

M

[44]
















http://www.nycourts.gov/ip/gan/sample_forms/sample_Initial_Report.doc

http://www.nycourts.gov/ip/gan/sample_forms/sample_Guardian.doc

http://www.nycourts.gov/ip/gan/sample_forms/sample_Guardian.doc











Guardian A

ssistance Netw

ork

● T

he A

nnual R

eport

Wh

at In

form

atio

n M

ust B

e In

clud

ed

In T

he R

ep

orts?

The ju

dge w

ill wan

t to kn

ow

that yo

ur w

ard is in

good h

ands an

d th

at you are

doin

g everyth

ing fo

r your w

ard th

e way th

e judge h

ad o

rdered

. When

you p

repare

to w

rite your rep

orts, yo

u sh

ould

first re-read th

e Ord

er and Ju

dgm

ent so

that yo

u

know

exactly what th

e judge h

as given

you th

e pow

er to d

o an

d th

en start fillin

g in

th

e sections listed

in th

e report fo

rms. (T

his is th

e time w

here yo

u w

ill find th

at yo

u w

ill greatly b

enefit fro

m h

aving m

ade p

ersonal n

otes an

d h

aving kep

t receipts

and all statem

ents, in

voices an

d b

ills.)

NO

TE: M

ost g

uard

ians fin

d th

at som

e sections o

f the rep

ort fo

rms are n

ot

relevant in

their p

articular w

ard’s case. If yo

u d

on’t fill o

ut a sectio

n b

ecause it

does n

ot ap

ply, yo

u sh

ould

write in

that sectio

n th

e word

s: NO

T A

PPLICABLE

. N

ever le

ave a

sectio

n in

the fo

rm b

lan

k.

Ask

ing

Fo

r Reim

bu

rsem

en

t of Y

ou

r “Ou

t-Of-P

ock

et” E

xp

en

ses

In yo

ur rep

orts yo

u m

ay ask for reim

bursem

ent o

f expen

ses you h

ave paid

out o

f yo

ur o

wn fu

nds o

n b

ehalf o

f your w

ard. B

elow

are som

e examples o

f expen

ses for

which

you m

ay be reim

bursed

, bu

t yo

u ca

n o

nly

get re

imb

urse

d if y

ou

kep

t th

e re

ceip

ts an

d if y

ou

r ward

has a

ssets.

● Lo

st wag

es while yo

u w

ere taking care o

f your w

ard’s affairs

● T

he fee yo

u p

aid to

attend th

e required

guard

iansh

ip train

ing

● T

axi fares, gas, m

ileage, o

r parkin

g fo

r your car to

take your w

ard to

the

docto

r or an

y oth

er appoin

tmen

t●

The co

st to p

hoto

copy p

apers an

d h

ave them

certified

● T

he co

st of o

btain

ing a b

ond, if th

e judge o

rdered

you to

get o

ne

● A

ny p

aymen

ts you h

ave mad

e from

your o

wn fu

nds to

buy su

pplies an

d

services for yo

ur w

ard fo

r which

you h

ave saved th

e receipts

Ask

ing

for C

han

ges in

the G

uard

ian

’s Po

wer

The tim

e to ask fo

r a chan

ge in

the O

rder an

d Ju

dgm

ent is w

hen

you su

bm

it your

Initial o

r Annual R

eport. C

han

ges m

ay be n

eeded

in th

e Ord

er and Ju

dgm

ent o

ver tim

e for an

y num

ber o

f reasons. Fo

r instan

ce a perso

n, w

ho w

as hurt in

an

acciden

t may reco

ver and b

e able to

do m

ore th

ings fo

r him

or h

erself. In th

at case th

e Guard

ian’s p

ow

ers could

beco

me less o

ver time. O

n th

e oth

er han

d,

som

e ward

s beco

me m

ore frail o

ver time an

d m

ay be less ab

le to m

anag

e som

e of

their affairs - in

that case, th

e Ord

er may b

e chan

ged

to g

ive the g

uard

ian

additio

nal p

ow

ers that are n

eeded

.

http://ww



M

[45]

Guardian A

ssistance Netw

ork

If you h

ave good reaso

ns to

ask the ju

dge fo

r a chan

ge in

your p

ow

ers and yo

u

have a law

yer you sh

ould

ask him

or h

er to w

rite a request to

the ju

dge g

iving all

the reaso

ns w

hy yo

u th

ink th

e chan

ge in

the O

rder an

d Ju

dgm

ent is n

eeded

. But

family g

uard

ians w

ithout a law

yer may w

rite the ju

dge th

emselves to

ask for a

chan

ge in

their p

ow

ers. Befo

re you w

rite the ju

dge yo

u m

ay wan

t to call th

e ju

dge’s law

clerk and exp

lain w

hat it is yo

u w

ould

like to d

o –

law clerks can

be

very help

ful to

you sin

ce they w

ork clo

sely with

the ju

dge an

d assist th

e judge w

ith

all legal q

uestio

ns an

d issu

es. If you d

on’t h

ave good reaso

ns fo

r the ch

anges yo

u

request, o

r if the ju

dge d

isagrees w

ith yo

u b

ecause h

e or sh

e feels that yo

ur p

lan

is not in

the b

est interest o

f your w

ard, th

e judge w

ill not ap

pro

ve them

.

Exam

ple

: The Ju

dge’s refu

sal to ch

ange th

e Ord

er and Ju

dgm

ent

Three years ag

o D

onald

was ap

poin

ted g

uard

ian fo

r Personal N

eeds

and Pro

perty M

anag

emen

t for h

is moth

er, Millie, w

ho lives in

her o

wn

apartm

ent in

Bro

oklyn

. Millie is d

oin

g very w

ell, especially n

ow

that

she h

as a hom

e attendan

t three tim

es per w

eek. Tw

o years ag

o

Donald

moved

with

his n

ew w

ife to Lo

ng Islan

d. H

e now

wan

ts to

move M

illie to an

assisted livin

g resid

ence n

ear his h

om

e. Havin

g

Millie n

earby w

ill make it m

uch

easier for D

onald

and h

is wife to

su

pervise h

om

e care aids an

d to

visit his m

oth

er frequen

tly. Donald

has asked

for a ch

ange in

the O

rder an

d Ju

dgm

ent, p

ermittin

g h

im to

m

ove M

illie to Lo

ng Islan

d. B

ut th

ere is a big

pro

blem

: since M

illie is very h

appy in

her ap

artmen

t in w

hich

she h

as lived fo

r man

y years and

becau

se she likes th

e hom

e attendan

t, she d

oes n

ot w

ant to

move.

Becau

se the law

requires th

at ward

s must b

e consu

lted ab

out w

here

they w

ant to

live, the ju

dge d

ecides th

at Millie sh

ould

not b

e moved

an

d d

enies D

onald

’s request to

chan

ge th

e Ord

er and Ju

dgm

ent.

Can

Gu

ard

ian

s Ask

Fo

r Ch

an

ges a

t An

y O

ther T

ime?

Yes, m

ost ju

dges w

ill perm

it guard

ians w

ho h

ave an em

ergen

cy to

write a letter exp

lainin

g w

hy th

e Ord

er need

s to b

e chan

ged

and

asking fo

r the ju

dge’s ap

pro

val befo

re the rep

orts are d

ue. B

efore yo

u

write th

e judge yo

u sh

ould

call the ju

dge’s law

clerk and ask h

im o

r her fo

r guid

ance.

Exam

ple

: Chan

gin

g th

e Ord

er and Ju

dgm

ent in

an

Em

ergen

cy

John is h

is moth

er June’s g

uard

ian fo

r Personal N

eeds. H

is m

oth

er still lives in h

er ow

n ap

artmen

t but sh

e has

advan

ced can

cer in ad

ditio

n to

her d

emen

tia. June’s

docto

r has ad

vised Jo

hn th

at his m

oth

er must b

e placed

in

a nursin

g h

om

e to receive care fro

m n

urses an

d o

ther

specialists an

d h

ave access to m

edicin

es to co

ntro

l her

pain

. The ju

dge’s O

rder an

d Ju

dgm

ent d

oes n

ot g

ive John

http://ww



M

[46]

Guardian A

ssistance Netw

ork

the p

ow

er to p

lace his m

oth

er in a n

ursin

g h

om

e. H

ow

ever, John d

oes n

ot h

ave to w

ait until th

e time h

e has

to su

bm

it his A

nnual R

eport. Jo

hn can

write th

e judge a

letter asking th

at the ju

dge ch

ange th

e Ord

er now

so th

at Ju

ne can

be ad

mitted

to th

e nursin

g h

om

e imm

ediately.

Wh

o S

ho

uld

Rece

ive M

y In

itial o

r An

nu

al R

ep

orts?

O

nce yo

u h

ave finish

ed w

riting eith

er one o

f the rep

orts yo

u m

ust sig

n

it in th

e presen

ce of a N

otary Pu

blic. T

he n

otarized

copy m

ust b

e filed

with

the o

ffice of th

e county clerk. Y

ou sh

ould

either h

and d

eliver the

orig

inal rep

ort to

the co

unty clerk o

r mail it b

y certified m

ail, return

receip

t requested

. You sh

ould

also m

ail a photo

copy o

f the rep

ort to

:

● T

he co

urt exam

iner w

ho h

as been

assigned

to yo

ur w

ard’s case.

The co

urt exam

iner’s n

ame is u

sually lo

cated in

the O

rder an

d

Judgm

ent, b

ut if it is n

ot yo

u can

contact th

e county clerk’s

office to

find o

ut w

ho th

e court exam

iner is fo

r your w

ard’s case.

● Y

our w

ard, u

nless th

e judge o

rdered

you n

ot to

do so

in th

e O

rder an

d Ju

dgm

ent.

● T

he co

urt evalu

ator w

ho rep

orted

to th

e court d

urin

g th

e hearin

g

(Initial R

eport o

nly).

● A

ny atto

rney w

ho rep

resented

your w

ard at th

e hearin

g (In

itial Rep

ort o

nly).

● T

he b

ond co

mpan

y, if you w

ere required

to g

et a bond (A

nnual

Rep

ort o

nly).

● If yo

ur w

ard lives in

a hom

e for p

eople w

ith d

isabilities, o

r an

oth

er similar typ

e of resid

ence, yo

u m

ust sen

d a co

py o

f the

report to

the ad

min

istrator o

f the resid

ence.

● If yo

ur w

ard lives in

a men

tal health

facility, you m

ust sen

d a

copy o

f the rep

ort to

the D

irector o

f Men

tal Hyg

iene Leg

al Services.

In B

roo

kly

n, Q

ueen

s an

d S

tate

n Isla

nd th

is perso

n is:

Sid

ney H

irschfeld

, Directo

r Seco

nd Ju

dicial D

epartm

ent, M

ental H

ygien

e Legal S

ervices 170 O

ld C

ountry R

oad

M

ineo

la, NY 1

1501

In M

an

hatta

n a

nd

the B

ron

x th

is perso

n is:

Marvin

Bern

stein, D

irector

First Judicial D

epartm

ent, M

ental H

ygien

e Legal S

ervices 60 M

adiso

n A

venue, 2

nd Flo

or

New

York, N

Y 1

0010

http://ww



M

[47]

Guardian A

ssistance Netw

ork

Wh

at h

ap

pen

s to th

e R

ep

orts a

fter I file

them

?

All rep

orts are review

ed b

y the co

urt exam

iner w

ho m

ust m

ake sure

that th

e reports p

resent in

form

ation o

n all th

e tasks that w

ere listed in

th

e orig

inal O

rder an

d Ju

dgm

ent an

d th

at the acco

untin

g o

f how

you

spen

t your w

ard’s fu

nds is accu

rate and accep

table. Y

ou m

ay be asked

to

chan

ge th

e report if th

e court exam

iner b

elieves that ch

anges are

need

ed. T

he co

urt exam

iner m

ay also call yo

u an

d ask yo

u q

uestio

ns

by p

hone o

r ask you to

com

e to h

is or h

er office. A

fter the co

urt

examin

er has ap

pro

ved yo

ur rep

ort h

e or sh

e will sen

d a su

mm

ary to

the ju

dge.

Th

e In

itial R

ep

ort

The In

itial Rep

ort is also

called th

e “90-d

ay Rep

ort” sin

ce it must b

e subm

itted 9

0

days after th

e day th

at you received

your C

om

missio

n.

All G

uard

ian

s Mu

st Inclu

de T

he F

ollo

win

g In

form

atio

n In

Th

e

Initia

l Rep

ort:

● W

hat typ

e of g

uard

ian yo

u are—

for p

ersonal n

eeds, p

roperty m

anag

emen

t, or b

oth

● W

heth

er you h

ave com

pleted

a guard

iansh

ip train

ing p

rogram

(you m

ust

attach a co

py o

f the certificate o

f attendan

ce to yo

ur rep

ort)

● Y

our w

ard’s ag

e and w

here yo

ur w

ard lives

● T

he n

ame o

f the facility o

r residen

ce where yo

ur w

ard lives, if yo

ur w

ard

does n

ot live at h

om

e ●

How

often

you h

ave visited yo

ur w

ard d

urin

g th

ese first 90 d

ays—yo

u m

ust

have visited

at least once

● A

list of im

portan

t docu

men

ts you h

ave found th

at your w

ard sig

ned

in th

e past, su

ch as p

ow

er of atto

rney, a w

ill, a health

care pro

xy, or a livin

g w

ill●

What p

lans yo

u h

ave to take care o

f your w

ard in

the im

med

iate futu

re●

Wheth

er there h

ave been

chan

ges in

your w

ard’s situ

ation sin

ce the h

earing

Gu

ard

ian

s for P

erso

nal N

eed

s Mu

st Pro

vid

e th

e F

ollo

win

g

Info

rmatio

n:

● T

he n

ames an

d ad

dresses o

f your w

ard’s p

ersonal d

octo

r and p

sychiatrist o

r psych

olo

gist

● T

he d

octo

rs’ diag

nosis

● A

list of o

ther p

rofessio

nals o

r service agen

cies that p

rovid

e services to yo

ur

ward

(hom

e care agen

cies, meals o

n w

heels, so

cial services). You sh

ould

list

http://ww



M

[48]

Guardian A

ssistance Netw

ork

each o

ne w

ith an

address an

d p

hone n

um

ber

● A

list of d

ay care pro

gram

s your w

ard atten

ds reg

ularly w

ith th

eir nam

es and

phone n

um

bers

● A

list of m

edicatio

ns yo

ur w

ard is cu

rrently takin

g

Gu

ard

ian

s for P

rop

erty

Man

ag

em

en

t Mu

st Pro

vid

e D

eta

iled

Fin

an

cial In

form

atio

n o

n:

● B

ank acco

unts yo

ur w

ard o

wned

at the tim

e of yo

ur ap

poin

tmen

t as guard

ian

(inclu

de th

e nam

e of th

e ban

k, the acco

unt n

um

ber an

d th

e amount o

f m

oney in

each acco

unt)

● W

heth

er you h

ave open

ed a G

uard

iansh

ip A

ccount

● A

list of sto

cks, bonds, o

ther secu

rities that yo

u h

ave found, an

d w

heth

er yo

u h

ave chan

ged

the title o

f the acco

unts to

your n

ame as g

uard

ian●

A list o

f any o

ther fu

nds yo

u h

ave found, w

here th

ey were lo

cated, w

hat

their valu

e is, and w

hat yo

u h

ave done w

ith th

ese funds

● A

list of o

ther p

ersonal p

roperty—

such

as a car, furn

iture, jew

elry, and

artwork—

with

a descrip

tion, th

eir locatio

n, an

d th

eir value

● A

list of real p

roperty yo

ur w

ard o

wns in

cludin

g th

e locatio

n, th

e type o

f pro

perty it is, an

d its valu

e●

A list o

f the so

urces o

f your w

ard’s m

onth

ly inco

me, in

cludin

g th

e source an

d

the am

ount each

month

● A

list of o

ther in

com

e, such

as interest o

r divid

ends

● A

list of an

y deb

ts or u

npaid

bills, in

cludin

g w

ho n

eeds to

be p

aid an

d h

ow

m

uch

● A

ny p

ublic b

enefits yo

u h

ave applied

for

● W

heth

er you h

ave applied

for in

suran

ce on b

ehalf o

f your w

ard●

Your w

ard’s in

suran

ce policies (m

edical, lo

ngterm

care, hom

eow

ner’s, au

to,

valuab

le items, art w

ork, life in

suran

ce)●

Wheth

er your w

ard h

as a safe dep

osit b

ox, in

cludin

g th

e nam

e of th

e ban

k, th

e address, an

d w

heth

er or n

ot yo

u h

ave been

able to

see its conten

ts and

determ

ine th

eir value

NO

TE: W

hen

you su

bm

it your rep

ort yo

u sh

ould

attach all receip

ts, invo

ices and

ban

k statemen

ts so th

at the co

urt exam

iner can

easily review h

ow

you h

ave sp

ent yo

ur w

ard’s m

oney.

Th

e A

nn

ual R

ep

ort

NO

TE: T

he A

nnual R

eport is alw

ays due in

May an

d co

vers the p

revious calen

dar

year (January 1

thro

ugh D

ecember 3

1). O

f course, fo

r your very first A

nnual

Rep

ort yo

u are o

nly exp

ected to

pro

vide in

form

ation co

vering th

e perio

d startin

g

with

the d

ate you received

your C

om

missio

n th

rough D

ecember 3

1.

http://ww



M

[49]

Guardian A

ssistance Netw

ork

All G

uard

ian

s Mu

st Pro

vid

e T

he F

ollo

win

g In

form

atio

n In

Th

e

An

nu

al R

ep

ort:

● T

he d

ates (at least four a year) yo

u h

ave visited yo

ur w

ard an

d w

here yo

u

saw yo

ur w

ard.

● A

ny b

ig ch

anges yo

u h

ave observed

in yo

ur w

ard’s situ

ation o

r conditio

n

since th

e last report.

● W

hen

your w

ard last saw

a docto

r. Inclu

de th

e reason fo

r the visit an

d th

e docto

r’s diag

nosis an

d treatm

ent p

lan (if th

ere is one).

● A

report o

n th

e conditio

n o

f the w

ard fro

m a p

rofessio

nal (d

octo

r, psych

olo

gist, n

urse clin

ician, o

r social w

orker) w

ho h

as examin

ed o

r evalu

ated th

e ward

in th

e three m

onth

s prio

r (Febru

ary, March

, or A

pril) to

th

e subm

ission o

f the A

nnual R

eport.

● Facts o

n w

hich

any ch

ange in

your p

ow

ers mig

ht b

e based

, inclu

din

g en

din

g

of th

e guard

iansh

ip.

Gu

ard

ian

s for P

erso

nal N

eed

s Mu

st Also

Inclu

de:

● A

list of m

edical treatm

ents yo

ur w

ard received

since th

e last report.

● Y

our p

lan to

take care of yo

ur w

ard’s m

edical, d

ental, an

d m

ental h

ealth

need

s for th

e next year.

● In

form

ation ab

out th

e social co

nditio

n o

f your w

ard, in

cludin

g w

hat so

cial an

d p

ersonal assistan

ce he o

r she h

as received an

d w

hat yo

ur w

ard’s so

cial skills an

d so

cial need

s are.

Gu

ard

ian

s for P

rop

erty

Man

ag

em

en

t Mu

st Inclu

de:

● A

copy o

f the fed

eral, state, and lo

cal tax return

s you filed

for yo

ur w

ard

befo

re April 1

5 o

f the sam

e year.●

A d

etailed acco

untin

g o

f all inco

me received

and all exp

enses p

aid.

● W

heth

er your w

ard w

as emplo

yed o

r wheth

er he o

r she h

as earned

wag

es th

at you h

ave received o

n b

ehalf o

f your w

ard (th

is applies u

sually to

peo

ple

with

disab

ilities who are em

plo

yed in

supervised

job situ

ations).

● A

request fo

r reimbursem

ent fo

r out-o

f-pocket exp

enses yo

u h

ave had

while

taking care o

f our w

ard’s affairs.

● A

request fo

r your co

mpen

sation o

r fee, also called

“com

missio

n”, if th

e ju

dge h

ad o

rdered

it in yo

ur O

rder an

d Ju

dgm

ent (yo

u are n

ot o

blig

ated to

get p

aymen

t but yo

u m

ay accept it if th

e judge h

ad o

rdered

it).

N

OTE: W

hen

you w

rite your A

nnual R

eport yo

u sh

ould

make su

re that th

e am

ounts ad

d u

p p

roperly so

that th

e court exam

iners w

ill not fin

d fau

lt with

your

report. Y

ou sh

ould

attach an

y vouch

ers, ban

k statemen

ts, and an

y oth

er docu

men

ts that yo

u can

pro

vide to

show

pro

of o

f the in

form

ation yo

u h

ave pro

vided

.

http://ww



M

[50]

Guardian A

ssistance Netw

ork

State Ju

stice Institu

te G

uard

ian A

ssistance N

etwork | K

ings C

ounty S

uprem

e Court | 3

60 A

dam

s Street, R

oom

723 | B

rooklyn

, NY 1

1201

(347) 2

96-1

948 | G

AN

@co

urts.state.n

y.us

Copyrig

ht ©

2008

Vera In

stitute o

f Justice, In

c. A d

emonstratio

n p

roject o

f the V

era Institu

te of Ju

stice, Inc.

http://ww



M

[51]


Guardian A

ssistance Netw

ork

● W

hat Is a G

uard

ian?

