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Conservatorship Contests

BY: EDWARD D. LOUGHMAN, III*

Although the bulk of conservatorship or incompetency1 proceedings are not contested2 and, indeed, may be brought on by the one alleged to be in need of a conservatorship,3 the practitioner facing a contest may be surprised at the difficulties. Not only is the burden of proof greater than the normal civil proceeding but other evidentiary and substantive problems may be confronted as well.

Any conservatorship or incompetency proceeding is at least nominally adversarial. The proposed conservatee may appear at the hearing and contest and a guardian ad litem is often appointed4 to represent the proposed conservatee at each stage of the proceedings. Especially when the proposed conservatee is elderly and whose facilities are waning, the guardian will not oppose the proceeding but merely scrutinize the proceedings and aid the court in making sure that the allegations are correct, that the conservatee is in need of a conservatorship and that the proposed conservator is proper. When the proposed conservatee is not obviously incapable of managing his or her own affairs, however, such as someone whose impairment is mental illness or drunkenness, rather than senility, or where two camps are fighting to be appointed, the proceeding can become quite adversarial. It is those types of situations which are the subject of this article.5 The issues addressed are the general procedure, the burden of proof of both impairment and the need for a conservator-ship, and the evidentiary problems if the proposed conservatee or his representative invokes the physician/patient or similar privilege.

Procedure

A conservatorship proceeding is a special proceeding. To the extent not superseded by article 77 of the Mental Hygiene Law, article 4 of the CPLR applies.6 Accordingly, the parties rights to add parties7 or conduct discovery8 are severely limited. Motion practice is usually limited to injunctive relief9 or summary dismissal if no triable issues of fact are raised.10 Any party may demand a jury trial but failure to demand a jury on or before the return day constitutes a waiver thereof.11

Dual Burden of Proof

In order to obtain appointment of a conservator, the petitioner must prove, by clear and convincing evidence, that there is a need for a conservatorship and that the proposed conservatee "has suffered substantial impairment, of his ability to care for his property or has become unable to provide for himself or others dependent upon him for support. . . ."12 Not only is such a burden of proof greater than the usual "preponderance of the evidence" standard, but the burden is two-fold. The petitioner must show both need for a conservatorship and substantial impairment. The burden is further complicated by evidentiary problems if the proposed conservatee invokes the physician/patient or other privilege.

Moreover, the petitioner must show that the impairment exists at time of trial, not merely in the recent past13 or even when the petition is verified. This can be particularly problematic if the proposed conservatee enters a period of lucidity at trial or when interviewed by the guardian ad litem.

a) Proof of need for Conservatorship

The statute requires proof of both the need for a conservator-ship and proof that the proposed conservatee has suffered a substantial impairment of his abilities. A mere showing of substantial impairment without a showing of the need for the conservatorship is not enough.14 This distinction is important in situations in which the proposed conservatee has already conserved his assets by the creation of an inter vivos trust or where there are no assets to conserve.

In Matter of Forward15 the Appellate Division Second Department overturned the lower court and granted summary dismissal of the conservatorship proceeding because the 88 year old proposed conservatee had recently executed an irrevocable trust (presumably of all her assets) with a bank and trust company with herself as lifetime beneficiary. The Second Department reasoned that, even if she had suffered a substantial impairment of her abilities, there was no need for a conservatorship because the trust would ensure that her property would be conserved for the rest of her life. The Court cited a Third Department case, Matter of Wuillamey,16 which had dismissed an incompetency proceeding on the grounds that the proposed incompetent had already assigned all her assets to her cousin in trust.

One year later, the Second Department in Matter of Waxman,17 granted summary dismissal of a conservatorship proceeding because the proposed conservatee had transferred all his assets to his attorney in trust.18

Conceivably, this defense could be extended to proposed conservatees having little or no assets whose income is already directed toward their needs. For example, someone confined to a nursing home existing on medicaid and social security might not be in need of a conservator, no matter how impaired they were.19

Even if a trust exists, however, a conservatorship might be needed under certain circumstances. For example, if the trust were revocable it could be argued that because revocation would restore the proposed conservatee to possession of his assets, the trust is not adequate protection.20 Similarly, if the trust did not contain all the proposed conservatee's assets, there would still be assets to conserve. One could argue the need for a conservatorship despite the existence of a trust or the lack of assets to conserve, if the issue were the care of the proposed conservatee's physical well-being in which a conservator could have authority and responsibility beyond that of a trustee. Although control of the purse strings often effectively means control of the person, a conservator, unlike a trustee, could make contracts on a conservatee's behalf and void inappropriate contracts made by the conservatee.

b) Proof of Substantial Impairment

1) Specific factual allegations required

Furthermore, proof of substantial impairment cannot be shown merely by conclusory allegations but only by specific factual allegations. Matter of Waxman further held that the conclusory allegations of the petition buttressed only by an unsworn letter by a psychiatrist were insufficient to prevent dismissal.21 Although mere letters from doctors are often sufficient in uncontested proceedings provided the doctor later testifies under oath at the hearing, they are apparently insufficient to withstand a motion for summary dismissal. This problem, however, may be obviated by having the doctor affirm his report under penalty of perjury thereby elevating it to the status of an affidavit.22 In any event, care must be taken to specifically allege facts in support of substantial impairment and not just conclusions.