● Fro

m C

ourt H

earing

to G

uard

iansh

ip

Com

misio

n●

The First 9

0 D

ays: Fro

m C

om

misio

n to

In

itial Rep

ort

● T

he G

uard

ian fo

r Perso

nal N

eeds

● T

he G

uard

ian fo

r Pro

perty M

anag

emen

t●

The In

itial & A

nnual

Rep

orts

● E

ndin

g a G

uard

iansh

ip

● E

spañ

ol

En

din

g a

Gu

ard

ian

All G

uard

ians even

tually m

ust co

me to

an en

d. O

f course, th

ere are several reaso

ns w

hy G

uard

ians m

ust en

d. E

xamples are:

● T

he w

ard h

as died

● T

he w

ard n

o lo

nger n

eeds a g

uard

ian●

The g

uard

ian h

as a perso

nal reaso

n (fo

r example, is m

ovin

g to

anoth

er state) o

r is no lo

nger ab

le to p

erform

all the d

uties th

at are required

●

The ju

dge w

ants to

end th

e Guard

ian b

ecause h

e or sh

e is dissatisfied

with

th

e guard

ian

NO

TE: W

hatever th

e reason is fo

r endin

g th

e Guard

ian, y

ou

may n

ot ju

st stop

o

n y

ou

r ow

n. In

ord

er to fo

rmally en

d yo

ur resp

onsib

ilities you m

ust ask th

e ju

dge to

disch

arge yo

u an

d ask fo

r perm

ission to

subm

it a “final acco

untin

g”.

If your w

ard h

as died

you m

ust sen

d th

e judge a co

py o

f the D

eath C

ertificate. You

must also

info

rm all o

ther relevan

t parties su

ch as: th

e Social S

ecurity

Adm

inistratio

n o

r the V

eterans A

dm

inistratio

n, yo

ur w

ard’s p

ensio

n p

lan, M

edicaid

if yo

ur w

ard w

as receiving M

edicaid

ben

efits, the execu

tor o

f your w

ard’s estate o

r th

e Public A

dm

inistrato

r, if your w

ard d

id n

ot h

ave a will, an

d o

f course n

ext of

kin. A

ll parties sh

ould

be sen

t a copy o

f your w

ard’s D

eath C

ertificate.

If you w

ere your w

ard’s G

uard

ian

for P

rop

erty

Man

ag

em

en

t your o

blig

ation to

m

anag

e your w

ard’s fu

nds is n

ow

greatly red

uced

- from

now

on yo

u are o

nly

allow

ed to

pay so

me o

utstan

din

g b

ills for services ren

dered

while yo

ur w

ard w

as still alive (fo

r instan

ce hom

ecare expen

ses), the an

nual p

remiu

m fo

r the b

ond

which

remain

s in effect u

ntil yo

u are o

fficially disch

arged

, and yo

ur w

ards fu

neral

bills. A

ll oth

er finan

cial man

agem

ent tasks m

ust b

e turn

ed o

ver to th

e executo

r of

your w

ard’s estate o

r to th

e Public A

dm

inistrato

r, if you w

ard d

id n

ot h

ave a will.

Th

e F

inal A

ccou

ntin

g

Guard

ians fo

r Property M

anag

emen

t must file a rep

ort w

hich

is called a Fin

al http://w

ww

.nycourts.gov/ip/gan/manual/ending_guardianship.shtm

l (1 of 2)11/20/2011 9:26:23 AM

[52]

























Guardian A

ssistance Netw

ork

Acco

untin

g w

hich

has to

cover fin

ancial in

form

ation co

vering th

e perio

d b

etween

th

e end d

ate of yo

ur last A

nnual R

eport an

d th

e date o

f your w

ard’s d

eath. Y

ou

should

inclu

de a req

uest fo

r any reim

bursem

ent o

r paym

ent th

at is still outstan

din

g. C

lick here to

view sam

ple o

f a Final A

ccountin

g fo

rm.

Wh

o sh

ou

ld re

ceiv

e a

cop

y o

f the F

inal A

ccou

ntin

g?

The o

rigin

al Final A

ccountin

g R

eport is filed

with

the co

unty clerk an

d

copies o

f it must b

e subm

itted to

:

❍ T

he co

urt exam

iner

❍ E

very one th

at received yo

ur A

nnual R

eports

❍ T

he execu

tor o

r adm

inistrato

r of yo

ur w

ard’s estate

❍ T

he O

ffice of Leg

al Affairs o

f the H

um

an R

esources A

dm

inistratio

n if

your w

ard received

Med

icaid services

After th

e court exam

iner h

as evaluated

and ap

pro

ved th

e Final

Acco

untin

g, th

e judge w

ill issue an

Ord

er disch

argin

g yo

u as g

uard

ian.

The ju

dge w

ill also d

ecide w

ho w

ill be p

aid fro

m an

y funds th

at remain

in

your w

ard’s estate.

NO

TE: T

he b

ond w

ill not b

e termin

ated u

ntil after th

e Final A

ccountin

g h

as been

filed

and th

e court exam

iner h

as appro

ved it. O

nce th

e judge h

as issued

an O

rder

disch

argin

g yo

u as g

uard

ian, yo

u m

ay send th

e bondin

g ag

ency a co

py o

f the

judge’s O

rder an

d ask th

at the b

ond b

e termin

ated.

State Ju

stice Institu

te G

uard

ian A

ssistance N

etwork | K

ings C

ounty S

uprem

e Court | 3

60 A

dam

s Street, R

oom

723 | B

rooklyn

, NY 1

1201

(347) 2

96-1

948 | G

AN

@co

urts.state.n

y.us

Copyrig

ht ©

2008

Vera In

stitute o

f Justice, In

c. A d

emonstratio

n p

roject o

f the V

era Institu

te of Ju

stice, Inc.

http://ww


anual/ending_guardianship.shtml (2 of 2)11/20/2011 9:26:23 A

M

[53]

http://www.nycourts.gov/ip/gan/sample_forms/sample_Final_Accounting.doc


Guardian A

ssistance Netw

ork

● E

spañ

ol

● List o

f Offices

● B

ondin

g A

gen

cies●

Med

ical Term

inolo

gy

& A

bbreviatio

ns

● C

aring fo

r Men

tally/ Ph

ysically Disab

led●

Med

icare●

Med

icaid in

NYS

● D

irectory fo

r G

uard

ians

● M

ental Illn

ess/Assisted

Outp

atient

Treatm

ent

● G

lossary

Dire

ctory

for G

uard

ian

s

● S

ervices for Peo

ple o

ver the A

ge O

f 60

● O

rgan

izations fo

r Specific D

iseases & C

onditio

ns

● S

ervices for Peo

ple w

ith M

ental R

etardatio

n an

d D

evelopm

ental D

isabilities

● S

ervices for Peo

ple w

ith M

ental D

isabilities

Serv

ices fo

r Peo

ple

over th

e A

ge O

f 60

New

Yo

rk S

tate

Office

for th

e A

gin

g

Hot Lin

e: (800) 3

42-9

871 o

r (518) 4

74-5

731

ww

w.ag

ing.n

y.gov

agin

g@

agin

g.state.n

y.us

New

Yo

rk C

ity D

ep

artm

en

t for th

e A

gin

g

Help

line: (2

12) 4

12-1

000 (E

nglish

and S

pan

ish) O

R

Dial 3

11 an

d ask fo

r social services sp

ecialist for th

e agin

g.

ww

w.n

yc.gov/h

tml/d

fta and click o

n “B

enefit Q

uick C

heck”

New

Yo

rk S

tate

Health

Reso

urce

s w

ww

.nyseg

ov.co

m an

d click o

n “ag

ing”

New

Yo

rk S

tate

Health

Insu

ran

ce In

form

atio

n, C

ou

nse

ling

an

d A

ssistan

ce P

rog

ram

(N

YS

HIIC

AP

) For co

unselin

g o

n M

edicare an

d o

ther h

ealth in

suran

ce pro

gram

s Toll-free H

otlin

e: (800) 7

01-0

501

ww

w.ag

ing.n

y.gov/H

ealthBen

efits/HIIC

APIn

dex.cfm

Med

icare

Rig

hts C

en

ter

For h

elp w

ith M

edicare p

roblem

s Ph

one: (2

12) 8

69-3

850

ww

w.m

edicarerig

hts.o

rg

New

Yo

rk S

tate

Med

icaid

Toll-free H

elplin

e: (800) 5

41-2

831

http

://ww

w.h

ealth.state.n

y.us/h

ealth_care/m

edicaid

/

http://ww

w.nycourts.gov/ip/gan/resources/directory4guardians.shtm

l (1 of 5)11/20/2011 9:27:07 AM

[54]









http://www.nycourts.gov/ip/gan/resources/list_offices.shtml

http://www.nycourts.gov/ip/gan/resources/bonding_agencies.shtml

http://www.nycourts.gov/ip/gan/resources/medical_terminology.shtml

http://www.nycourts.gov/ip/gan/resources/medical_terminology.shtml

http://www.nycourts.gov/ip/gan/resources/caring4mentally.shtml

http://www.nycourts.gov/ip/gan/resources/caring4mentally.shtml

http://www.nycourts.gov/ip/gan/resources/medicare.shtml

http://www.nycourts.gov/ip/gan/resources/medicaid.shtml

http://www.nycourts.gov/ip/gan/resources/mental_illness.shtml



http://www.nycourts.gov/ip/gan/resources/glossary.shtml



http://www.aging.ny.gov/


http://www.nyc.gov/html/dfta

http://www.nysegov.com/

http://www.aging.ny.gov/HealthBenefits/HIICAPIndex.cfm

http://www.medicarerights.org/

http://www.health.state.ny.us/health_care/medicaid/











Guardian A

ssistance Netw

ork

New

Yo

rk S

tate

Lo

ng

Term

Care

Om

bu

dsm

an

Fo

r help

on p

roblem

s related to

nursin

g h

om

e care and services

From

with

in N

ew Y

ork S

tate: 1-8

00-3

42-9

871

From

outsid

e New

York S

tate: 518-4

74-7

329

ww

w.ltco

mbudsm

an.n

y.gov/

Frie

nd

s an

d R

ela

tives o

f the In

stitutio

nalize

d A

ged

Fo

r info

rmatio

n o

n n

ursin

g h

om

es or co

ncern

s about a w

ard’s care in

a nursin

g h

om

e H

elplin

e: (212) 7

32-4

455 T

uesd

ays-Fridays 1

0AM

—5PM

in

fo@

fria.org

or w

ww

.fria.org

Un

ited

Way o

f New

Yo

rk C

ity

To fin

d ad

dresses o

f various so

cial service agen

cies Ph

one: (2

12) 2

51-2

500

ww

w.u

nited

wayn

yc.org

Click o

n A

GIN

G in

“target g

roups” an

d fill in

your w

ard’s zip

code to

find

services near yo

ur w

ard’s h

om

e. N

atio

nal A

ssocia

tion

of G

eria

tric Care

Man

ag

ers, G

reate

r New

Yo

rk C

hap

ter

To fin

d so

cial workers in

private p

ractice who assist o

lder p

ersons an

d th

eir families

ww

w.n

ygcm

.org

Natio

nal F

am

ily C

are

giv

ers O

rgan

izatio

n

Toll Free: 1

-800-8

96-3

650

ww

w.n

fcacares.org

Natio

nal A

cad

em

y o

f Eld

er L

aw

Atto

rneys (N

AELA

) Fo

r the n

ames o

f attorn

eys who sp

ecialize in eld

er law an

d M

edicaid

Plannin

g

ww

w.n

aela.com

Click o

n “lo

cate and eld

er law atto

rney”

Org

an

izatio

ns

for S

pecific D

isease

s an

d C

on

ditio

ns

Natio

nal A

lzheim

er’s A

ssocia

tion

Toll-free 2

4-h

our H

elplin

e: (800) 2

72-3

900

http

://ww

w.alz.o

rg o

r Info

@alz.o

rg

En E

spañ

ol: w

ww

.alz.org

/espan

ol_

recurso

s_para_

los_

latinos.asp

New

Yo

rk C

ity C

hap

ter A

lzheim

er’s A

ssocia

tion

24-h

our H

elplin

e: (800) 2

72-3

900

Http

://ww

w.alzn

yc.org

Un

ited

Cere

bra

l Palsy

Toll-free: (8

00) 4

48-3

827

Http

://ww

w.u

cp.o

rg o

r web

master@

ucp

.org

Un

ited

Cere

bra

l Palsy

of N

ew

Yo

rk C

ity

Phone: (2

12) 9

79-9

700, E

xt. 720

http

://ww

w.u

cpnyc.o

rg

New

Yo

rk S

tate

Dep

t. of H

ealth

HIV

/A

IDS

http://ww


l (2 of 5)11/20/2011 9:27:07 AM

[55]

http://www.ltcombudsman.ny.gov/


http://www.fria.org/

http://www.unitedwaynyc.org/

http://www.nygcm.org/

http://www.nfcacares.org/

http://www.naela.com/

http://www.alz.org/


http://www.alz.org/espanol_recursos_para_los_latinos.asp

http://www.alznyc.org/

http://www.ucp.org/


http://www.ucpnyc.org/

Guardian A

ssistance Netw

ork

Toll-free C

onfid

ential H

otlin

e: (800) 5

41-A

IDS

http

://ww

w.h

ealth.state.n

y.us/d

iseases/aids

New

Yo

rk C

ity A

IDS

Ho

tline

Phone: (2

12) 4

47-8

200, E

xt. 4

Gay M

en

’s Health

Crisis (G

MH

C) –

Help

for m

en an

d w

om

en

Toll-free C

onfid

ential H

otlin

e (800) A

IDS-N

YC o

r (212) 8

07-6

655

http

://ww

w.g

mhc.o

rg o

r Hotlin

e@gm

hc.o

rg (th

ere is a two-w

eek response tim

e) En E

spañ

ol: h

ttp://w

ww

.gm

hc.o

rg/en

-espan

ol

Bra

in In

jury

Asso

ciatio

n o

f New

Yo

rk S

tate

Toll-free Fam

ily Help

line: (8

00) 2

28-8

201

http

://ww

w.b

ianys.o

rg

Natio

nal M

ultip

le S

clero

sis So

ciety

Toll-free: (8

00) 3

44-4

867

http

://ww

w.n

ationalm

ssociety.o

rg

En E

spañ

ol: h

ttp://w

ww

.natio

nalm

ssociety.o

rg/in

form

acion-en

-espan

ol/in

dex.asp

x

MS

So

ciety

New

Yo

rk C

ity C

hap

ter

Phone: (2

12) 4

63-7

787

http

://ww

w.m

snyc.o

rg o

r info

@m

snyc.o

rg/

Park

inso

n’s D

isease

Fo

un

datio

n

Toll-free: (8

00) 4

57-6

676

http

://ww

w.p

df.o

rg

Am

erica

n S

troke A

ssocia

tion

Toll-free: (8

00) 4

-STRO

KE o

r (888) 4

78-7

653

http

://ww

w.stro

keassociatio

n.o

rg

http

://local.stro

keassociatio

n.o

rg (to

find lo

cal chap

ters)

Am

erica

n C

ou

ncil o

n A

lcoh

olism

Toll-free: (8

00) 5

27-5

344

http

://ww

w.aca-u

sa.org

Serv

ices fo

r Peo

ple

with

Men

tal R

eta

rdatio

n a

nd

Develo

pm

en

tal D

isab

ilities

New

Yo

rk S

tate

Office

of M

en

tal R

eta

rdatio

n a

nd

Develo

pm

en

tal D

isab

ilities (O

MR

DD

) Fo

r info

rmatio

n o

n services fo

r the m

entally retard

ed o

r those w

ith d

evelopm

ental d

isabilities.

New

York C

ity Reg

ional O

ffice phone: (2

12) 2

29-3

231

Alb

any (statew

ide) p

hone: (5

18) 4

73-9

689 o

r TD

D: (5

18) 4

74-3

694

http

://ww

w.o

mr.state.n

y.us/ (C

lick on “”In

form

ation fo

r Individ

uals an

d Fam

ilies,” “Gen

eral In

form

ation an

d Pu

blicatio

ns,” an

d “M

ap an

d R

esource D

irectory”).

New

Yo

rk S

tate

Co

mm

ission

on

Qu

ality

of C

are

http://ww


l (3 of 5)11/20/2011 9:27:07 AM

[56]

http://www.health.state.ny.us/diseases/aids

http://www.gmhc.org/


http://www.gmhc.org/en-espanol

http://www.bianys.org/

http://www.nationalmssociety.org/

http://www.nationalmssociety.org/informacion-en-espanol/index.aspx

http://www.msnyc.org/

mailto:[email protected]/

http://www.pdf.org/

http://www.strokeassociation.org/

http://local.strokeassociation.org/

http://www.aca-usa.org/

http://www.omr.state.ny.us/

Guardian A

ssistance Netw

ork

Toll-free p

hone: (8

99) 6

24-4

143 (V

oice/T

TY/S

pan

ish)

ww

w.cq

capd.state.n

y.us

New

Yo

rk S

tate

Office

of A

dvo

cacy

for P

eo

ple

with

Disa

bilitie

s Toll-free p

hone: (8

00) 5

22-4

369 (V

oice/T

TY/S

pan

ish)

ww

w.o

apw

d.o

rg

N

ew

Yo

rk S

tate

Asso

ciatio

n fo

r Reta

rded

Ch

ildre

n (N

YS

AR

C)

Phone: (5

18) 4

39-8

311

http

://ww

w.n

ysarc.org

/ (click on “o

ur ch

apters” fo

r local o

ffices) or in

fo@

nysarc.o

rg

Asso

ciatio

n fo

r the H

elp

of R

eta

rded

Ch

ildre

n

New

Yo

rk C

ity (A

HR

C-N

YC

) Ph

one: (2

12) 7

80-2

599

http

://ww

w.ah

rcnyc.o

rg/ (click o

n lin

ks for m

any reso

urces, N

YC an

d b

eyond)

web

master@

ahrcn

yc.org

N

atio

nal In

stitute

for P

eo

ple

with

Disa

bilitie

s – Y

AI

YAI Lin

k Services: (2

12) 2

73-6

182

http

://ww

w.yai.o

rg/

Serv

ices fo

r Peo

ple

with

Men

tal D

isab

ilities

New

Yo

rk S

tate

Office

of M

en

tal H

ealth

(OM

H)

44 H

ollan

d A

venue, A

lban

y, New

York 1

2229

Toll-free p

hone: (8

00) 5

97-8

481 (leave n

ame, p

hone n

um

ber, an

d q

uestio

n)

http

://ww

w.o

mh.state.n

y.us/

NY

S A

ssistan

ce fo

r Ou

tpatie

nt T

reatm

en

t an

d F

acility

Co

nta

cts O

MH

Custo

mer S

ervice: (800) 5

97-8

481

http

://ww

w.o

mh.state.n

y.us/o

mhw

eb/K

endra_

web

/aot_

directo

ry_gl.h

tml

NY

S C

on

fere

nce

of L

oca

l Men

tal H

yg

ien

e D

irecto

rs – to

find lo

cal directo

rs 99 Pin

e Street, A

lban

y, NY 1

2207

Phone: (5

18) 4

62-9

422

http

://ww

w.clm

hd.o

rg/ab

out/co

untyd

irectory.asp

x

Men

tal H

yg

ien

e L

eg

al S

erv

ice

Man

hattan

and B

ronx: (2

12) 7

79-1

734

Bro

oklyn

, Staten

Island, Q

ueen

s, and Lo

ng Islan

d: (5

16) 7

46-4

545

New

Yo

rk S

tate

Co

mm

ission

on

Qu

ality

of C

are

an

d A

dvo

cacy

for P

eo

ple

with

Disa

bilitie

s Toll-free p

hone: (8

00) 6

24-4

143 (V

oice/T

TY/S

pan

ish)

ww

w.cq

capd.state.n

y.us

Office

for P

rote

ction

an

d A

dvo

cacy

for In

div

idu

als w

ith M

en

tal

Illness

Toll-free p

hone: (8

00) 6

24-4

143 o

r Alb

any N

um

ber: (5

18) 3

88-2

892

http://ww


l (4 of 5)11/20/2011 9:27:07 AM

[57]

http://www.cqcapd.state.ny.us/

http://www.oapwd.org/

http://www.nysarc.org/


http://www.ahrcnyc.org/


http://www.yai.org/

http://www.omh.state.ny.us/

http://www.omh.state.ny.us/omhweb/Kendra_web/aot_directory_gl.html

http://www.clmhd.org/about/countydirectory.aspx

http://www.cqcapd.state.ny.us/

Guardian A

ssistance Netw

ork

Office

of A

dvo

cacy

for P

eo

ple

with

Disa

bilitie

s Toll-free p

hone: (8

00) 5

22-4

369 (V

oice/T

TY/S

pan

ish)

ww

w.o

apw

d.o

rg

Co

alitio

n o

f Beh

avio

ral H

ealth

Ag

en

cies

Phone in

New

York C

ity: (212) 7

42-1

600

http

://ww

w.co

alitionny.o

rg/ o

r Use E

mail Fo

rm

Natio

nal A

llian

ce o

n M

en

tal Illn

ess (N

AM

I) Fam

ily Help

line: (8

00) 9

50-3

228 (N

ew Y

ork S

tate only)

New

York S

tate Chap

ter http

://ww

w.n

amin

ys.org

/ H

elplin

e: (212) 6

84-3

264 (N

ew Y

ork C

ity Metro

Chap

ter) (N

oon to

7PM

Monday th

rough T

hursd

ay and n

oon to

6PM

on Frid

ay) http

://ww

w.n

ami-n

yc-metro

.org

/ or h

elplin

e@nam

inyc.o

rg

State Ju

stice Institu

te G

uard

ian A

ssistance N

etwork | K

ings C

ounty S

uprem

e Court | 3

60 A

dam

s Street, R

oom

723 | B

rooklyn

, NY 1

1201

(347) 2

96-1

948 | G

AN

@co

urts.state.n

y.us

http://ww


l (5 of 5)11/20/2011 9:27:07 AM

[58]

http://www.oapwd.org/

http://www.coalitionny.org/

http://www.coalitionny.org/contact_us/send_an_email.php

http://www.naminys.org/

http://www.nami-nyc-metro.org/



New York County Supreme Court

http://www.nycourts.gov/supctmanh/county_clerk_operations.htm

http://www.nycourts.gov/supctmanh/Guardianship_Cases.htm

http://www.nycourts.gov/supctmanh/Guardianship_Cases%20Forms%20List.htm

[59]

New York County - Civil Branch Guardianship Cases

ADMINISTRATIVE ORDER -- GUARDIANSHIP PROCEEDINGS (December 4, 2008)

OVERVIEW OF GUARDIANSHIP PROCEEDINGS

(Explaining Key Features of these Cases, Duties of Guardians, Key Terms, etc.)

OUTLINE OF FILING AND OTHER COURT PROCEDURES IN GUARDIANSHIP CASES

(Explaining How Papers Are Filed and Processed in Court)

OUTLINE OF COURT RULES ON FIDUCIARY

APPOINTMENTS AND THE FIDUCIARY CLERK (Explaining Court Rules Governing Guardianship and Other Fiduciary Appointments and the Role of the Fiduciary Clerk)

A MESSAGE FROM THE FIDUCIARY CLERK

FORMS FOR GUARDIANSHIP CASES

LIST OF TRAINING PROGRAMS FOR GUARDIANS

[ Court Offices and Functions ] [ Summary of Courthouse Procedures ] [ Justices ] [ Rules of Justices ] [ County Clerk ] [ E-Filing ] [ Public Access & Courthouse Technology ] [ ADR Programs ] [ Appellate Term ]

Page 2 of 2Untitled Document

11/20/2011http://www.nycourts.gov/supctmanh/Guardianship_Cases.htm

[60]

[61]

[62]

[63]

[64]

[65]

[66]

[67]

[68]

[69]

[70]

[71]

[72]

[73]

[74]

Untitled Document

http://www.nycourts.gov/supctmanh/Guardianship_Cases%20Forms%20List.htm (1 of 2)11/20/2011 9:35:25 AM

New York County - Civil Branch Guardianship Cases - Forms

[Home]

ORDER AND JUDGMENT APPOINTING GUARDIAN

GUARDIAN’S INITIAL (90-DAY) REPORT

AND INSTRUCTIONS (The First Report Required to be Filed

by the Guardian followed by Instructions on How to Complete It)

ANNUAL REPORT OF THE GUARDIAN

FORMS FOR PROCEEDING FOR AN ORDER

RELEASING AND DISCHARGING GUARDIAN -

ON CONSENT

Petition

Order Waiving Filing of Formal Account

Order Discharging Guardian and Surety

Consent to Informal Account

FINAL REPORT

Order to Show Cause to Settle a Final Report

Final Report (Sample)

Order Settling and Approving a Final Report

Affidavit in Support of Discharge of Guardian and Cancellation of Bond

Order Discharging Guardian and Surety

[ Court Offices and Functions ] [ Summary of Courthouse Procedures ] [ Justices ] [ Rules of Justices ] [ County Clerk ] [ E-Filing ] [ Public Access & Courthouse Technology ] [ ADR Programs ] [ Appellate Term ]

[75]

http://www.nycourts.gov/supctmanh/index.htm

http://www.nycourts.gov/supctmanh/GShip%20Forms/O&J%20Appt%20Gdn.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/O&J%20Appt%20Gdn.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/GInitial%20Report-7.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/GInitial%20Report-7.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/AnnRep-8.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/Petition-9.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/Ord%20Waiving%20F-10.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/Ord%20Dischg%20G-11.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/Consent%20Informal-12.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/OSC%20Final%20Rep-14.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/OSC%20Final%20Rep-14.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/Sample%20Final-15.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/Ord%20Approving%20Final-16.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/Affid%20Discharge-17.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/Affid%20Discharge-17.pdf

http://www.nycourts.gov/supctmanh/GShip%20Forms/Ord%20Discharg-18.pdf

http://www.nycourts.gov/supctmanh/Court_Offices_and_Functions.htm

http://www.nycourts.gov/supctmanh/summary.htm

http://www.nycourts.gov/supctmanh/justices.htm

http://www.nycourts.gov/supctmanh/uniform_rules.htm

http://www.nycourts.gov/supctmanh/county_clerk_operations.htm

http://www.nycourts.gov/supctmanh/E-Filing.htm

http://www.nycourts.gov/supctmanh/technology.htm

http://www.nycourts.gov/supctmanh/ADR_Programs.htm

http://www.nycourts.gov/supctmanh/appellate_term.htm

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - IAS Part No. IN THE MATTER OF THE APPLICATION OF

, Index No.

Petitioner,

FOR THE APPOINTMENT OF A GUARDIAN FOR

, INITIAL REPORTOF GUARDIAN

An Alleged Incapacitated Person,- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

, the Guardian in this proceeding, submits this Initial Reportof Guardian pursuant to Mental Hygiene Law § 81.30 and states as follows:

1. I reside at . My telephone number is . I was appointed guardian of the person [or property or person and property] of [THE INCAPACITATED PERSON] by Order and Judgment of the Honorable , Justice of the Supreme Court of the State of New York, dated . I received my commission on .

2. I am not related to the incapacitated person [or I am the incapacitated person’s [NAME RELATIONSHIP]]. The incapacitated person’s date of birth is . I shall separately provide to the court’s Guardianship and Fiduciary Support Office (60 CentreStreet, Room 148) the incapacitated person’s social security number.

3. I attended the guardianship training course at on [DATE] [ or I did not attend the guardianship training course because ]. I have attached a copy of the certificate evidencing my completionof the course.

4. The incapacitated person is currently living at the following address:

. I visited him [ her ] there on the following days:

.

[76]

2

5. The incapacitated person’s primary diagnosis is [Set forth the diagnosis of the IP's medicalcondition]

.

This statement is based upon [e.g., Doctor’s report]

.

6. If the incapacitated person lives in an apartment or a house, list here the name and relationshipof all other persons living with the incapacitated person:

.

7. If the incapacitated person has home care services, describe the services here and state thenumber of hours a day each such service is provided:

.

[77]

3

8. The incapacitated person has a [ check all that apply ]:

G Will G Living Will G Health Care Proxy G Power of Attorney

If you are uncertain as to whether any one of these documents exists, please explain:

.

As to each of the documents listed below, please indicate by marking "Yes," "No," or "NA" [for NotApplicable] whether you have located the document, provided a copy, or filed same with theSurrogate's Court:

Determined Location Provided Copy Filed with Surr. Ct.

Will

Living Will

Health Care Proxy

Power of Attorney

Other

Guardians of the Person Answer the Following Questions:

9. I have taken the following steps to ensure that the Incapacitated person has adequate medical,dental, mental health or other health care services [ PLEASE DESCRIBE ] :

[78]

4

.

10. The plan to ensure that the incapacitated person has adequate medical, dental, mental health orother health care services in the future is as follows [ PLEASE DESCRIBE ]:

.

11. I have taken the following steps to ensure that the incapacitated person has adequate social andpersonal services (for example, day care and recreation) [ PLEASE DESCRIBE ]:

.

12. I have applied for the following health and accident insurance and government benefits onbehalf of the incapacitated person [ PLEASE DESCRIBE ]:

[79]

5

.

13. There is no need to modify my powers as personal needs guardian [ or the following changesare necessary in my personal needs powers ] [ PLEASE DESCRIBE]]:

.

Guardians of the Property of the Incapacitated Person Fill In the Following Information

14. I have marshaled the following assets of the incapacitated person:

A.(1) Bank Accounts [list the name of the bank, account numbers and amount of money inthe account before you closed the account and transferred the money to a guardianship account] :

Bank Account Number Amount

[80]

6

(2) Guardianship Bank Accounts [list the name of the bank, account numbers and theamount of money currently in the guardianship bank accounts]:

Bank Account Number Amount

B. Safe Deposit Box [ if the incapacitated person has a safe deposit box, list the name andaddress of the bank at which it is located] .

Have you inventoried the contents of the safe deposit box? GYes GNo. If yes, attach a listof the contents and the appraisal or the approximate value of the contents.

C. Stocks and Securities [ if the incapacitated person owns stocks or other securities, list here

[81]

7

the name of the company, number of shares, the market value of each security on the date youreceived your commission, and the broker ] :

Company Name Number of Shares Market Value Brokerage

Company Name Type of Bonds etc. Market Value Brokerage

D. Real Estate [ list the address of the property, give a description of the property [i.e. store,single family house], approximate value of the property on the date you were commissioned, andname of tenants and rental income, if any. Also, write down the date you filed a statement

[82]

8

identifying real property with the County Clerk. ] :

Address Description Approx. Value Tenants Rental StatementIncome

E. Personal Property [ list any jewelry, antiques, paintings, automobiles, or other valuableproperty or cash and set forth the approximate value ] :

Property Type Appraised Value Approx. Value

[83]

9

F. Income [ set forth here all sources of income for the incapacitated person, i.e. socialsecurity, pensions, etc. and the monthly or annual amount received ] :

Source of Income Amount

G. Assets Not Yet Marshaled [ list all property owned by the incapacitated person that youhave not yet been able to transfer to the guardianship ] :

[84]

10

.

15. There is no need to modify my powers as property guardian [ or the following changes arenecessary to my powers as property guardian [EXPLAIN] :

.

16. I G WILL [ or ] G WILL NOT need help preparing my annual report [ CHECK ONE ].

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STATE OF NEW YORK ) ) ss.:COUNTY OF NEW YORK)

, being duly sworn, states as follows:

I am the guardian for the above-named incapacitated person, having been duly appointed byOrder and Judgment of the Supreme Court of the State of New York, New York County. Theforegoing Initial Report, including the account and inventory therein, contains, to the best of myknowledge and belief, an accurate statement of the facts set forth, as well as a full and true statementof all my receipts and disbursements on account of said person and of all money and other personalproperty of said person which have come into my hands or have been received by any other personsby my order or authority or for my use as guardian since my appointment, and of the value of allproperty. I do not know of any error of omission in the report to the prejudice of the incapacitatedperson.

___________________________ Guardian

Sworn before me this day

day of , 20

_________________________________Notary Public or Commissioner of Deeds

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INSTRUCTIONS FOR INITIAL (90-DAY) REPORT

This is the report that you must file no later than ninety (90) days after you receiveyour commission. This report tells the court what you have done so far to help theincapacitated person.

To answer Questions 1 through 7, fill in the blanks with the requested information.

To answer Question 8, put a circle around all the documents that the incapacitated personhas. If the incapacitated person does not have any of the documents, leave this blank. Ifyou are uncertain about the existence of any document, please explain. Also, using “Yes,”“No,” or “NA” [for Not Applicable], please indicate as to each of the listed documentswhether you have determined the location thereof, provided a copy, or filed with theSurrogate’s Court (e.g., will).

If you were appointed a guardian of the person of the incapacitated person, you mustanswer Questions 9 through 13. If you were only appointed a guardian of theperson’s property, you should skip these questions.

Question 9 – Tell the court what you have done so far to provide for the incapacitatedperson’s medical, dental, mental and other health care needs. (For example: I took theincapacitated person to the eye doctor to get new glasses and to the dentist to have a toothpulled.)

Question 10 – Tell the court what you plan to do in the future to make sure that theincapacitated person has adequate medical, dental, mental health and other health care.(For example: I will bring the incapacitated person to Doctor X for an annual physical andto Doctor Y, a podiatrist, for special shoes.)

Question 11 – Tell the court what you have done to make sure that, if feasible, theincapacitated person has an opportunity to be with other people, or work, attend school, orparticipate in other activities.

Question 12 – List the government benefits and/or insurance you have applied for onbehalf of the incapacitated person (Medicare, Medicaid, etc.).

Question 13 – If you think you need more powers to meet the personal needs of theincapacitated person, or fewer powers, write down the changes you would like to see madeand tell the court why you want them.

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If the court gave you management powers over the incapacitated person’s property,you must answer Question 14, sections A through G, and Question 15. If you areonly a guardian of the person, you should not answer these questions.

Question 14 (A)(1) – List all the bank accounts that the incapacitated person had when youwere appointed guardian, the account numbers and the amount in each account.

Question 14(A)(2) – List all of the guardianship accounts that you set up, the name of thebank where they are located, the account number and the amount of money in eachaccount.

Question 14(B) – If the incapacitated person had a safe deposit box, provide the requestedinformation. If the incapacitated person did not have a safe deposit box, leave this sectionblank.

Question 14(C) – If the incapacitated person owned shares of stock, provide a completelist of all stock, including the name of the company, the number of shares and the marketvalue of the stock on the date you received your commission. If the incapacitated personowned bonds or other types of securities, provide information regarding the type ofsecurity and the market value on the date you received your commission. Please alsoprovide the name of the brokerage house holding the stock, bonds, or other securities.

Question 14(D) – Provide the requested information for all real property owned by theincapacitated person.

Question 14(E) – Separately list all valuable personal property and provide an appraisal orapproximate value if you do not have an appraisal. If the incapacitated person ownedordinary household furnishings and clothing, provide an approximate value for thispersonal property.

Question 14 (F) – List all monthly income (for example, social security, pensions and trustincome) and the monthly amount the incapacitated person receives from each source.

Question 14(G) – List all of the assets that the incapacitated person owns that you have notyet transferred into guardianship accounts.

Question 15 -- If you think you need more power over the incapacitated person’s property,or less power, write down the changes you would like to see made and tell the court whythey should be made.

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14

Question 16 – If you think you will need assistance preparing the Annual Report, circle“will”. If you think you can do the Annual Report on your own, circle “will not.”

When you have answered all the questions, bring this report to a notary public andsign the paragraph at the end (the certification paragraph) in front of the notary and thenhave the report notarized.

You must then mail a copy of the report to:

Guardianship and Fiduciary Support ServicesNew York Supreme Court60 Centre Street, Room 201-BNew York, NY 10007

The Court Examiner named in your appointing Order and judgment.The Incapacitated PersonThe Court Evaluator named in the appointing OrderIf the incapacitated person lives in a residential facility, to the director of thefacilityTo Mental Hygiene Legal Services if the incapacitated person lives in a MentalHygiene Facility

If you have any questions, please call the Guardianship and Fiduciary Support Office ofthe New York County Supreme Court at 646-386-3328.

Thank you.

[89]

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK I.A. Part

-------------------------------------------------------xIN THE MATTER OF THE APPLICATIONOF

, Petitioner,

FOR THE APPOINTMENT OF AGUARDIAN FOR

, an Alleged Incapacitated Person.

Index No.:

ANNUAL REPORT

FOR 20

------------------------------------------------------x

I, , residing at , as Guardian for , who was heretofore determined by this court to be an incapacitated person (“IP”), dohereby make, render and file the following Annual Report.

On the day of , 20 , I was duly appointed Guardian of theabove-named person by Order of the Supreme Court of New York County and have continuedto act as such fiduciary since that date, giving a bond in the original sum of $ ,[nowin the sum of $ , pursuant to subsequent orders,] which is still in force and effect with , as Surety. There has been no change in the Surety thereon, and the Surety isin as good financial standing as when the bond was given. [There has been no change in theSurety thereon, other than as explained in Schedule F.]

The following is a true and full account of all receipts and disbursements for the year20 .

SUMMARY

Schedule A - Principal on hand as of Date ofAppointment or Last Annual Report $

Schedule B - Changes to Principal $

Schedule C - Income Received $

Sub-Total $

Schedule D - Paid Disbursements $

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Schedule E-1 - Balance of Cash and Securities to be Charged to Next Year's Account $

Schedule E-2 - Real Estate $

Schedule E-3 - All Other Personal Property $

Total Estate $

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3

SCHEDULE A - PRINCIPAL ON HAND AS OF DATE OF APPOINTMENT OR LAST ANNUAL REPORT

SOURCE: Name and address AMOUNT (i.e., number of shares)of bank or financial institution

TOTAL OF SCHEDULE A $

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SCHEDULE B - INCREASES OR DECREASES TO PRINCIPAL(List additional property received, gain or loss on sale or liquidation of stocks or bonds, any netreceipts from sale of realty (attach copy of closing statement), etc.)

SOURCE AMOUNT

TOTAL OF SCHEDULE B $

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SCHEDULE C - RECEIVED INCOME AND CASH INCREASES

(If any property listed in the last Report has been converted to cash, list here the amountreceived from the sale and attach an explanation. If the Guardian has used or employed theservices of the IP, or if moneys have been earned by or received on behalf of the IP, state detailsand amounts here (See Par. 9, below)):

SOURCE AMOUNT

TOTAL OF SCHEDULE C $

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SCHEDULE D - PAID DISBURSEMENTS

PAID TO AMOUNT

TOTAL OF SCHEDULE D $

[95]

7

SCHEDULE E-1 - BALANCE ON HAND AND OTHER PERSONAL AND REAL PROPERTY

BANK ACCOUNTS, INVENTORY MARKETBROKERAGE ACCOUNTS, VALUE VALUEPERSONAL PROPERTY,SECURITIES

(List names of joint (List values as of end of accounting period; forowners, if any, and their securities, list both inventory and market values)relationship to the IP)

TOTAL OF SCHEDULE E-1 $ $

[96]

8

SCHEDULE E-2 - REAL ESTATE

List all real estate owned in whole or in part by the IP. State location, assessed value, currentmarket value, amount of mortgage (if any), and the weekly or monthly rental. If property isowned jointly, give names of joint owners and their relationship to the IP.

LOCATION ASSESSED MARKET MORTGAGE RENTAL JOINT VALUE VALUE INCOME OWNERS

TOTAL OF SCHEDULE E-2

Assessed Value: $ Market Value : $

Mortgages: $ Rental Income: $

[97]

9

SCHEDULE E-3 - ALL OTHER PERSONAL PROPERTY

DESCRIPTION INVENTORY/MARKET VALUE

TOTAL OF SCHEDULE E-3 $

[98]

10

SCHEDULE F - NAME AND ADDRESS OF SURETY

Attach a copy of the latest bond. Also, state and explain any changes in the bond, of the Suretythereon, or in the financial standing of the Surety.)

NAME AND ADDRESS AMOUNT BOND NUMBEROF SURETY OF BOND

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11

AS TO THE INCAPACITATED PERSON:

1. State the age, date of birth and marital status of the Incapacitated Person.

2. If any are living, list the name and present address of the spouse, children and siblings of theIncapacitated Person.

3. State the present residence address and telephone number of the Guardian.

4. State the present residence address and telephone number of the Incapacitated Person. If the IPdoes not currently reside at her/his personal home, set forth the name, address and telephonenumber of the facility or place at which he/she resides, and the name of the chief executiveofficer of the facility or the person otherwise responsible for the care of the IP.

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12

5. State whether there have been any changes in the physical or mental condition of theIncapacitated Person, and any substantial change in medication.

6. State the date and place the Incapacitated Person was last seen by a physician and the purposeof that visit.

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7. Attach a statement by a physician, psychologist, nurse clinician or social worker, or otherqualified person who has evaluated or examined the Incapacitated Person within the threemonths prior to the filing of this report, setting forth an evaluation of the Incapacitated Person'scondition and the current functional level of the Incapacitated Person.

8. If the Guardian has been charged with providing for the personal needs of the IncapacitatedPerson:

(a) Attach a statement indicating whether the current residential setting is suitable to the currentneeds of the Incapacitated Person.

(b) Attach a resume of any professional medical treatment given to the Incapacitated Personduring the preceding year.

(c) Attach the plan for medical, dental and mental health treatment and related services for thecoming year.

(d) Attach a resume of any other information concerning the social condition of the IncapacitatedPerson, including the social and personal services currently utilized by the Incapacitated Personand the social skills and needs of the Incapacitated Person.

9. State whether the Guardian has used or employed the services of the Incapacitated Person, orwhether moneys have been earned by or received on behalf of such Incapacitated Person.Provide details in Schedule C.

10. Attach a resume of any other pertinent facts about the care and maintenance of theIncapacitated Person, including the frequency of your visits; whether the Incapacitated Personhas made a Will or executed a Power of Attorney; and any other information necessary for theproper administration of this matter.

[102]

14

STATE OF NEW YORK ) ) ss.: COUNTY OF ) , being duly sworn, says: I am the Guardian for the above-named Incapacitated Person. The foregoing Annual Reportcontains, to the best of my knowledge and belief, a full and true statement of all my receipts anddisbursements on account of said Incapacitated Person; and of all money and other personalproperty of said person which have come into my hands or have been received by any otherpersons by my order or authority since my appointment or since filing my last Annual Reportand of the value of all such property, together with a full and true statement and account of themanner in which I have disposed of the same and of all property remaining in my hands at thetime of filing this Report; also a full and true description of the amount and nature of eachinvestment made by me since my appointment or since the filing of my last Report. I do notknow of any error or omission in the Report to the prejudice of said person.

Guardian

Sworn to before me this

day of , 20

Notary Public

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Nassau County Overview http://www.courts.state.ny.us/courts/10jd/nassau/pdf/MHL%20Art%2081%20‐%20A%20Brief%20Overview.pdf Forms http://www.courts.state.ny.us/courts/10jd/nassau/guardianship.shtml#Forms GAN Manual Modified for Nassau County http://www.courts.state.ny.us/courts/10jd/nassau/pdf/WorkshopPart1.pdf http://www.courts.state.ny.us/courts/10jd/nassau/pdf/WorkshopPart2.pdf

[120]

Supreme Court

Mental Hygiene/Guardianship

Forms| Guide to Guardianship | FAQS | Links

General Information Supreme Court, Nassau County

Guardianship Department 100 Supreme Court Drive

Mineola, NY 11501 (516) 571-2938

FormsSupreme Court Forms Guardianship Forms

Title WORD WPD PDF Fillable Help

Initial Report

Annual Report of Guardian for Personal Needs Only

Annual Report for Guardian of Property Management & Personal Needs

Designation

Statement Identifying Real Property

Guide to Guardianship

Lay Guardians Appointed Under Article 81 of the Mental Hygiene Law Guardianship- A Brief Overview Workshop Materials- Part One Workshop Materials- Part Two

Links

Nassau County - 10th JD: Mental Hygiene/Guardianship

http://www.nycourts.gov/courts/10jd/nassau/guardianship.shtml (1 of 2)11/20/2011 9:58:23 AM

Nassau County Home

Districtwide Info

Forms

Jurors

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Surrogate's Court

Family Court

County Court

District Court

City Courts: Long Beach &

Glen Cove

Town & Village Courts

[121]

http://www.nycourts.gov/courts/10jd/

http://www.nycourts.gov/courts/10jd/nassau/index.shtml

http://www.nycourts.gov/courts/10jd/nassau/guardianfaqs.shtml

http://www.nycourts.gov/courts/10jd/nassau/Word/InitialReport.doc

http://www.nycourts.gov/courts/10jd/nassau/WPD/InitialReport.wpd

http://www.nycourts.gov/courts/10jd/nassau/pdf/InitialReport.pdf

http://www.nycourts.gov/courts/10jd/nassau/pdf/InitialReportf.pdf

http://www.nycourts.gov/courts/10jd/nassau/pdf/WorkshopPart1a.pdf

http://www.nycourts.gov/courts/10jd/nassau/Word/AnnualReportPersonal.doc

http://www.nycourts.gov/courts/10jd/nassau/WPD/AnnualReportPersonal.wpd

http://www.nycourts.gov/courts/10jd/nassau/pdf/annualreportpersonal.pdf

http://www.nycourts.gov/courts/10jd/nassau/pdf/annualreportpersonalf.pdf


http://www.nycourts.gov/courts/10jd/nassau/Word/AnnualReport.doc

http://www.nycourts.gov/courts/10jd/nassau/WPD/AnnualReport.wpd

http://www.nycourts.gov/courts/10jd/nassau/pdf/annualreport.pdf

http://www.nycourts.gov/courts/10jd/nassau/pdf/annualreportf.pdf


http://www.nycourts.gov/courts/10jd/nassau/Word/Designation.doc

http://www.nycourts.gov/courts/10jd/nassau/pdf/Designation.wpd

http://www.nycourts.gov/courts/10jd/nassau/pdf/Designation.pdf

http://www.nycourts.gov/courts/10jd/nassau/pdf/Designationf.pdf

http://www.nycourts.gov/courts/10jd/nassau/pdf/WorkshopPart1b.pdf

http://www.nycourts.gov/courts/10jd/nassau/Word/StatementIDRealProp.doc

http://www.nycourts.gov/courts/10jd/nassau/WPD/StatementIDRealProp.wpd

http://www.nycourts.gov/courts/10jd/nassau/pdf/Statement Id Real Prop.pdf

http://www.nycourts.gov/courts/10jd/nassau/pdf/Statement Id Real Propf.pdf

http://www.nycourts.gov/courts/10jd/nassau/pdf/WorkshopPart1c.pdf

http://www.nycourts.gov/courts/10jd/nassau/pdf/MHL Art 81 - A Brief Overview.pdf

http://www.nycourts.gov/courts/10jd/nassau/pdf/WorkshopPart1.pdf

http://www.nycourts.gov/courts/10jd/nassau/pdf/WorkshopPart2.pdf











Nassau County - 10th JD: Mental Hygiene/Guardianship

Online Video Training Program

Guardian Assistance Network

Guardian and Fiduciary Services

Court Information Center

Find a Lawyer

©2010 - All Rights Reserved.

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http://www.nycourts.gov/ip/gan/training.shtml


http://www.nycourts.gov/ip/gfs/index.shtml

http://www.nycourts.gov/courts/10jd/nassau/courthelpcenter.shtml

http://www.nycourts.gov/courthelp/lawyers2.html

STATEMENT IDENTIFYING REAL PROPERTYPursuant to Mental Hygiene Law §81/20 (a)(6) (vi)

Record and Index:

Incapacitated Person

Guardian of Property

Address

[ ] Check box if there is/are Co-Guardians of the property and List Below


Address


Address

Adjudication of Incapacity: Supreme Court Nassau County

Index Number Date of Order and Judgment Date of Decision/Verdict

Surety Name:

Bond Number: Phone Number:

[123]

Real Property

Address

Tax Map Desgination: Name of Municipality:

Section Block Lot

Signature of Guardian Co-Guardian

Name of Guardian Name of Co-Guardian

State of New York County of } ss:

On this day of , before me came

Name of Guardian Name of Co-Guardian

to me know to be the individuals described herein, and who executed the foregoing instrument andacknowledged that he/she/they executed same.

Notary Public

[124]

Bronx County http://www.nycourts.gov/courts/12jd/civil/allforms.shtml#guardianship

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12th Judicial District - Bronx County Forms

Bronx County

General Court Info

Court Info

All Forms

Assignment Sheet

Bronx County Clerk (Juror Info)

Case Information (Decisions)

Court Calendars

Court/Law Help

Directions

Fee Schedule

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Help Center

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All Part Rules

E-File Resource Center

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Filing Rules

City Part IA-3 | Part IA-21 Forms | Guardianship | Legal Support | Small Claims Assessment Review | Supreme, Civil and Surrogate's

For all other forms not specific to Bronx County, please check the statewide forms page.

City Part IA-3 Forms

TRIAL AND PRE-TRIAL PDF WPD

HIPPA Compliance Statement Form

Motions & Preliminary Conferences Rules Rules

OSC to Withdraw as Counsel Rules Rules

Settlement Conferences & Trial Assignment - updated 10/06/08

Rules Rules

Settlement Conferences Worksheet Worksheet

Part IA-21 Forms

PART RULES SPECIFIC TO JUSTICE PAUL A. VICTOR PDF WPD

Rules for Motions, Conferences & Trials

Rules Rules

Trial Rules for Trial Counsel Rules Rules

SETTLEMENT OF CLAIMS BY INFANTS/IMPAIRED PERSON PDF WPD

Rules for Compromise Applications Rules Rules

Worksheet/Checklist for Compromise Applications

Worksheet /

Checklist

Worksheet /

Checklist

HIPPA Compliance Statement Form

Standard Compromise Order Form Form

Simple Order for a Structured Settlement (With Instructions)

Form Form

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http://www.nypl.org/branch/bronx/index2.cfm?Trg=1&d1=764

http://www.nycourts.gov/courts/12jd/index.shtml

http://www.nycourts.gov/courts/12jd/index.shtml

http://www.nycourts.gov/courts/12jd/civil/civil.shtml

http://www.nycourts.gov/courts/12jd/civil/pdfs/AssignmentSheet.pdf

http://bronxcountyclerksoffice.com/en/home/

http://www.nycourts.gov/ecourts/

http://iapps.courts.state.ny.us/webcivil/FCASCalendarSearch

http://www.nycourts.gov/courthelp/

http://www.nycourts.gov/courts/12jd/civil/directions.shtml

http://www.nycourts.gov/courts/12jd/civil/trialsupport.shtml#fees

http://www.nycourts.gov/courts/12jd/civil/civil_Foreclosure_Information.shtml

http://www.nycourts.gov/library/bronx/index.shtml

http://www.nycourts.gov/courts/12jd/civil/medical.shtml

http://www.nycourts.gov/courts/12jd/civil/directory.shtml

http://www.nycourts.gov/courts/12jd/civil/directory.shtml

http://www.nycourts.gov/courts/12jd/civil/selfrep.shtml

http://www.nycourts.gov/courts/12jd/civil/dcm.shtml

http://www.nycourts.gov/courts/12jd/civil/dcm.shtml

http://www.nycourts.gov/courts/12jd/civil/guardianship.shtml

http://www.nycourts.gov/courts/12jd/civil/legalsupport.shtml

http://www.nycourts.gov/courts/12jd/civil/matrimonial_support.shtml

http://www.nycourts.gov/courts/12jd/civil/trialsupport.shtml

http://www.nycourts.gov/courts/12jd/civil/partrules.shtml

https://iapps.courts.state.ny.us/fbem/mainframe.html

http://www.nycourts.gov/courts/12jd/civil/trialsupport.shtml#q11

http://www.nycourts.gov/courts/12jd/civil/filingrules.shtml

http://nycourts.gov/forms/index.shtml

http://www.adobe.com/products/acrobat/readstep2.html

http://www.nycourts.gov/courts/12jd/forms/city_part/HIPPA.PDF

http://www.nycourts.gov/courts/12jd/forms/city_part/Rule_ for_Motions_and_Preliminary_Conferences.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/Website Form Rules for Motions and Preliminary Conferences.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/OSCtoWithdrawasCounsel.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/OSCtoWithdrawasCounsel.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/Rules_For_Settlement_Conferences_&_Trial_Assignment.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/Website Form Rules For Settlement Conferences & Trial Assignment .wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/WorksheetSettlementConference_IA3.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/WorksheetSettlementConference_IA3.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/IA-21RULES.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/IA-21RULES.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/IA-21TrialRulesForTrial Counsel.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/IA-2TrialRulesForTrialCounsel.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/IA-21RulesForCompromiseActions.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/IA-21RulesForCompromiseActions.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/IA-21WorksheetChecklistInfantComp.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/IA-21WorksheetChecklistInfantComp.wpd

http://www.nycourts.gov/courts/12jd/forms/city_part/HIPPA.PDF

http://www.nycourts.gov/courts/12jd/civil/pdfs/IA-21Form-StandardOrder.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/IA-21Form-StandardOrder.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/IA-21FORM-SIMPLE ORDER.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/IA-21FORM-SIMPLE ORDER.wpd












Filing Rules for E-Filed Motions

Criminal Division

Links

Parent Education

Complex Order for a Structured Settlement (With Instructions)

Form Form

Broker’s Affidavit for a Structured Settlement

Form Form

Guardianship Forms

Title PDF WPD

Annual Accounting Report

Initial Report

Final Report

Ex Parte Application for Approval of Secondary Appointment

Article 81 Judgment - Sample

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Title PDF

Family Protection Registry Information Sheet (FPRIS)

Addendum to Family Protection Registry Information Sheet

New York State Case Registry Filing Form (NYSCRFF)

Confidential/Settlement Worksheet

Small Claims Assessment Review (SCAR)

Title PDF WPD

General Information and Filing Requirements for Counties Outside New York City

Petition SCAR for Counties Outside of New York City


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http://www.nycourts.gov/courts/12jd/civil/filingrules-efile.shtml

http://www.nycourts.gov/courts/12jd/civil/filingrules-efile.shtml

http://www.nycourts.gov/courts/12jd/criminal.shtml

http://www.nycourts.gov/courts/12jd/civil/links.shtml

http://www.courts.state.ny.us/ip/parent-ed/index.shtml

http://www.nycourts.gov/courts/12jd/civil/pdfs/IA-21FormComplexOrder.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/IA-21FormComplexOrder.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/IA-21StructureBrokersAffidavit.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/IA-21StructureBrokersAffidavit.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/Guardianship - Annual Accounting.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/Guardianship - Annual Accounting.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/Guarndianship - Initial Report.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/Guarndianship - Initial Report.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/Guardianship - Final Report of Guardian.pdf

http://www.nycourts.gov/courts/12jd/civil/pdfs/Guardianship - Secondary Appointment B.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/Guardianship - Secondary Appointment B.wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/Guardianship - Article 81Judgment.pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/Guardianship - Article 81Judgment.wpd

http://www.nycourts.gov/forms/familycourt/pdfs/info_she.pdf

http://www.nycourts.gov/forms/familycourt/pdfs/addendum.pdf

http://www.nycourts.gov/litigants/divorce/forms_instructions/case-reg.pdf

http://www.nycourts.gov/courts/12jd/forms/city_part/Worksheet_For_Settlement_Conferences.pdf

http://www.nycourts.gov/courts/12jd/civil/pdfs/SCAR Info sheet outside NYC .pdf

http://www.nycourts.gov/courts/12jd/civil/wpds/Website - Small Claims Assessment Review ( SCAR ).wpd

http://www.nycourts.gov/courts/12jd/civil/pdfs/SCAR Info sheet.pdf


Supreme, Civil and Surrogate´s Forms

OmniForms: The OmniForm version of our forms can be filled out electronically. To access them, you will be asked to install a browser plug-in from ScanSoft.

Please keep in mind when completing OmniForms that "the text of all papers must be legible and, other than prompts and instructions, must be in a standard typeface of 10 to 12-point characters and have margins" [22NYCRR Section 207.4]. The typeface becomes smaller as more information is inserted therefore additional pages MUST be attached when available space is insufficient, i.e. typeface becomes too small to be legible.

Title OMNI

Attorney Change of Address

Compliance Conference Order

Matrimonial PC Stipulation Order

Prelim Order Conference Part

Prelim Order Conference Part IA3

Order of Joint Trial

Order of Consolidation

©2007 - All Rights Reserved.


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http://www.nycourts.gov/courts/12jd/civil/omni/Atty-Change-of-Address.html

http://www.nycourts.gov/courts/12jd/civil/omni/Compliance-Conference-Order.html

http://www.nycourts.gov/courts/12jd/civil/omni/PC-Stip_Order.html

http://www.nycourts.gov/courts/12jd/civil/omni/Prelim-Conference-Order.html

http://www.nycourts.gov/courts/12jd/civil/omni/Prelim-Conference-Order-Part-IA3.html

http://www.nycourts.gov/courts/12jd/civil/omni/Joint Trial.html

http://www.nycourts.gov/courts/12jd/civil/omni/Consolidation Order.html

Queens County Supreme Court, provides links to forms http://www.nycourts.gov/courts/11jd/supreme/civilterm/guardianship.shtml

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Wendy H. Sheinberg, Esq.,

Davidow, Davidow, Siegel & Stern LLP

516‐222‐7720

Source and Scope of Authority The Order and Judgment The Commission Article 81 of the Mental Hygiene Law

Least Restrictive Intervention 81.01 “…. it is desirable for and beneficial to persons with incapacities to

make available to them the least restrictive form of intervention which assists them in meeting their needs but, at the same time, permits them to exercise the independence and self‐determination of which they are capable…. tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self‐determination and participation in all the decisions affecting such person's life.

Modified Patrick Henry Rule “Give me liberty or give me a new guardian.”

A Guardian is to afford the individual the greatest amount of independence and decision making taking into account:

The individual's functional level;

The individual’s understanding of his/her functional limitations;

The individual’s appreciation of his/her functional limitations;

The personal wishes, preferences and desires of the individual with regard to managing his/her activities of daily living.

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2

Who is the boss of me? A Guardian is a fiduciary, they are not the boss, they are not in

charge, they have been appointed to carry out a job in furtherance of the needs of the individual

Not a finding of incompetence “judicial finding of incompetence and the accompanying stigma and loss of civil rights, traditionally involves a deprivation that is often excessive and unnecessary.” [81.01]

It does provide assistance in meeting their personal and property management needs

It does not allow a guardian to (without good cause) usurp the wishes of the individual.

It does not allow a guardian to force an individual to comply with medications, absent a specific Order of the Court after a separate proceeding in regard to the medication issue.

It does not allow a guardian to consent to ECT without a separate Order of the Court on this issue.

Who is the boss of me? (cont.) It does not allow a guardian to move an individual to a facility on a

permanent non‐emergency basis without prior Court Approval. It does not strip the individual of the rights afforded to them under

the United States Constitution It does require the guardian to determine the personal wishes and

preferences of the individual. It does not authorize the guardian to commence a divorce

proceeding unless the Court has authorized it. It does not prevent the individual from making a new will unless

there has been a specific finding that the person lacks testamentary capacity.

It does not allow the guardian to compel the individual to see, speak with or visit people the individual does not wish to see, speak with or visit

Working Papers Grant of authority is very specific, you can only do what your working papers say you can do, in the way that they say you can do it.

Read the SIGNED Order and Judgment.

Read the CERTIFIED Commission.

Read the transcript of the Judge’s decision.

Read any other decisions, orders or memorandums the Judge has issued.

Read the Court Evaluator’s Report for suggestions made by the Evaluator,

12/3/2012

3

I Just Don’t Know What to Do

Read the documents set out on the last slide.

Call the Court Examiner (Name and Number are in the Order and

Judgment, if they have been replaced call the Guardianship Clerk of the appointing court and they will tell you who has taken their place).

Call your lawyer [fee issue].

Make a short form application and send to Court Examiner for approval.

Petition/Motion .

General Guidance If it won’t look good on the front page of the Times, don’t do it, unless you have a clear order from the Court which has been entered and notice of entry served and the time to appeal has passed.

If you as guardian would commence an action against anyone else doing the thing you are thinking of doing, don’t do it.

If your Aunt Tilly would shake her head at it, don’t do it.

Do not do things that benefit you, without specific prior approval of the Court.

Level of Care A Guardian must exercise the UTMOST care and diligence when acting on behalf of the incapacitated person

A Guardian must exhibit the UTMOST degree of trust, loyalty and fidelity in relation to the incapacitated person

UTMOST: Highest, as in there can be nothing higher than the care and diligence you take in acting as guardian and there can be no higher degree of trust, loyalty and fidelity than when you are acting as guardian.

The person you are guardian of must come first.

Family disagreements, personal grudges must be disregarded.

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Danger, Caution Required Making Gifts

Selling real property

Selling personal tangible property

Giving away personal tangible property

Moving the Individual from their present residence or facility

Denying access

Compelling treatment the individual objects to or has previously stated an objection to, or is inconsistent with the known wishes and beliefs of the individual

What are you going to do? Preserve, protect and account for property and income. File a statement identifying real property . Find out if there is a will, file the original will in the surrogate’s

court as directed, keep a copy of the filing receipt. Use the property and income to support the individual. Keep Records, bills, itemized store receipts, cancelled checks,

income records, etc., etc.,. File initial and annual reports. Visit the individual at least every 90 days, or more frequently as

the Order or circumstances require (sign in/document visits). Consider establishing a pre‐paid burial/funeral if authorized,

cost should be relative to available assets and beliefs of individual

What’s what and where it is Determine what the individual owns and is entitled to. Make a list of all account and other statements that come in. Search websites maintained in each state individual has lived in

or owns property in and search for unclaimed funds, https://ouf.osc.state.ny.us/ouf/

Review prior tax returns including attachments to determine other assets, including safe deposit boxes and business interests IRS Form 4506, Form 56.

Make and maintain copies of all guardianship documents beginning with the Petition and Order to Show Cause

Establish a plan for the management of assets and the personal needs of the individual

Request authority to use professionals such as financial planners with expertise in this area and geriatric care managers.

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What’s what and where it is (cont.) Request permission to buy a computer and accounting program

and a small stipend for office type expenses to allow you to be organized.

Have a cell phone, turn it on and answer it. [you can track usage and request a pro rata reimbursement for guardianship related usage.]

Keep a separate credit card that you only use for the guardianship. [Keep actual store receipts and credit slips and bills.]

Inventory all personal property [i.e. yellow metal ring with 14k stamp] take pictures, label pictures and have items appraised. You need Court permission to sell personal property, and you must determine the wishes of the individual, and consider any specific bequests under the individual’s will.

Use of assets to maintain individual Marshal assets into the guardianship. If the individual has assets which name beneficiaries, you should not liquidate and spend those assets or change those beneficiaries without specific court authorization. The account registration on ITF accounts should reflect the existence of the guardianship and maintain the ITF status.

Maintain life insurance and do not change beneficiary. If the individual has assets that name a joint owner, you should not liquidate and spend those assets or change those beneficiaries without specific court authorization Joint accounts.

No mixing and mingling with your assets, ever (remember NY Times cover story).

Bank Accounts Individual account:

Bruce Wayne, as Guardian of the property of Alfred Pennyworth;

In Trust For account:

Bruce Wayne, as Guardian of the property of Alfred Pennyworth in trust for Dick Grayson

ITF accounts, absent a contrary order, are only to be used after all other assets have been depleted and then on a pro rata basis

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Brokerage Accounts, Stock, MF, etc. Contact each entity and/or transfer agent

Determine from them in writing the requirements to change registration, also ask if there are other accounts, book entry shares/certificate share/ dividend reinvestment programs/what they are and the identity of beneficiaries if any. Also obtain basis information and full history.

Brokerage Accounts, Stock, MF, etc. (cont.) General requirements:

Letter of Instruction with Medallion Guarantee directing transfer agent/broker/entity to change registration

Stock Power

Original paper stock certificates

Information on book entry shares and DRIP

Maintain beneficiaries/POD/TOD

Tip: bring paper shares to broker and they will assist with all transfers.

US Savings Bonds Bonds are issued by US Treasury, Department of the Public Debt.

http://www.treasurydirect.gov/indiv/research/indepth/ebonds/res_e_bonds_eereplace.htm Form PD F 4000 first review if redemption or re‐issue is available and appropriate

Tax Considerations: http://www.treasurydirect.gov/indiv/research/indepth/ebonds/res_e_bonds_eetaxconsider.htm

Replace a missing or destroyed bond: Form PD F 1048 (maintain beneficiaries)

To value bonds and maintain an inventory: http://www.treasurydirect.gov/BC/SBCPrice

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Safe Deposit Boxes Look on tax return for safe deposit box fees, contact all banks

individual uses and ask if there is a box. Guardian must inventory the box. Locate Key, if none can be found ask bank about their

requirements and costs of drilling open the box. Schedule time to inventory once all of the bank’s documentary

requirements have been met. Bonding company agent may want to be present during

inventory, contact in advance. Inventory box, take pictures and photocopy documents. Obtain authority to have appraisals and additional insurance if

appropriate. File inventory and seek additional authority for additional

actions as needed.

Real Property Statement identifying real property§81.20(a) (6)(a)(vi)

A house

A condo

A business property

Homeowner’s insurance

Utilities

Tax Authorities, tax exemptions

Do not mortgage property without prior specific approval

Selling Real Property [RPAPL Article 17 proceeding is required!!]

There is no place like home Peapod, Fresh Direct etc. do not co‐mingle your grocery shopping Drugstore.com for personal care items Maintain RX at one place if possible, if RX must be ordered through a

prescription service, keep records so automatic renewal can be done and maintain an account at a local pharmacy, many such as Duane Reade and CVS also have an online service

Consider, Meals on Wheels Landscaper to keep property from looking vacant and alerting

criminals to an easy mark Phone (install a simple to dial adaptive phone and answering machine,

home aides should be instructed to review messages with individual and to write them down verbatim and advise guardian of messages so they don’t go unaddressed)

Emergency Contact List

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Get a Record Maintain clear records of all physicians with contact information

and last seen dates Ailments and diagnosis as well as medications logs and

medical/surgical history Medical insurance copies of cards [Long term care insurance] Emergency Contacts Personal care aide logs Private Aides:

Issues: Workers compensation, reporting of income and other employment issues[Obtain TIN from IRS with an SS‐4 using individual’s SSN, Worker’s Comp coverage, address tax withholding, Medicare Tax, FICA NYC and NYS reporting, payroll taxes] [Tip, hire bookkeeper and accountant to set up reporting system before you hire aides]

Benefits and Entitlements Contact the Social Security Administration 1‐800‐772‐1213 www.ssa.gov,

complete form to be representative payee. Contact plan administrators for all pensions Contact HR and benefits department of prior employers and trade

unions Contact Medicare 1‐800‐Medicare (yes it has an extra digit)

www.medicare.gov Contact supplemental insurance provider Contact the VA 1‐800‐827‐1000 www.va.gov Determine eligibility for Medicaid, VA programs or other benefits. Reparations: Contact Austrian Consulate General or German Consulate

General in New York [Keep in a separate account] Verify prescription drug coverage and review for adequacy Consider EPIC www.health.ny.gov/health_care/epic/

The Tax Man Assemble all information for individual’s tax return for all states that individual is subject to income tax as well as federal

Meet with accountant shortly after appointment

Set up system to pay quarterly’s and to insure liquid assets are available

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Creditors, Scammers and Predators, Oh My! Send change of address for mail/open P.O. Box

Contact major credit reporting agencies

Send letters to all known creditors

Contact Direct Mail Association

Remove from automatic credit offers

Do not call list

Block HSN etc with parental controls (v‐chip)

Set internet parameters and make sure individual does not have administrative rights to change browser options.

Free Credit Report (no pirate shirts or cool jingles) The amended Fair Credit Reporting Act permits consumers to request a free copy of their credit report once every 12 months from each of the three major credit reporting agencies (i.e., Equifax, Experian, Trans Union). You can order a free credit report:

www.annualcreditreport.com 1‐877‐322‐8228 Or complete the Annual Credit Report Request Form found at:

https://www.annualcreditreport.com/cra/requestformfinal.pdf ‐PDF and mail to:Annual Credit Report Request ServiceP.O. Box 105281Atlanta, GA 30348‐5281

For more information visit: www.ftc.gov

I vant to be alone Direct Mail Association opt out https://www.dmachoice.org/dma/member/home.action;jsessionid=907247906423DCB8779744ABEE46F2AA.tomcat2 DMA Mail Preference Service PO Box 643 Carmel, NY 10512 [send with check for $1.00 with name, address and signature, if you register as a caretaker there is no fee]

Contact individual companies and remove name from list.

Credit Card Bureau opt out list: 1‐888‐5‐OPT‐OUT or OptOutPrescreen.com . You'll need to provide your Social Security number and a few other pieces of identifying information.

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Don’t call me no more Do not call list

https://www.donotcall.gov/

Telephone numbers placed on the National Do Not Call Registry will remain on it permanently due to the Do‐Not‐Call Improvement Act of 2007, which became law in February 2008.

Can’t say they didn’t know Write to the credit agencies and advise of guardianship and that no one is authorized to do a credit check or order a report other than guardian Equifax (www.equifax.com)P.O. Box 740241Atlanta, GA 30374‐02411‐800‐685‐1111

Experian(www.experian.com)P.O. Box 2104Allen, TX 75013‐09491‐888‐EXPERIAN (397‐3742)

Trans Union (www.transunion.com)P.O. Box 1000Chester, PA 190221‐800‐916‐8800

Record Keeping & Reporting Requirements 8 Peggy Barnabel, Esq.

Peggy Barbanel is a sole practitioner whose law practice focuses exclusively on guardianship issues and proceedings. Ms. Barbanel is a Court Examiner appointed by the Presiding Justice of the Appellate Division, Second Department and, for the last 31 years, has been an associate of Court Examiners to examine the accounts and inventories filed in the Office of

the Clerk of Kings and Richmond Counties by Committees, Conservators and Guardians of

Incompetent Persons, Patients, Conservatees, and Incapacitated Persons pursuant to Section 81.32 and

former Sections 78.23, 79.17 and 77.29 of the Mental Hygiene Law. She has also been appointed as court evaluator, guardian, counsel for alleged incapacitated persons, and counsel in final proceedings. Ms. Barbanel has also represented petitioners in Article 81 proceedings and represents guardians in on-going guardianships. Ms. Barbanel has been a faculty member at Article 81 training programs for the Appellate Division Second Department, the Brooklyn Bar Association, the Association of the Bar of the City of New York, New York County Lawyers Association, Richmond County Lawyers Association and has spoken on behalf of the Elder Law Section of the New York State Bar Association on Decision Making Day. Additionally, Ms. Barbanel has conducted training programs for newly appointed Court Examiners in Kings County.

Ms. Barbanel was also an Administrative Law Judge for the NYC Taxi & Limousine Commission. A graduate of Syracuse University, Ms. Barbanel received a Masters Degree in Remedial Reading from Long Island University and a J.D. degree from New York Law School. She is admitted to the state bars of New York and New Jersey and the United States District Court for the District of New Jersey. Ms. Barbanel is also a Mediator for the New York Center for Interpersonal Development and a Trainer for ACT (Assisting Children Through Transition) . She is a member of the New York State Bar Association Elder Law Section and the Bay Ridge Lawyers Association.

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By: PEGGY BARBANEL, ESQ. - COURT EXAMINER PREPARING INITIAL AND ANNUAL REPORTS I. INITIAL REPORT (M.H.L. §81.30):

A. PURPOSE: to ensure that the Guardian is taking all necessary steps toward fulfilling his/her fiduciary responsibilities as set forth in the Order and Judgment Appointing Guardian (hereinafter referred to as “Order Appointing”);

B. DUE: 90 days from the date the “Commission ” is issued by the County Clerk;

C. FILE: The original must be signed and notarized and filed at the Count Clerk’s Office, and a copy must be sent to the Court Examiner. Guardian should attach a copy of the Order Appointing as well as a photocopy of the certificate showing completion of the Article 81 education requirement ;

D. CONTENTS: If you are the Guardian of the Person and well as the Property, the Initial Report should include the following information:

1. As to Person: The Initial Report should contain information relating to the I.P.’s current functional level, address and telephone number and should list the I.P,’s relatives. The Initial Report should include a list of dates that the Guardian visited the I.P.; the steps already taken to provide for the I.P.’s personal needs including medical, dental and mental health care information; the Guardian’s plans for providing on-going medical, dental and mental health care for the I.P.; a list of medications taken by the I.P. including purpose and quantity; what provisions Guardian has made for social and personal services for the I.P.; provide information relating to health and accident insurance as well as government benefits to which the I.P. may be entitled.

2. As to Property: The Initial Report should include a complete inventory of the I.P.’s assets and financial resources, including, but not limited to, bank accounts, stocks and securities, real estate, personal property, and income. The Guardian will also set forth the disbursements made on behalf of the I.P. and whether there are any claims and debts against the I.P. The Initial Report should also contain information relating to whether the I.P. has a Last Will and Testament.

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E. EXAMINATION BY COURT EXAMINER: The Court Examiner

will usually not meet with the Guardian to examine the Initial Report. The Court Examiner will compare the information contained in the Initial Report with all other documents to ensure that the Guardian is taking all necessary steps to fulfill his/her fiduciary duties.

1. Examining the Assets: The Court Examiner will ascertain the I.P.’s assets and financial resources from the Petition, the Order Appointing, and the Court Evaluator’s Report and will compare them to the assets and financial resources provided by the Guardian in the Initial Report;

PREPARATION TIP: When preparing the Initial Report, it is advisable to account for ALL the assets as listed in the Order Appointing and state what the current status of each asset it. For example, if the Order Appointing shows that the I.P. has a bank account in Bank A containing $200.00, and the Guardian determines that the account has been closed, it is advisable to list that account and state, “closed on (date).” In this way, the Court Examiner is assured that the Guardian has made an attempt to marshal that asset, and has thus accounted for it.

2. Examining the Income: The Court Examiner will make a similar comparison when examining the income collected by the Guardian.

PREPARATION TIP: When preparing the Initial Report, it is advisable to account for ALL the I.P.’s income as shown in the Order Appointing. For example, if the Order Appointing states that the I.P. gets Social Security Benefits of $850.00 per month, and the Guardian has not yet become the Representative Payee of the benefits, it is advisable to state in the Initial Report what STEPS HAVE BEEN TAKEN to marshal the income.

3. Examining the Disbursements: The Court Examiner will make a similar comparison when examining the disbursements contained in the Initial Report. It is advisable to pay all fees contained in the Order Appointing and list them in the Initial Report. Similarly, if the Guardian has a surety bond, the Court Examiner will be checking the disbursements to ensure that the bond premium has been paid.

4. Examining other powers/duties: Insofar as the Order Appointing sets forth all of the Guardian’s powers, duties and responsibilities, the Court

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Examiner will examine the Order and will look for directives specific to each case. The Court Examiner will then examine the Initial Report paying special attention to the steps the Guardian has taken to fulfill all responsibilities and to accomplish all directives. For example, if the IP is a party to an eviction proceeding and the Guardian is ordered to defend this action, the Court Examiner will want to see contained in the Initial Report the status of the eviction proceeding. Similarly, if the Order directs Guardian to relocate the I.P. to a safer, more appropriate residence, the Court Examiner will expect to see the Guardian’s progress with respect to relocating the I.P.

PREPARATION TIP: Remember, the Court Examiner is aware that the Guardian has only been commissioned to act as Guardian for 90 days; the Court Examiner will want the Guardian to list all steps taken to accomplish all mandates contained in the Order Appointing. The Court Examiner does not expect the Guardian to accomplish EVERYTHING in 90 days.

PREPARATION TIP: Be prepared to provide the Court Examiner with proof of all financial activity and personal needs data. The Court Examiner may ask the Guardian to provide the following:

- Bank Statements;

- Brokerage Statements;

- Evidence of all disbursements including cancelled checks, receipts, Paid bills;

- Tax Returns;

- Recent letter from medical care provider stating date and purpose of I.P.’s of last visit;

- Court Orders;

- Proof of insurance;

- Any other documentation that is relevant and necessary.

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II. ANNUAL REPORT (M.H.L. §81.31):

A. PURPOSE: To provide all financial and personal information for the calendar year.

B. DUE: During the month of May for the prior calendar year.

PREPARATION TIP: The very first accounting period for the Annual

Report is from the date of appointment through December 31st of that year. Thereafter, the Annual Report covers the period from January 1st through December 31st.

PREPARATION TIP: THE ANNUAL ACCOUNT IS NOT A CONTINUATION OF THE INITIAL REPORT--IT IS A SEPARATE DOCUMENT AND STANDS ALONE. IT RELATES BACK TO THE DATE OF APPOINTMENT.

C. FILE: The original must be signed and notarized and filed at the Count Clerk’s Office, and a copy must be sent to the Court Examiner.

D. CONTENTS: The contents of the Annual Report DIFFERS SIGNIFICANTLY from the contents of the Initial Report. While the purpose of the Initial Report is to ensure that the Guardian is taking all necessary steps toward fulfilling his fiduciary responsibilities and does contain portions devoted to assets marshaled, income collected and disbursements made, the Annual Report is detail oriented and contains financial schedules that must be precise and BALANCED.

- Most importantly, the Annual Report contains a RECAPITULATION/ SUMMARY section which must be mathematically correct.

- THE ANNUAL ACCOUNT CONSISTS OF SCHEDULES: As long as the Guardian is consistent from year to year, the schedules can be called A, B, C, or A, A-1, A-2, B, B-2, B-2, etc,. The following schedules are required:

Schedule A: Principal Marshaled Schedule B: Income Schedule C: Increases or Decreases to Principal (Realized and Unrealized)

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Schedule D: Disbursements Schedule E-1: Balance of Cash & Securities

SUMMARY/RECAPITULATION SCHEDULE Schedule E-2: Real Estate Schedule E-3: All other personal property Schedule F: Name and address of Surety Schedule G: As to the Incapacitated Person

1. PRINCIPAL MARSHALED SCHEDULE: Follow the Order Appointing, track each asset, use real numbers (make sure you change the title of the account “Mary Sample, Guardian of Jane Sample).

PREPARATION TIP: Follow the same procedure as setting forth the Assets marshaled for the Initial Report. Follow the list of assets set forth in the Order Appointing. In this case, since more time has usually elapsed, the Guardian has had the opportunity to marshal ALL assets. If Guardian has closed a bank account and deposited the funds into a Guardianship account in another bank, it is a good idea to state the prior Bank and account number so that Court Examiner is assured that the particular asset has been accounted for.

(a) As to bank accounts: Guardian should list each bank account separately and include the name of the bank, the account number, the title of the account, whether the account is joint and if so, with whom, the amount in the account the date the Guardian marshaled the account.

(b) As to stocks and bonds: Guardian should list each security with the number of shares (if stocks) and the value per share as of the date the Guardian marshaled the asset.

(c) As to security accounts: Guardian should list each account separately providing the name of the brokerage house and account number, the securities list and amounts as of the date the Guardian marshaled the asset.

(d) As to other assets marshaled: Guardian should list all other monies received, whether retroactive lump sum benefits or refunds, giving details as to name or source, amount received etc.

(e) There is a separate schedule for Real Estate.

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PREPARATION TIP: In the second year, your Schedule A PRINCIPAL MARSHALED SCHEDULE will become ASSETS ON HAND ON DATE OF LAST ACCOUNTING. Insofar as each accounting period ends December 31st, the next period begins on January 1st with the same assets that you ended the prior period with.

2. INCOME SCHEDULE: As in the Initial Report, Guardian should list ALL sources of income as stated in the Order Appointing. It is Important to distinguish between income received and increases to principal for purposes of computing Guardian’s commissions (depending on method of calculating commissions as set forth in order appointing, this distinction becomes critical).

PREPARATION TIP: REMEMBER: ALL DEPOSITS ARE NOT INCOME and TRANSFERS ARE NOT INCOME (transfers are nothing more than changing one type of asset for another)

(a) EXAMPLES OF INCOME: Social Security, Pension Benefits, Bank Account Interest, Stock Dividends, Bond Interest, Monthly Structured Settlement Payments (lump sums are considered Increases to Principal), Rental Income, I.P.’s income from employment, etc.

PREPARATION TIP: Items of income should be categorized

and subtotaled as follows: Social Security Benefits 10 months @ $200. $ 2,000.00 2 months @ $220. 440.00 $2,440.00

Bank Interest Chase, Checking #1234 $ 100.00

HSB, Savings #4567 650.00 $ 750.00

TOTAL INCOME RECEIVED: $3,190.00

3. INCREASES TO PRINCIPAL SCHEDULE: (ALSO “GAINS”):

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Generally occurs when you are receiving monies – not income. There are two types of Increases to Principal: Realized and Unrealized.

(a) “Realized Increase to Principal” – refers to monies received

on the sale of stocks and bonds that were sold; on monies received on the sale of real estate or other property (car, antiques, etc.) Also refers to reimbursements or refunds – monies that were previously expended (tax refunds, medical refunds) and are now being returned to the estate.

(b) “Unrealized Increase to Principal” – refers to the fluctuation of the market value of a securities account.

EXAMPLES OF INCREASES TO PRINCIPAL: - Proceeds of sale of property - Increases realized upon sale of Securities (bought stock for $5, sell at $7) - Tax Refunds - Insurance Premium Refunds - Newly discovered and marshaled asset - Inheritance - Capital gain - Unrealized increase to value of securities due to market fluctuation (worth more at end of period than was worth at beginning)

4. DECREASES TO PRINCIPAL SCHEDULE: (ALSO “LOSSES”)

There are also realized and unrealized decreases, as follows:

(a) “Realized Decrease” – includes loss of monies on the sale of stocks and bonds or other assets; also includes monies withdrawn to purchase real estate (pursuant to prior Court approval).

(b) “Unrealized” - refers to the fluctuation of the market value of a securities account – decrease in value of securities – less at end of period than was worth at beginning.

5. DISBURSEMENTS SCHEDULE: – monies you expend on behalf of the Incapacitated Person from the funds of the Incapacitated Person.

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GENERALLY – These are the expenses necessary for the everyday support and maintenance of the IP and maintenance of real property (and perhaps, for the support and maintenance of others dependent on the IP)

PREPARATION TIP: REMEMBER, : In the same way that all deposits are not income, ALL WITHDRAWALS ARE NOT DISBURSEMENTS. Some withdrawals are nothing more than withdrawing funds from one account and transferring the funds to another – again, transferring one type of asset for another. TRANSFERS ARE NOT DISBURSEMENTS.

(a) MOST COMMON CATEGORIES OF DISBURSEMENTS:

i. Payments pursuant to Court Order; Bond Premiums ii. Living Expenses (if lives with others, proportionate

share) - Rent - Food - Utilities (Gas, Electric, Phone) - Clothing - Household expenses: sundries, cleaning materials

iii. Medical Expenses - Doctors, hospitals, ambulance, medical tests - Medicines; Health Insurance

iv. Nursing Home Care v. Homecare Services (employer/employee – employee

taxes, including social security, medicare, withholding transmittals, unemployment insurance, disability insurance, worker’s compensation insurance

vi. Taxes: Federal, NYS, NYC vii. Real Estate Expenses

- Taxes and Insurances; Water and Sewer - Mortgage payments; - Repairs

**** PREPARATION TIP: DO NOT LIST YOUR DISBURSEMENTS CHRONOLOGICALLY BY CHECK # OR DATE ORDER. THE DISBURSEMENTS MUST BE CATEGORIZED AND SUB-TOTALED.

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**** PREPARATION TIP: DO NOT PAY ANY FEES TO ATTORNEYS OR ACCOUNTANTS WITHOUT PRIOR COURT APPROVAL. **** PREPARATION TIP: DO NOT MAKE ANY MAJOR PURCHASES or GIVE MONETARY GIFTS WITHOUT PRIOR COURT APPROVAL. (The $11,000 gift allowed by IRS is another issue and does not apply to guardianships.)

(b) EXAMPLE OF DISBURSEMENTS FORMAT:

Bond Premium $ 1,000.00

Payments Per Court Order Court Evaluator $ 2,000.00 Jane Doe, Esq. 3,000.00 Dr. Diamond 500.00 $

5,500.00

Rent, 12 mo. @ $1000.00 12,000.00

Home care Expenses Ms. Jones $10,000.00 Ms. Smith 5,000.00 15,000.00

Utilities: Telephone $ 500.00 Gas 750.00 Electric 550.00

1,800.00

TOTAL DISBURSEMENTS: $34,300.00

PREPARATION TIP: Some Guardians and Court Examiners find it preferable to list all payments in each category by date and check number and then give further subtotals, as follows:

Utilities: Nynex 1/12/03, check #124 $ 75.00 2/13/03, check #142 72.50 3/11/03, check #155 80.25 $ 227.75

−10−

Whatever method you choose, as long as your disbursements are categorized and subtotaled, the Court Examiner will be able to make a determination as to whether the annual expenditures made on behalf of the I.P. were necessary and proper. REMEMBER: If you expend your own monies, do not include that $ in disbursement.

6. SCHEDULE OF ASSETS ON HAND (as of December 31st)

(a)List all assets on hand at the end of the examination period: - list each bank account separately providing: bank name,

Branch #, address, account #s, title of account, amount.

- list all stocks/bonds: name, # of shares, amount, inventory value and market value; - list all brokerage accounts providing: name, address, account

Number, investments, amount; - ADD UP ALL ASSETS AND PROVIDE A TOTAL.

** Make sure that there is a statement for each asset that shows exact

dollar amount AS OF DECEMBER 31ST.

7. SUMMARY/RECAPITULATION SCHEDULE

This may be one of the most important components of the annual account because it proves that the schedules are mathematically correct. This should balance so that the total of all assets on hand as of December 31st are the result of the following:

Principal Received Schedule Plus: Income Received Plus: Increases to Principal Less: Decreases to Principal Less: Disbursements EQUALS – the balance on hand as of December 31st.

If the balance that you reach after performing the above mathematical

calculations does not equal the actual balances on deposit in bank accounts, stocks,

−11−

bonds, securities accounts, etc., this means that there are errors in one or more of the schedules and/or in the calculations. Your accounting must be corrected before filed.

PREPARATION TIP: After the first year, the beginning balance is the ending balance of the prior year. To reiterate, while Schedule A in the first year is called “Principal Received”, in subsequent years Schedule A is called “Balance on Hand” (this is the ending balance of the prior year)

8. REAL ESTATE SCHEDULE:

List all real estate owned by the Incapacitated Person. Describe the property providing the following details:

- address - fair market value; - title; - whether property is subject to a mortgage, and if so, provide details; - whether the property is income producing and if so, provide details as

to names of tenants, amount of monthly rent, whether the tenant has signed a lease and details;

- whether the property is covered by fire and liability insurance, and if so, provide details;

- whether all real estate taxes are paid to date;

9. OTHER PERSONAL PROPERTY:

List all other personal property belonging to the Incapacitated Person, including, but not limited to:

- automobiles; - jewelry – supply an appraisal - antique furniture - supply an appraisal - artwork - supply an appraisal - whether the I.P. has a safety deposit box and the contents thereof.

10. SCHEDULE AS TO INCAPACITATED PERSON:

−12−

The Guardian will be asked to provide detailed information relating to the welfare of the Incapacitated Person, including but not limited to:

- address, telephone number; - medical information including last date and reason for doctor’s care,

medications, plan for medical, dental and mental hygiene care; - functional limitations;

- activities of daily living; - information relating to social skills; - social needs; - whether current residence is best; - whether there is any need to modify Guardian’s powers or terminate

guardianship - whether the I.P. has executed a Last Will and Testament and location

thereof

E. EXAMINATION BY COURT EXAMINER:

1. The Court Examiner prepares a “Testimony” based upon the information contained in the Annual Report. It is a question and answer document that expands on the information contained in the Report.

2. The Court Examiner will contact the Guardian to set up a mutually convenient hearing date.

3. The Guardian should expect the Court Examiner to conduct a hearing in his/her office and will expect the Guardian to appear with the following records:

- Cancelled checks and receipts for all expenditures;

- All bankbooks, bank statements, bonds, mortgage and other securities;

- Copies of court orders in Guardian’s possession;

- Insurance policies for your Ward;

−13−

- Income tax returns filed on behalf of your Ward;

- Statement by physician, psychologist, nurse clinician, or social worker who has examined Ward within the 3 months prior to filing of the Report regarding evaluation of condition current functional level and medications taken.

PRACTICE TIP: It is a good idea to prepare in advance for

your meeting with the Court Examiner. Try to arrange your cancelled checks in the manner in which they appear in your accounting. Therefore, group the cancelled checks according to category. This will make the examination go more quickly and smoothly. It is also a good idea to circle the ending balances on the bank statements; if you have bank books, it is advisable to draw a line in the book where you stopped the period — December 31st. This will also help you determine where to begin your next accounting.

4. When the Court Examiner is able to certify, after his/her examination

of the Guardian and inquiry into the assets of the estate, the items of the income and the

expenditures made, that the assets are as stated in the Annual Report, that the items of

the income have been properly collected, that the payments stated to have been made

were proper payments and were appropriate and necessary to the administration of the

I.P.’s estate, then the Court Examiner will recommend to the Court that the account be

approved, and that an order to that effect be entered.

III. INITIAL & ANNUAL REPORTS: AFTER THE EXAMINATION

1. Once the Court Examiner determines that he/she should approve the accounting, the Court Examiner prepares a Report and proposed Court Order providing for the Court Examiner’s fee, Commissions to Guardian (if Guardian is entitled), Attorney and/or Accountant fees, and whether the Guardian should file an increased or decreased bond.

2. Since Article 81 requires that the Court Examiner serves the

−14−

Guardian with a copy of his/her Report on 5 days notice to the Guardian (M.H.L. §81.32(e), the Guardian will receive a copy of the proposed Order and Report with a Notice of Settlement. The date that the Judge can review the Court Examiner’s Report is stated on the Notice of Settlement. If the Guardian objects to the proposed Order and Report, the Guardian has until the date on the Notice of Settlement to submit opposition papers. If there is no opposition, the Judge will sign the order and will fill in the appropriate fees.

3. When the Order is signed, the Court Examiner will serve the Guardian with a copy of the Order. The Guardian will then pay all fees as required, obtain an increased or decreased bond (if ordered) and file the increased/decreased bond at the County Clerk’s Office. IV. FINAL ACCOUNTS: Article 81 has recently been amended and has enacted Section 81.44 which provides that upon the death of the IP, the Guardian shall:

1. Within 20 days of death, file a Statement of Death; 2. Within 150 days of Death, file a Statement of Assets, Notice of

Claim and the Final Accounting.

Read Section 81.44 for ADDITIONAL DIRECTION and information. ____________________________________

1. The filing of a Final Account is appropriate in the following circumstances:

A. The death of the Incapacitated Person;

−15−

B. The assets of the Incapacitated Person have become

depleted;

C. The Guardian can no longer act, and a Successor Guardian must be appointed;

D. The Incapacitated Person has capacity.

2. The Final Account differs from the Initial and Annual Accounts in several aspects:

A. Guardian must make application for permission to file a Final Account setting forth the reason(s) why a Final Account is necessary;

B. The period covered in a Final Account varies:

(a) If annual accounts have already been reviewed and approved, Guardian usually begins the Final Account from the date of the last examined and approved annual account and covers the period through the death of the Incapacitated Person;

(b) If annual accounts have already been reviewed and approved, Guardian may begin the Final account from the date of the last examined and approved annual account and cover the period through the date of preparation of the Final Account (this is usually done when a substantial amount of financial activity took place after the death of the Incapacitated Person (i.e., payment of outstanding nursing home bills, payment of funeral and related costs, etc.).

C. Depending upon your jurisdiction, the Court may require that you prepare your Final Account covering the period from the date of Guardian’s appointment through date of the Incapacitated Person’s

−16−

death, even if all annual accounts have been filed, reviewed and approved by the Court. Please call your Court Examiner to ascertain which method your jurisdiction requires.

D. The Final Account must be judicially settled - notice must be given to all interested parties.

E. The Court usually appoints counsel to represent the Incapacitated Person; this individual reviews the final account and reports to the Court. The Final account is not necessarily reviewed by the Court Examiner.

3. In the case of depleted assets, it is recommended to petition the Court to file a Final account when the assets are reduced to approximately $25,000.00 (this amount varies). In this way, Guardian will retain sufficient funds to make final payments, i.e., Guardian’s commission, attorney/accountant fee, Court Examiner/counsel fee, etc.

1


COUNTY OF KINGS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X

In the Matter of the Initial Report of

: INDEX

#: 123123/12

______MARY SAMPLE__________________

:

As Guardian For INITIAL

REPORT

____ JANE SAMPLE___________________ : OF GUARDIAN

:

COURT EXAMINER:

An Incapacitated Person. PEGGY BARBANEL

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X

I, ________MARY SAMPLE________________________________________residing at 120

Columbia Avenue, Brooklyn, New York 11201A,and with telephone #:718-241-4576, as Guardian for the

above named person, do hereby make, render and file the following Initial Report of Guardian as follows:

1. That the Guardian was appointment by Order of this Court on the 10th day of February, 2012.

That the Guardian has successfully completed all educational requirements under Section 81.39 of the Mental

Hygiene Law by attending class on the 5th day of April, 2012 sponsored by the Richmond County Bar

Association (attach a copy of Certificate issued to Guardian).

2. That the Guardian duly qualified as such Guardian by filing in the Clerk's Office of the County of

Kings a bond in the sum of $200,000.00 with bonding company American Surety Company, Bond

2

#AX234-1987, pursuant to the Order of this Court, and the Commission to Guardian was issued on March 10,

2012.

3. Date, time and place of visits with the Incapacitated Person:

Guardian resides with Incapacitated Person.

4. Provisions for medical, dental, mental health or related services:

- Medical care is provided by I.P,’s personal physician:

Dr. Sharp, 10 Madison Avenue, NY, NY

- IP has regular checkups every 3 months and as needed

- Dental care is provided by I.P.’s personal dentist:

Dr. Wilson, 25 Church Avenue, Brooklyn, NY

- IP visits Dr. Wilson periodically for gum treatments

- IP visits the Alzheimer’s Foundation for bi-monthly check-ups

5. Provisions for social and personal services:

- I.P. attends the JCC and participates in music programs and art programs

- I.P. eats lunch regularly at the JCC and socializes with her friends

- I.P. has physcial therapy once per week

- I.P. goes to the beauty parlor once per week

- I.P. has private home attendants who attend to her activities of daily living

3

6. Application of health and accident insurance as well as

government benefits:

- IP receives GHI health benefits

- IP already receives Social Security and Pension Benefits

7. The following is a true and full account of all assets of the Incapacitated Person that have been

marshaled by Guardian of the Property:

BANK ACCOUNTS:

(List name & address of institution, account numbers and amount of money on hand prior to liquidation by

Guardian):

Citibank, Acct. #26153121 $10,200.50

STOCKS AND SECURITIES:

(List name & address of company, number of shares and fair market value of stock or security as of the date

of appointment):

STOCKS:

100 shares A.T. & T. $ 4,300.00

500 shares Gen. Electric 10,350.00

500 shares Gen. Motors 5,600.00 20,250.00

SECURITIES ACCOUNT:

Merrill Lynch Acct. #25-632-911 135,139.50

4

REAL ESTATE

(List property address, description of property, approximate value, names of tenants, if any, rental income

collected, if any.)

1. Real Property located at

123 Columbia Avenue, Brooklyn, New York

2 family house, approx. value $250,000.00


456 America Street, Staten Island, New York

1 family, approx. value $200,000.00

PERSONAL PROPERTY

(Set forth any jewelry, collectibles, automobiles and cash and set forth approximate value)

2008 Volvo, approximate value $5,000.00

INCOME

(Set forth and identify all sources of income the Incapacitated Person is entitled to receive.)

SOCIAL SECURITY BENEFITS @ 572.00 PER MONTH

Guardian has collected 2 months @ $572.00 so far.

N.Y.C. PENSION BENEFITS @ $385.00 PER MONTH

Guardian has not yet effectuated transfer of the NYC Pension Benefits. Letters have been

written and telephone communications with NYC Pension. Guardian expects to begin collecting the benefits very shortly.

5

DIVIDENDS

A.T. & T.

Gen. Electric

Gen. Motors

MERRILL LYNCH

Interest & Dividends

RENTAL INCOME (120 Columbia)


ASSETS NOT YET MARSHALED

(Set forth all bank accounts, stocks, securities, security accounts not yet marshaled.)

Dime Savings, #11-2510622 $ 21,300.36

DISBURSEMENTS MADE ON BEHALF OF INCAPACITATED PERSON:

(Including disbursements Court Ordered in Order

Appointing Guardian)

Pursuant to Order Appointing dated 2/10/2012

John Ford, Esq., $ 1,500.00

Robert Frost, Court Evaluator 1,000.00

Bond Premiums 1,450.00

Food 100.00

6

CLAIMS AND DEBTS AGAINST THE ESTATE:

n/a

ACTIVITIES PERFORMED ON BEHALF OF I.P.

PURSUANT TO ORDER APPOINTING GUARDIAN:

(EXAMPLE: Relocating IP; Defending IP in legal

proceedings; Performing special tasks including, but not

limited to, housecleaning, Spend down for Medicaid,

home-care services, Temporary Restraining Orders,

Investigations relating to financial exploitation of IP, etc.)

Guardian is in process of making application to sell

property at 456 America Street, Brooklyn, New York

Guardian is also involved in Estate proceeding for

deceased Aunt Jean Smith wherein the IP will

inherit funds

7

STATE OF NEW YORK )

: ss.

COUNTY OF KINGS )

I, ____MARY SAMPLE_________________________________________ being duly sworn, say that

I am the Guardian for the above-named Incapacitated Person; the foregoing initial account and inventory

contain, to the best of my knowledge and belief, a full and true statement of all receipts of the Incapacitated

Person; and of all money and other personal property of said Incapacitated Person which have come to my

hands or have been received by any other persons, by my Order of authority, or for my use since my

appointment, and of the value of all property. I do not know of any error or omission in the Report to the

prejudice of said Incapacitated Person.

___________________________________

GUARDIAN


day of , 2012

____________________________

Notary Public


COUNTY OF KINGS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

In the Matter of the Examination of the

INITIAL REPORT

INDEX NO. 123123/12

MARY SAMPLE NOTICE OF

SETTLEMENT

Guardian of the Person and Property of

JANE SAMPLE

An Incapacitated Person

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

S I R S :

PLEASE TAKE NOTICE, that the within is a true copy of a Report and Order that will

be presented for settlement to the Honorable Judge, one of the Justices of the above-named Court, at

the Courthouse thereof, 360 Adams St., Brooklyn, New York on the 11th day of August, 2013, at 9:30

a.m.

Dated: Brooklyn, New York

August 1, 2013

Yours, etc.,

ROBERT EXAMINER

Court Examiner

26 Court Street, Suite 1405

Brooklyn, New York 11242

(718) 625-1234

TO:

MARY SAMPLE

120 Columbia Avenue

Brooklyn, New York 11201A

Bonding Company

American Surety Company

123 Surety Bond Road

Anywhere, USA 12334

HRA (If IP resides in nursing facility or SNT)


COUNTY OF KINGS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x


INITIAL REPORT

INDEX NO. 123123/12

MARY SAMPLE

REPORT OF EXAMINER


JANE SAMPLE


- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

TO THE JUSTICE PRESIDING

The undersigned Supreme Court Examiner has reviewed the Initial Report filed by the

Guardian of the above-named Incapacitated Person in accordance with Sec. 81.30 of the Mental

Hygiene Law.

The Initial Report sets forth the following information:

ADDRESS OF INCAPACITATED PERSON:

Jane Sample

120 Columbia Avenue


GUARDIAN'S NAME AND ADDRESS:

Mary Sample

120 Columbia Avenue


DATE OF APPOINTMENT:

February 10, 2012

BOND AMOUNT:

$200,000.00

SURETY:


COMMISSION ISSUED:

March 10, 2012

INITIAL REPORT DATED:

June 10, 2012

MARSHALED ASSETS: Citibank, Acct. #26153121 $10,200.50

STOCKS:

100 shares A.T. & T. $ 4,300.00



SECURITIES ACCOUNT:


REAL ESTATE







PERSONAL PROPERTY

2008 Volvo, approximate value $5,000.00

INCOME

SOCIAL SECURITY BENEFITS @ 572.00 PER MONTH


N.Y.C. PENSION BENEFITS @ $385.00 PER MONTH

Guardian has not yet effectuated transfer of the NYC Pension Benefits. Letters have been written and telephone

communications with NYC Pension. Guardian expects to begin collecting the benefits very shortly.

Continued...

DIVIDENDS

A.T. & T.

Gen. Electric

Gen. Motors

MERRILL LYNCH

Interest & Dividends



ASSETS NOT YET MARSHALED

Dime Savings, #11-2510622 $ 21,300.36

DISBURSEMENTS MADE ON BEHALF OF INCAPACITATED PERSON:

(Including disbursements Court Ordered in Order

Appointing Guardian)

Pursuant to Order Appointing dated 2/10/2012




Food 100.00

EDUCATIONAL REQUIREMENTS COMPLETED ON:

April 5, 2012

AS TO PERSONAL NEEDS:

All provisions for social, personal, home care and/or homebound services are provided by

Guardian who resides with the IP; IP has private home attendants who attend to her

activities of daily living. She attends the JCC and participates in music and art programs;

she also eats lunch at the JCC and socializes with her friends. Ms. Sample receives physical

therapy once per week and has regularly schedules medical and dental appointments. She

also visits the Alzheimer’s Foundation for bi-monthly check-ups.

Based upon such examination, the undersigned believes that the said Guardian has properly

complied with the applicable statutes and approves said Initial Report, subject to a more formal

review of the required Annual Account.

Dated: August 1, 2012

_____________________________________

ROBERT EXAMINER,

Supreme Court Examiner

At an IAS, Part 76 of the

Supreme Court, held at

the County Courthouse, KINGS

County, on the day

of 2012.

P R E S E N T :

HON. JUDGE’S NAME ,

Justice.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x


INITIAL REPORT

INDEX NO. 123123/10

MARY SAMPLE O R D

E R


JANE SAMPLE


- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

On reading and filing the Report of ROBERT EXAMINER, one of the Court Examiners duly

appointed by Order of the HONORABLE A. GAIL PRUDENTI, Presiding Justice of the Appellate

Division, Second Department, dated the 8th day of December, 2012 and filed in the Office of the

Clerk of the County of Kings on the 9th day of December, 2012, to examine the accounts and

inventories filed in the Office of the Clerk of Kings County by Committees, Conservators and

Guardians of Incompetent Persons, Patients, Conservatees, and Incapacitated Persons pursuant to

Section 81.32 and former Sections 78.23, 79.17 and 77.29 of the Mental Hygiene Law, which Report

is dated August 12, 2012 duly verified August 12, 2012, hereto annexed, from which it appears that

the assets of the estate are MORE than FIVE THOUSAND DOLLARS, it is

Upon reading and filing the foregoing, it is

ORDERED, that the Initial Report is approved; and it is further

ORDERED, that MARY SAMPLE, Guardian of the Person and Property of JANE SAMPLE,

pay to ROBERT EXAMINER, Court Examiner, from the funds of the Incapacitated Person, the sum

of $_________________ as compensation for his services in the examination of the Initial Report.

______________________________________

J.S.C.

AFFIDAVIT OF SERVICE BY MAIL

STATE OF NEW YORK )

COUNTY OF KINGS ) ss.:

_____________________, being duly sworn, deposes and says:

That deponent is not a party to the within action, is over the age of 18 years and resides in

Brooklyn, New York.

That on the 12th day of August, 2012, deponent served copies of the within Order and Report

upon the individuals/entities at the addresses designated by said individuals/entities for that purpose,

by depositing true copies thereof enclosed in post-paid, property addressed wrappers in an official

depository under the exclusive care and custody of the United States Postal Service within the State of

New York:

MARY SAMPLE

120 Columbia Avenue


Bonding Company


123 Surety Bond Road

Anywhere, USA 12334

(If IP resides in nursing facility or SNT)

HRA OFFICE OF REVENUE & INVESTIGATION

Civil Litigation Division

180 Water Street, 18th Floor

New York, New York 10038

______________________________


12th day of August, 2012

________________________

NOTARY PUBLIC

1


COUNTY OF KINGS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

In the Matter of the Annual Inventory ANNUAL ACCOUNT FOR 2012

and Account of

Index No.: 123123/12

MARY SAMPLE

As the Guardian of the Person

and Property of

JANE SAMPLE,

An Incapacitated Person.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

TO THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF KINGS:

1. I, MARY SAMPLE, as Guardian of the above named Incapacitated Person, do hereby make, render, and file the following

annual inventory and account.

2. On February 10, 2012, I was duly appointed Guardian of the Person and Property of JANE SAMPLE, by Order of this

Court granted by HON. GEORGE JUDGE, and I qualified to act as such Guardian by giving a bond with the American Surety Company

(Bond #AX234-1987) as surety thereon, pursuant to the aforesaid Order in the penal sum of $200,000.00. The surety is in as good financial

standing as when the bond was given.

3. I have acted as Guardian since the date of my qualification and continue to so act.

4. The following is a true and full account of all said Guardian's receipts and disbursements for the period commencing

February 10, 2012 through December 31, 2012.

2

5. SCHEDULE "A" hereto annexed is a statement that sets forth the principal amount as of the date of appointment, February

10, 2012.

6. SCHEDULE "A-1" hereto annexed is a statement of all income which came into my hands on or after February 10, 2012.

7. SCHEDULE "A-2" hereto annexed is a statement of all increases to principal which occurred during the accounting period.

8. SCHEDULE "B" hereto annexed is a statement of all administrative expenses paid by me during the accounting period.

9. SCHEDULE "B-1" hereto annexed is a statement of all disbursements, debts and expenses for care and maintenance paid by

me during the accounting period.

10. SCHEDULE "B-2" hereto annexed is a statement of all decreases to principal which occurred during the accounting period.

11. SCHEDULE "C" hereto annexed is a statement of all assets remaining in my hands as of December 31, 2012.

12. SCHEDULE "D" hereto annexed is a statement of claims against the estate which are limited to unpaid administration

expenses.

13. SCHEDULE "E" hereto annexed is a statement of all changes to the principal account.

14. SCHEDULE "F" hereto annexed is a statement of all personal property and real estate belonging to the Incapacitated Person.

15. SCHEDULE "G" hereto annexed is a statement as to the surety bond.

16. SCHEDULE "H" hereto annexed is personal information relating to the well-being of the Incapacitated Person.

3

SUMMARY STATEMENT

Schedule "A" - PRINCIPAL ACCOUNT $186,890.36

Schedule "A-1" - INCOME RECEIVED $ 27,473.50

Schedule "A-2" - INCREASES TO PRINCIPAL $239,036.70

TOTAL SCHEDULES A, A-1 AND A-2 $453,400.56

Schedule "B" - ADMINISTRATIVE EXPENSES $ 3,950.00

Schedule "B-1" - DISBURSEMENTS $ 55,263.55

Schedule "B-2" - REALIZED LOSSES $ 1,850.00

TOTAL SCHEDULES B, B-2 AND B-2 $ 61,063.55

Schedule C - BALANCE ON HAND $ 392,337.01

Schedule D - CLAIMS AGAINST THE ESTATE

4

SCHEDULE "A"

(Assets As of 2/10/2012)

Assets Marshaled:

A. CASH ON DEPOSIT WITH:

Citibank, Acct. #26153121 $10,200.50

Dime Savings, #11-2510622 21,300.36 $ 31,500.86

B. STOCKS:

100 shares A.T. & T. $ 4,300.00



C. SECURITIES ACCOUNT:


$186,890.36

ADDITIONAL ASSETS:


120 Columbia Avenue

Brooklyn, New York



456 America Street

Staten Island, New York


5

SCHEDULE "A-1"

(Income Received)

BANK INTEREST THROUGH 12/31/12

Citibank $ 532.60

Dime Savings 809.40 $ 1,342.00

SOCIAL SECURITY BENEFITS

4 mo. @ $572. $ 2,288.00

6 mo. @ $585. 3,510.00 $ 5,798.00

N.Y.C. PENSION BENEFITS

4 mo. @ $385. $ 1,540.00

6 mo. @ $390. 2,340.00 $ 3,880.00

DIVIDENDS

A.T. & T. $ 205.00

Gen. Electric 533.00

Gen. Motors 380.50 $ 1,118.50

MERRILL LYNCH

Interest & Dividends (Reinvested) $10,335.00

RENTAL INCOME (123 Columbnia)o

10 mo. @ $500. $ 5,000.00

TOTAL INCOME RECEIVED: $27,473.50

6

SCHEDULE "A-2"

(Increases to Principal)

INCREASES TO PRINCIPAL

1. Pursuant to Court Order dated 6/26/12

Sale of 456 America Street, Staten

Island, New York:

Net Amount Received: $185,000.00

2. Inheritance received from deceased

Aunt, Jean Smith 12.500.00

3. "Realized" increase on sale of:

100 shares A.T. & T.

Received on sale: $6,400.00

Inventory value: - 4,300.00

GAIN OF: 2,100.00

4. "Unrealized" increase in value

of Merrill Lynch account due

to market fluctuations: 39,200.50

5. NYS 2011 Income Tax Refund 200.00

6. Refund from telephone company: 36.20

TOTAL INCREASES TO PRINCIPAL: $239,036.70

7

SCHEDULE "B"

(Administrative Expenses)

Pursuant to Order Appointing 2/10/12




TOTAL ADMINISTRATIVE EXPENSES: $ 3.950.00

8

SCHEDULE B-1

(Disbursements)

Real Estate Expenses, 120 Columbia Ave.

Real Estate Taxes $ 4,590.00

Con Edison 2,200.00

Brooklyn Union Gas (heat) 3,000.00

Verizon Telephone 350.50

Gardener 180.00

Repairs 90.00 $10,410.50

Incapacitated Person's Living Expenses

Food $ 2,000.00

Clothing 1,400.00

Entertainment 262.30

Transportation to Doctors 312.85 $ 3,975.15

Medical Expenses

Dr. Sharp $ 150.00

Prescriptions 2,352.35

Dr. Wilson (dentist) 1,680.00

Diet Foods & Supplements 500.55

Coney Island Hospital 665.00

Podiatrist 150.00 $ 5,497.90

Home Health Aides

Lucy Doe $12,360.00

Roberta Love 14,455.00

Susan Rogers 1,565.00 $28,380.00

John Ford, Esq., Re: Sale

9

of 456 America St., Staten

Island, NY, per C.O. 6/26/12 $ 7,000.00


10

SCHEDULE B-2

(Decreases to Principal)

1. Realized Decrease on sale of:

500 shares Gen. Electric

Inventory value $10,350.00

SOLD FOR - 9,100.00

LOSS OF: ($1,250.00)

2. "Unrealized" Decrease due to

market fluctuations":

500 shares Gen. Motors

Inventory value $ 5,600.00

Value 12/31/10: 5,000.00

LOSS OF: ($ 600.00)

TOTAL DECREASE TO PRINCIPAL: ($1,850.00)

11

SCHEDULE "C"

(Balance on Hand as of 12/31/2012)


Citibank, #26153121 $53,141.69

Dime, #11-2510622 80,520.32

EAB, #77261514 (opened 12/1/12) 69,000.00 $202,662.01

B. STOCKS

500 shares General Motors 5,0000.00

C. SECURITIES:

Merrill Lynch Securities Account

#25-632-911 184,675.00

TOTAL ASSETS: $392,337.01

12

SCHEDULE "D"

(Claims Against the Estate)

1. COMMISSION TO GUARDIAN

To be computed based on SCPA Section 2307

2. LEGAL FEES:

John Ford, Esq., Attorney for Guardian, to be fixed by

the Court.

13

SCHEDULE "E"

(Changes to Principal Accounts)

A. New Account at EAB, #77261514 (Savings

account, opened 12/1/12)

14

SCHEDULE "F"

(Personal Property and Real Estate)

(1) Real Property located at:

120 Columbia Avenue, Brooklyn,

New York 11201, 2 Family House;

1 apartment occupied by Incapacitated Person

and Daughter/Guardian;

Title is in name of Incapacitated Person;

1 apartment is rented to PBSmith for $500 per month;

APPROXIMATE VALUE: $250,000.00

(2) 2008 Volvo, Approx. Value $ 5,000.00

(3) Metropolitan Life Insurance Company

Policy, #3235066

Face Value $ 10,000.00

Beneficiary: Daughter

15

16

SCHEDULE "G"

(Name and Address of Surety)

AMERICAN SURETY

Attn: BETTY ROBERTO

111 John Street

New York, New York 10038

$200,000.00 BOND #AX234-1987

17

SCHEDULE "H"

(As to the Incapacitated Person)

(List here the present address of the I.P.; his/her age; his/her state of health; frequency of visits; changes, if any, in next of kin; whether I.P. has made a Will or executed a Power of Attorney; any

other information necessary for the proper administration of this matter.)

A. PRESENT ADDRESS:

120 Columbia Avenue

Brooklyn, New York 11201

(where she has resided during the entire period under review.)

B. JANE SAMPLE'S AGE:

Ms. Sample is 88 years old, born on 10/1/24.

C. JANE SAMPLE'S STATE OF HEALTH: Ms. Sample suffers from dementia of the Alzheimer's type, hypertension and diabetes. She takes

prescription drugs for high blood pressure and is on a restricted diet for the diabetes. She takes drugs for depression.

D. PRESENT MEDICATION: ABC drug, 250 mg, 2x/day; DEF drug, 50 mg., 3x/day; GHI drug, 250 mg. 1x/day

E. NEXT OF KIN: (name, relationship & address)

MARY SAMPLE, daughter & Guardian, 120 Columbia Avenue, Brooklyn, New York 11201

JOE SAMPLE, son, 100 Dolphin Road, Miami, Florida 33321

F. CHANGES, IF ANY, IN NEXT OF KIN DURING THIS EXAMINATION PERIOD:

There has been no change in next of kin during this period.

G. WHETHER I.P. HAS MADE A WILL: Yes, filed with Surrogate's Court, Kings County

H. WHETHER I.P. HAS EXECUTED A POWER OF ATTORNEY: No.

I. ANY OTHER INFORMATION NECESSARY FOR PROPER ADMINISTRATION: n/a

18

VERIFICATION

STATE OF NEW YORK )

) ss.:

COUNTY OF KINGS )

MARY SAMPLE, being duly sworn, deposes and says:

I am the Guardian of the Person and Property for the above-named person. The foregoing account and inventory contains, to the best of

my knowledge and belief, a full and true statement of all my receipts and disbursements on account of said person for the period February 10, 2012

through December 31, 2012; and of all money and other personal property of said person which have come to my hands or have been received by any

other persons by my order or authority since February 10, 2012, the commencement date of the within accounting, and of the value of all such property,

together with a full and true statement and account of the manner in which I have disposed of the same and of all property remaining in my hands at the

time of filing this account and inventory; also a full and true description of the amount and nature of each investment made by me since my appointment

or since the filing of my last account and inventory.

I do not know of any error or omission in the account and inventory to the prejudice of said person.

_______________________

MARY SAMPLE


_____day of October, 2013.

______________________

________________________________

Notary Public

19

Index No. 123123/2010

SUPREME COURT

COUNTY OF KINGS

============================

IN THE MATTER OF

THE ANNUAL INVENTORY

AND ACCOUNT OF

MARY SAMPLE

AS GUARDIAN OF PERSON AND PROPERTY & PERSON OF

JANE SAMPLE

AN INCAPACITATED PERSON

=============================

ANNUAL INVENTORY AND ACCOUNT FOR

2/10/12 - 12/31/12

=============================

Filed May 1, 2013

20

−1−


COUNTY OF KINGS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

In the Matter of the Annual Inventory TESTIMONY

and Account of

Index No.:

123123/12

MARY SAMPLE


and Property of

JANE SAMPLE,


- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

Brooklyn, New York

Hearing before ROBERT EXAMINER, Court Examiner, appointed pursuant to an Order of the HONORABLE A. GAIL PRUDENTI,

Presiding Justice of the Appellate Division, Second Department, dated December 8, 2012, and filed in the Office of the Clerk of the County of Kings on

December 8, 2012, whereby under the provisions of Section 81.32 of the Mental Hygiene Law, said Court Examiner was directed to examine the

inventories and accounts filed in the Office of the County Clerk of Kings by the conservators, by the committees of the property of incompetent persons,

by the guardians for the incompetent wards of the Veterans Administration and by guardians, in accordance with former Sections 77.29, 78.23 and 78.25

of the Mental Hygiene Law.

The Court Examiner states that he has taken the oath required by law and has procured from the files of the Clerk of the County of Kings, the

accounts filed for the period from February 10, 2012 to December 31, 2012, the Court Examiner's report upon the previous account, if any, and all other

necessary papers.

APPEARANCES: MARY SAMPLE, Guardian of the Person and Property.

−2−

MARY SAMPLE, being first duly sworn, testifies as follows:

Q. You are the Guardian of the Person and Property of JANE SAMPLE, an Incapacitated Person. Are you related?

A. Yes, I am her daughter.

Q. What is your address?

A. 120 Columbia Avenue, Brooklyn, New York 11201

Q. What is your home telephone number?

A. 718-123-4567.

Q. What is your business telephone number?

A. 212-321-7654.

Q. What is your occupation?

A. I am a Registered Nurse at NYC Medical Center.

COURT EXAMINER: It appears from the records on file in the Kings County Clerk's Office that the Guardian was duly appointed by

Order of the Supreme Court, Kings County, dated February 10, 2012, and pursuant thereto, filed the following bonds with AMERICAN

SURETY (#AX234-1987) appointed by Justice Carmine Jones, J.S.C.):

Amount Date Filed

$200,000.00 March 1, 2012

Q. How old is the Incapacitated Person?

A. She is 88 years of age, born on October 1, 1924.

Q. What is her marital status?

A. She is a widow.

Q. What was her occupation prior to her illness?

−3−

A. She was a teacher in the NYC school system.

Q. Where is the Incapacitated Person at the present time?

A. She resides in her own home located at 120 Columbia Avenue, Brooklyn, New York

11201 with 24 hour home health aides.

Q. Who are the heirs at law and next of kin of the Incapacitated Person?

A. Myself, her daughter and Guardian, resides with IP

JOE SAMPLE, son, 100 Dolphin Road, Miami, Florida 33321

Q. Has there been any change in next of kin during this period?

A.

Q. What is the Incapacitated Person's telephone number?

A.

Q. If the I.P. resides in a nursing home or similar facility, what is the name, address, and telephone number of the facility and the name of the chief executive officer or person otherwise responsible for the IP’s care? A. n/a Q. What is the nature and duration of the I.P.'s illness or incapacity? A. Q. Please list the medications and/or treatments taken by the Incapacitated Person? A.

−4−

Q. Has there been any substantial change in medication and/or treatment during this period? If so, please explain and state who has authorized such change? A. Q. Have there been any major changes in the physical or mental condition of the I.P. during this period? If so, please explain. A. Q. Please state the date that the I.P. was last examined or otherwise seen by a physician and the purpose of that visit? A. Q. Pursuant to Article 81, Section 81.31(b)(5), have you provided a statement by a physician, psychologist, nurse clinician, or social worker, or other person that has evaluated or examined the I.P. within the 3 months prior to the filing of your report regarding an evaluation of the I.P.'s condition and the current functional level of the I.P.? A. Q. Please state whether the current residential setting is best suited to the current needs of the I.P.? A. Q. Please list any professional medical treatment given to the I.P. in the preceding year? A. Q. Please state the plan for medical, dental, and mental health treatment, and related services for the coming year? A.

−5−

Q. What social and personal services are currently being utilized by the I.P.? A. Q. What are the social skills of the I.P.? A. Q. What are the social needs of the I.P.? A. Q. What activities have you performed on behalf of the I.P. during this examination period? A. Q. Do you know of any facts indicating the need to terminate your appointment as Guardian or for any alteration in the powers as Guardian (what specific authority is requested or what specific authority of your powers as Guardian will be affected)? A. Q. Have you sent a copy of the annual report to the I.P. by mail and have you filed a copy of the annual report at the Clerk's Office? A. Q. If the I.P. resides in a facility, have you sent a duplicate of your annual report to the chief executive officer of that facility and the mental hygiene legal service of the judicial department in which the residence is located? A. n/a

−6−

COURT EXAMINER: It further appears from the records on file in the Kings County Clerk's Office that the Guardian filed an inventory and account as follows:

On May 31, 2013

COURT EXAMINER: Court Examiner examines Order Appointing Guardian and the Report of the Court Evaluator which states the Incapacitated Person’s assets to be:

Bank Accounts with Citibank and Dime Savings with approximate amount on deposit of: $30,000.00.

Stocks and bonds: unknown number of shares of AT&T, General Electric, General Motors Value unknown

Merrill Lynch Securities Account $132,000.00.

Real Property

Q. What money and/or property did you receive belonging to the Incapacitated Person? A. CASH ON DEPOSIT WITH: Citibank, Acct. #26153121 $10,200.50 Dime Savings, #11-2510622 21,300.36 $ 31,500.86 B. STOCKS: 100 shares A.T. & T. $ 4,300.00 500 shares Gen. Electric 10,350.00 500 shares Gen. Motors 5,600.00 20,250.00 C. SECURITIES ACCOUNT: Merrill Lynch Acct. #25-632-911 135,139.50

$186,890.36 ADDITIONAL ASSETS: 1. Real Property located at 120 Columbia Avenue, Brooklyn, New York 2 family house, approx. value $250,000.00

−7−

2. Real Property located at 456 America Street, Staten Island, New York 1 family, approx. value $200,000.00 Q. What income did you receive during this examination period? A. As follows: BANK INTEREST THROUGH 12/31/12 Citibank $ 532.60 Dime Savings 809.40 $ 1,342.00 SOCIAL SECURITY BENEFITS 4 mo. @ $572. $ 2,288.00 6 mo. @ $585. 3,510.00 $ 5,798.00 N.Y.C. PENSION BENEFITS 4 mo. @ $385. $ 1,540.00 6 mo. @ $390. 2,340.00 $ 3,880.00 DIVIDENDS A.T. & T. $ 205.00 Gen. Electric 533.00 Gen. Motors 380.50 $ 1,118.50 MERRILL LYNCH Interest & Dividends (Reinvested) $10,335.00 RENTAL INCOME (123 Columbia) 10 mo. @ $500. $ 5,000.00 TOTAL INCOME RECEIVED: $27,473.50 Q. Please state the name of the tenant and whether the tenant has signed a lease. If the tenant has signed a lease, what are the terms thereof? A.

−8−

Q. Where there any increases to principal during this examination period? A. Yes, as follows: 1. Pursuant to Court Order dated 6/26/12 Sale of 456 America Street, Staten Island, New York:

Net Amount Received: $185,000.00 2. Inheritance received from deceased Aunt, Jean Smith 12,500.00 3. "Realized" increase on sale of:

100 shares A.T. & T. Received on sale: $6,400.00 Inventory value: - 4,300.00

GAIN OF: 2,100.00

4. "Unrealized" increase in value of Merrill Lynch account due to market fluctuations: 39,200.50 5. NYS 2007 Income Tax Refund 200.00 6. Refund from telephone company: 36.20 TOTAL INCREASES TO PRINCIPAL: $239,036.70 Q. Do you expect any further distributions from the Estate of Jean Smith, deceased aunt of the Incapacitated Person? If so, when and what amount? A.

−9−

Q. Were there any decreases to principal during this examination period? A. Yes, as follows: 1. Realized Decrease on sale of:


Inventory value $10,350.00 SOLD FOR - 9,100.00

LOSS OF: ($1,250.00) 2. "Unrealized" Decrease due to market fluctuations":


Inventory value $ 5,600.00 Value 12/31/02: 5,000.00 LOSS OF: ($ 600.00) TOTAL DECREASE TO PRINCIPAL: ($1,850.00) Q. Who is in possession of the stock certificates? A.

−10−

Q. What were your disbursements during the period under review? Pursuant to Order Appointing 2/10/12 John Ford, Esq., Petitioner’s Attormey $ 1,500.00 Robert Frost, Court Evaluator 1,000.00 Bond Premiums 1,450.00 Real Estate Expenses, 120 Columbia Ave. Real Estate Taxes $ 4,590.00 Con Edison 2,200.00 Brooklyn Union Gas (heat) 3,000.00 Verizon Telephone 350.50 Gardener 180.00 Repairs 90.00 $10,410.50 Incapacitated Person's Living Expenses Food $ 2,000.00 Clothing 1,400.00 Entertainment 262.30 Transportation to Doctors 312.85 $ 3,975.15 Medical Expenses Dr. Sharp $ 150.00 Prescriptions 2,352.35 Dr. Wilson (dentist) 1,680.00 Diet Foods & Supplements 500.55 Coney Island Hospital 665.00 Podiatrist 150.00 $ 5,497.90 Home Health Aides Lucy Doe $12,360.00 Roberta Love 14,455.00 Susan Rogers 1,565.00 $28,380.00 John Ford, Esq., Re: Sale of 456 America St., Staten Island, NY, per C.O. 6/26/08 $ 7,000.00 TOTAL DISBURSEMENTS: $59,213.55 Q. Please give details of the $1,400.00 expended on clothing during this period?

−11−

A. Q. Do utility bills represent IP’s proportionate share of the bills or 100%? If 100% of the

utility bills were paid by the IP, please explain. A. Q. The balance with which the Guardian is chargeable

as of February 10, 2012 of: $186,890.36

Plus the income for this period: + 27,473.50 $214,363.86

Plus: Increases to Principal: +239,036.70

$453,400.56

Less: Decreases to Principal: -( 1,850.00) $451,550.56

Less the disbursements for this period: - 59,213.55 Leaves a balance with which the Guardian is chargeable as of December 31, 2012 of: $392,337.01

Is that correct?

A. Yes, Consisting of the following: CASH ON DEPOSIT WITH: Citibank, #26153121 $53,141.69 Dime, #11-2510622 80,520.32 EAB, #77261514 (opened 12/1/00) 69,000.00 $202,662.01 B. STOCKS 500 shares General Motors 5,0000.00 C. SECURITIES: Merrill Lynch Securities Account #25-632-911 184,675.00 TOTAL ASSETS: $392,337.01

−12−

ADDITIONAL ASSETS (1) Real Property located at:

120 Columbia Avenue, Brooklyn, New York 11201, 2 Family House; 1 apartment occupied by Incapacitated Person & Guardian; Title is in name of Incapacitated Person; 1 apartment is rented to PB Smith for $500 per month APPROXIMATE VALUE: $250,000.00

(2) 2003 Volvo, Approx. Value $ 5,000.00 (3) Metropolitan Life Insurance Company

Policy, #3235066 Face Value $ 10,000.00 Beneficiary: Daughter

COURT EXAMINER: Guardian produces bankbooks and statement of accounts shown above, in name of MARY SAMPLE, as Guardian of the Person and Property of JANE SAMPLE, an Incapacitated Person, showing the interest and balance to be as reported herein.

COURT EXAMINER: C.O. 2/10/12: Guardian authorized to pay John Ford, Esq., $1,500.00 fee as Petitioner’s attorney;

Guardian authorized to pay Robert Frost, Esq., Court Evaluator fee of $1,000.00.

Q. Are all real estate taxes paid to date? A. Q. Is property covered by fire and liability insurance? If so, please explain why your

accounting does not reflect payment of the insurance premiums? A. Q. Have you filed a Notice of Pendency? If so, when? If not, please explain.

−13−

A. Q. How often do you visit the Incapacitated Person?

A. Guardian resides with the Incapacitated Person.

Q. Does the Incapacitated Person own any other real estate, jewelry, or other valuables?

A.

Q. Do you know of any other money and/or property likely to come into your hands as Guardian, other than that already mentioned?

A.

Q. Does your attorney, John Ford, Esq., request a reasonable fee for the preparation of the 2/10/12 to 12/31/12 inventory and account? A.

NOTE: PLEASE ANNEX AN AFFIRMATION OF LEGAL SERVICES, IF REQUESTED.

Q. Does he also request a fee for extraordinary legal services rendered during this period under review? If so, in what amount?

A.

NOTE: PLEASE ANNEX A SEPARATE AFFIRMATION OF EXTRAORDINARY LEGAL SERVICES, IF REQUESTED.

−14−

Q. Do you wish to claim commissions for this period?

A.

IF SO, PLEASE STATE: Your Social Security Number: _____________ Your Telephone Number: ___________ Number of hours__________expended during this examination period with respect to your Guardianship.

Q. Have you evidence of disbursements made during this examination period?

A. Yes.

COURT EXAMINER: Guardian produces evidence of disbursements made during this examination period.

I recommend and shall provide in the proposed Order that the Guardian be directed to file an additional bond of $220,000.00.

_____________________________________ MARY SAMPLE, Guardian

Sworn to before me this day of , 2013 __________________________________ COURT EXAMINER

−1−


COUNTY OF KINGS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

In the Matter of the Annual Inventory COURT EXAMINER’S REPORT

and Account of

Index No.:

123123/12

MARY SAMPLE


and Property of

JANE SAMPLE,


- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

TO THE JUSTICE PRESIDING AT SPECIAL

TERM, PART VI OF THE SUPREME COURT:

ROBERT EXAMINER, one of the Court Examiners, duly appointed by order of the HONORABLE A. GAIL PRUDENTI, Presiding Justice

of the Appellate Division, Second Department, pursuant to the provisions of Section 81.32 of the Mental Hygiene Law, dated Dec. 8, 2012, and filed in

the Office of the County Clerk on Dec. 9, 2012, to examine the annual inventories and accounts filed in the Office of the County Clerk, by Committees

and Conservators of Incompetent Persons, Patients and Conservatees, pursuant to Article 81 and former sections 78.23, 79.17 and 77.29 of the Mental

Hygiene Law.

DO RESPECTFULLY REPORT

That before proceeding with the examination and hearing of the matter so referred to me, I duly took and subscribed the statutory oath as

Court Examiner, which is hereto annexed.

That the account mentioned in this Report was filed in the Office of the County Clerk on May 31, 2012.

−2−

MARY SAMPLE, Guardian of the Person and Property, was appointed on February 10, 2012, and is presently bonded in the total sum of

$200,000.00, said bonds being more fully referred to in the Testimony on page two.

Guardian filed an annual inventory and account on May 1, 2013, and appeared before me on July 1, 2013, and was examined by me as to the

receipts and disbursements during this period and especially as to the assets of the estate, and I caused such testimony to be reduced to writing and

subscribed and sworn to by the Guardian, and respectfully annex the same, to this, my Report.

AS TO THE INCAPACITATED PERSON

It appears from the Testimony that the Incapacitated Person is 88 years of age, born on October 1, 1924, she is a widow, and prior to her

illness, Ms. Sample was employed by the NYC Board of Education as a teacher. She presently suffers from dementia of the Alzheimer’s type,

hypertension and diabetes. Ms. Sample resides in her own home with her daughter/Guardian located at 123 Columbia Avenue, Brooklyn, New York

11201, where she is attended to by 24 hour home attendants.

AS TO THE HEIRS AT LAW AND NEXT OF KIN:

It appears from the Testimony that the following are the heirs at law and next of kin of the

Incapacitated Person:

Mary Sample, her daughter and Guardian,120 Columbia Ave., Brooklyn, New York 11201A

Joe Sample, son, 100 Dolphin Road, Miami, Florida 33321

There has been no change of kin during this examination period.

AS TO THE ACCOUNT:

−3−

From my examination of the accounts filed as aforesaid as to the monies received and the income and disbursements therein set forth, and my

further examination of the assets of the Estate and the Guardian under oath, I find and state the said account as follows:

GUARDIAN SHOULD BE CHARGED WITH:

Balance chargeable as of Feb. 10, 2012 of: $186,890.36

Consisting of the following:


Citibank, Acct. #26153121 $10,200.50

Dime Savings, #11-2510622 21,300.36 $ 31,500.86

B. STOCKS:

100 shares A.T. & T. $ 4,300.00



C. SECURITIES ACCOUNT:


$186,890.36

ADDITIONAL ASSETS:






−4−


FORWARD $186,890.36

INCOME RECEIVED FROM FEBRUARY 10,

2012 THROUGH DECEMBER 31, 2012

BANK INTEREST THROUGH 12/31/12

Citibank $ 532.60

Dime Savings 809.40 $ 1,342.00

SOCIAL SECURITY BENEFITS

4 mo. @ $572. $ 2,288.00

6 mo. @ $585. 3,510.00 $ 5,798.00

N.Y.C. PENSION BENEFITS

4 mo. @ $385. $ 1,540.00

6 mo. @ $390. 2,340.00 $ 3,880.00

DIVIDENDS

A.T. & T. $ 205.00

Gen. Electric 533.00

Gen. Motors 380.50 $ 1,118.50

MERRILL LYNCH

Interest & Dividends (Reinvested) $10,335.00


10 mo. @ $500. $ 5,000.00

−5−

TOTAL INCOME RECEIVED: $ 27,473.50

FORWARD $214,473.50

FORWARD $214,473.50

CHANGES DURING THIS PERIOD:

INCREASES TO PRINCIPAL:

1. Pursuant to Court Order dated 6/26/12

Sale of 456 America Street, Staten

Island, New York:

Net Amount Received: $185,000.00

2. Inheritance from deceased Aunt, J.Smith 12,500.00

3. "Realized" increase on sale of:

100 shares A.T. & T.

Received on sale: $6,400.00

Inventory value: - 4,300.00

GAIN OF: 2,100.00

4. "Unrealized" increase in value

of Merrill Lynch account due

to market fluctuations: 39,200.50

5. NYS 2007 Income Tax Refund 200.00

6. Refund from telephone company: 36.20

TOTAL INCREASES TO PRINCIPAL: $239,036.70

−6−

$453,400.56

DECREASES TO PRINCIPAL:

1. Realized Decrease on sale of:


Inventory value $10,350.00

SOLD FOR - 9,100.00

LOSS OF: ($1,250.00)

2. "Unrealized" Decrease due to

market fluctuations":


Inventory value $ 5,600.00

Value 12/31/10: 5,000.00

LOSS OF: ($ 600.00)

TOTAL DECREASE TO PRINCIPAL: ($ 1,850.00)

FORWARD $451,550.56

FORWARD $451,550.56

GUARDIAN SHOULD BE CHARGEABLE WITH

DISBURSEMENTS DURING SAME PERIOD:

Pursuant to Order Appointing 2/10/2012:




Real Estate Expenses, 120 Columbia Ave.

Real Estate Taxes $ 4,590.00

Con Edison 2,200.00

Brooklyn Union Gas (heat) 3,000.00

Verizon Telephone 350.50

Gardener 180.00

Repairs 90.00 $10,410.50

−7−

Incapacitated Person's Living Expenses

Food $ 2,000.00

Clothing 1,400.00

Entertainment 262.30

Transportation to Doctors 312.85 $ 3,975.15

Medical Expenses

Dr. Sharp $ 150.00

Prescriptions 2,352.35

Dr. Wilson (dentist) 1,680.00

Diet Foods & Supplements 500.55

Coney Island Hospital 665.00

Podiatrist 150.00 $ 5,497.90

Home Health Aides

Lucy Doe $12,360.00

Roberta Love 14,455.00

Susan Rogers 1,565.00 $28,380.00

John Ford, Esq., Re: Sale

of 456 America St., Staten

Island, NY, per C.O. 6/26/12 $ 7,000.00


Leaves a balance with which the Guardian is

chargeable as of December 31, 2012 of: $392,337.01

CONSISTING OF THE FOLLOWING:

CASH ON DEPOSIT WITH:

Citibank, #26153121 $53,141.69

Dime, #11-2510622 80,520.32

EAB, #77261514 (opened 12/1/12) 69,000.00 $202,662.01

−8−

B. STOCKS

500 shares General Motors 5,0000.00

C. SECURITIES:

Merrill Lynch Securities Account

#25-632-911 184,675.00

TOTAL ASSETS: $392,337.01

ADDITIONAL ASSETS

(1) Real Property located at:

120 Columbia Avenue, Brooklyn,

New York 11201, 2 Family House;

1 apartment occupied by Incapacitated Person

And daughter/Guardian;

Title is in name of Incapacitated Person;

1 apartment is rented to PBSmith for $500 per month;

APPROXIMATE VALUE: $250,000.00

(2) 2008 Volvo, Approx. Value $ 5,000.00

(3) Metropolitan Life Insurance Company

Policy, #3235066

Face Value $ 10,000.00

Beneficiary: Daughter

Guardian produced evidence of all disbursements made during this examination period.

CONCLUSIONS AND RECOMMENDATIONS

Pursuant to SCPA 2307, I compute the commissions for this examination period to be as follows:

−9−

On Income of $27,473.50 @ 2-1/2% $ 686.84

In Disbursements of $59,213.55 @ 2-1/2% $ 1,480.34

On Principal Received

& Disbursed of $31,740.05 @ 2-1/2% $ 793.50

On Rental Income $ 5,000.00 @ 5% $ 250.00

TOTAL COMMISSIONS: $ 3,210.68

which sum is allowed to the Guardian subject to the approval of this Court, either upon an intermediate or final accounting.

John Ford, Esq., requests a reasonable fee for the preparation of the inventory and account for period 2/10/12 to 12/31/2012 and requests

$_____ for extraordinary legal services rendered, as set forth in his Affirmation of Extraordinary Legal Services, annexed hereto.

Referee's Disbursements: photocopies

I recommend and shall provide in the proposed Order that the Guardian be directed to file an additional bond of $220,000.00.

−10−

I find and certify, after my examination of the Guardian and inquiry into the assets of the estate, the items of the income and the

expenditures made, that the assets are as stated herein, that the items of the income have been properly collected, that the payments stated to have been

made are proper payments and are appropriate and necessary to the administration of the Incapacitated Person's estate. I accordingly recommend that

the said account as stated by me be approved, and that an order to that effect be entered herein.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Dated: Aug. 1, 2013

_______________________________

COURT

EXAMINER

At an IAS, Part 76 of the

Supreme Court, held at

the County Courthouse, Kings

County, on the

day of

2013.

P R E S E N T :

HON. CARMINE JONES,

Justice.

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Annual Inventory and Account of INDEX NO.

123123/12

MARY SAMPLE

O R D E R


JANE SAMPLE


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On reading and filing the Report of ROBERT EXAMINER, one of the Court Examiners duly

appointed by Order of the HONORABLE A. GAIL PRUDENTI, Presiding Justice of the Appellate

Division, Second Department, dated the 8TH

day of December, 2012, and filed in the Office of the Clerk of the

County of Kings on the 9th day of December, 2012, to examine the accounts and inventories filed in the

Office of the Clerk of Kings County by Committees, Conservators and Guardians of Incompetent Persons,

Patients, Conservatees, and Incapacitated Persons pursuant to Section 81.32 and former Sections 78.23, 79.17

and 77.29 of the Mental Hygiene Law, which Report is dated August 1, 2013, and on reading and filing the

Affidavit of said Court Examiner as to his services in this matter, duly verified August 1, 2013, hereto

annexed, from which it appears that the assets of the estate are MORE than FIVE THOUSAND DOLLARS, it

is

ORDERED, that the Report of said Court Examiner, be and the same is in all respects confirmed, and

it is further

ORDERED, that MARY SAMPLE, Guardian of the Person and Property of JANE SAMPLE, an

Incapacitated Person, pay to ROBERT EXAMINER from the funds of said Incapacitated Person, in her hands

as Guardian, the sum of $______________ DOLLARS, which sum is allowed to him as Court Examiner for

his services, and $50.00 for stenographic services and disbursements, in such examination of said account for

the period from Feb. 10, 2012 to December 31, 2012, as provided by Section 81.32 and former Section 78.25

of the Mental Hygiene Law, and it is further

ORDERED, that the Guardian's Commissions for period Feb. 10, 2012 to December 31, 2012 be and

the same are hereby fixed in the sum of $3,210.68, and the Guardian is authorized and permitted to withdraw

said amount; and it is further

ORDERED, that the Guardian is authorized and permitted to pay to JOHN FORD, ESQ. the sum of

$_______________ for the preparation of the inventory and account for period Feb. 10, 2012 to December 31,

2012; and it is further

ORDERED, that the Guardian is authorized and permitted to pay to JOHN FORD, ESQ., the

additional sum of $_________________ for extraordinary legal services rendered during this examination

period as set forth in his Affirmation of Extraordinary Legal Services; and it is further

ORDERED, that the Guardian is directed to file an additional bond of $220,000.00, provided,

however, that the total aggregate premium shall not exceed that of a $420,000.00 bond.

E N T E R

__________________________________

J.S.C.


COUNTY OF KINGS

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In the Matter of the Examination of the AFFIDAVIT

Annual Inventory and Account of

OF

COURT EXAMINER

MARY SAMPLE


JANE SAMPLE


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STATE OF NEW YORK - COUNTY OF KINGS: ss.:

ROBERT EXAMINER, being duly sworn, deposes and says:

I am one of the Court Examiners duly appointed by Order of the HONORABLE A. GAIL PRUDENTI,

dated Dec. 8, 2012, and filed in the Office of the Clerk of Kings County on Dec. 9, 2012, to examine the

annual accounts of Committees, Conservators, and Guardians of Incompetents, Patients, Conservatees, and

Incapacitated Persons.

The Guardian filed an account covering the period under review and attended before me and was

examined by me under oath, in regard to all matters relating thereto.

I caused such examination to be reduced to writing and subscribed and sworn to by said fiduciary. I

have examined the receipts for disbursements made during the period by the fiduciary and the Securities, if

any, in which funds are invested. I have prepared by Report, which with the Testimony taken is submitted

herewith.

The assets of the estate amounts to $392,337.01.


___ day of _____________________, 2013

_______________________________ _______________________________

NOTARY PUBLIC COURT EXAMINER


COUNTY OF KINGS

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Annual Inventory and Account of COURT

EXAMINER'S OATH

MARY SAMPLE


JANE SAMPLE


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STATE OF NEW YORK - COUNTY OF KINGS: ss.:

ROBERT EXAMINER, a Court Examiner duly appointed pursuant to the provisions of Section 81.32

and former Section 78.25 of the Mental Hygiene Law, by Order of the HONORABLE A. GAIL PRUDENTI,

Presiding Justice of the Appellate Division of the Supreme Court, for the Second Judicial Department, dated

December 8, 2012, and filed in the Office of the County Clerk on December 9, 2012, to examine the accounts

and inventories filed or required to be filed in the Office of the County Clerk, according to Article 81 and

former Sections 77.29, 78.23, 78.25, and 79.17 of the Mental Hygiene Law, by Committees, Conservators,

and Guardians of Incompetent Persons, Patients, Conservatees, and Incapacitated Persons, which have not

been previously examined or judicially settled.

DO SOLEMNLY SWEAR, that I will faithfully and fairly perform all duties as Court Examiner under

said aforementioned order and will faithfully and fairly determine the questions referred to me, and make a

just and true report, according to the best of my understanding.


___ day of ______________, 2013

___________________________ __________________________

NOTARY PUBLIC COURT

EXAMINER


COUNTY OF KINGS

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Annual Inventory and Account of INDEX NO.

123123/08

MARY SAMPLE

NOTICE OF

SETTLEMENT


JANE SAMPLE


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S I R S :

PLEASE TAKE NOTICE, that the within are true copies of an Order and Report that will be

presented for settlement to the Honorable Carmine Jones, one of the Justices of the above-named Court, at the

Courthouse thereof, 360 Adams Street, Brooklyn, New York on the ___ day of ______________, 2013, at

9:30 a.m.

Dated: Brooklyn, New York

__________________

Yours, etc.,

ROBERT EXAMINER, ESQ.

Court Examiner

26 Court Street, Suite 3232

Brooklyn, N.Y. 11242

(718) 852-4567

TO:

MARY SAMPLE

120 Columbia Avenue


BONDING COMPANY

AFFIDAVIT OF SERVICE BY MAIL

STATE OF NEW YORK )

COUNTY OF KINGS ) ss.:

ROBERT CAMEO, being duly sworn, deposes and says:

That deponent is not a party to the within action, is over the age of 18 years and resides in Brooklyn,

New York.

That on the ___ day of ______________, 2013, deponent served copies of the within Order and

Report upon MARY SAMPLE, Guardian of JANE SAMPLE, at 120 Columbia Avenue, Brooklyn, New York

11201A, and the SURETY (plus address) the address designated by said Guardian and Surety for that

purpose, by depositing true copies thereof enclosed in post-paid, properly addressed wrappers in an official

depository under the exclusive care and custody of the United States Postal Service within the State of New

York.

______________________________

ROBERT CAMEO


___ day of ________________, 2013

________________________

NOTARY PUBLIC

Orientation to Medical Terminology 9

Faculty Biographies

WILKINS, LOTTIE E.

Justice Wilkins is a graduate of CCNY and Columbia Law School. She was admitted to practice law in New York State, the

Southern and Eastern Districts of New York, and before the United States Supreme Court.

Her previous legal experience included Civil Court, City of New York; assigned to Bronx Civil and Bronx Supreme Court;

private practice for eight (8) years, extensive trial practice in Civil, Family, Housing Courts and Civil Litigation; Law Clerk to various

Supreme Court Justices including Justice Bruce M. Wright and Justice Alvin Schlessinger.

She was first elected to the NY Civil Court in 1989 and then elected to the NY Supreme Court in 1991, and re-elected in 2006.

She has been assigned to Guardianship matters for the last five (5) years.