2) Evidentiary Privileges

Proof of facts in support of substantial impairment can be made difficult if not impossible by the assertion of the physician/patient,23 psychologist/client24 or social worker/client25 privileges. If raised and upheld, these privileges could effectively preclude a petitioner from ever prevailing in a contested proceeding as the proposed conservatee's medical records become unavailable and his doctors silenced. Although the privileges laudably hinder frivolous proceedings and offer considerable protection to privacy, they can be problematic when the proposed conservator truly needs a conservatorship but refuses, perhaps as a result of the very mental illness which substantially impairs him.

Although one affirmatively placing his mental or physical condition in issue is deemed to waive the privilege,20 one merely opposing such allegations does not waive the privilege and, hence, may assert it.27 Although some loosening of the privileges had been seen in the trial courts and Appellate Division, when the defendant's condition is clearly in controversy,28 the Court of Appeals' recent 4-3 decision in Dillenbeck v. Hess29 has tightened the privilege. Dillenbeck's impact on a more particular line of cases, relevant to conservatorships, however, remains unclear.

In Dillenbeck, plaintiff sought discovery of a diagnostic blood test taken of defendant shortly after the motor vehicle accident which was the subject of the lawsuit. Plaintiff contender that it would show defendant to be legally intoxicated. Although the defendant's physical and mental condition was clearly in controversy, defendant had not placed it in controversy and so had not waived his physician/patient privilege.30 Hence, the results of the blood test were not discoverable-As a practical matter, however, the defendant's conviction for criminally negligent homicide31 should have been admissible. Hence there was no compelling need for he blood test.

Previously, however, courts had extended Koump v. Smith32 under certain circumstances finding an implicit waiver in he privilege or limiting it in cases involving child custody,33 annulment34 and conservatorship or incompetency proceedings.35

Child custody proceedings have based the waiver in the argument that the best interest of the child is greater than the privilege.36 Clearly, affirmatively seeking custody puts the petitioner's mental and physical condition in controversy. Similarly, opposing a custody battle puts one's mental and physical fitness in sue.37 Unlike the defendant merely denying his negligence, one opposing another's application for custody is really claiming to be more fit than the petitioning parent,38 thereby affirmatively placing their medical and psychological condition in issue.39

Dillenbeck appears to overrule Supreme Court Queens County's finding that the defendant waived the privilege by merely denying fraud in the annulment case of Jansons v. Jansons.40 Although dis closure was also based on Section 20 (now §33.13) of the Mental Hygiene Law, which allowed a mental health facility to release records, despite their general confidentiality, upon a court order finding "that the interest of justice significantly outweighs the need for confidentiality. . . ."41 The statute does not address the admissability of the records. Especially since article 33 of the Mental Hygiene Law is entitled "Patient Rights," it is unlikely that the legislature intended to limit the patient's rights to confidentiality. Perhaps, however, petitioner's expert could use the inadmissable records to support his conclusions at trial.

Even before Dillenbeck, courts were divided over whether the privilege could be asserted in incompetency or conservatorship cases. Two New York County cases reached opposite results. In Matter of Alien42 the court admitted, over objection, the affidavit of the former physician on the ground that the privilege did not apply to incompetency proceedings. Moreover it could be argued that the facts and information that formed the basis for the affidavit were not obtained in the course of treatment of the proposed incompetent. Twenty years later, Alien was rejected as equivocal and the guardian ad litem's objection sustained in Matter of J.D.,43 a conservatorship proceeding. The Court stressed the vigorous opposition of the proposed conservatee and the policy reasons behind the privilege. The only appellate authority appears to be Matter of Gates,44 decided in 1915 which found it indelicate for the personal physician to testify against the proposed incompetent and upheld the privilege. However, as one court observed in 1891 "[n]o physician can be better qualified to testify to the sanity or insanity of a person than he who has for some time attended such person on a professional capacity. Indeed, the cases are not rare where none but an attending physician could intelligently testify as to a person's mental condition."45

Under the Court of Appeals' strict interpretation of the privilege in Dillenbeck it appears that a proposed conservatee, or his guardian ad litem, may exert the privilege and preclude the testimony of a treating physician, social worker, nurse or psychiatrist. Although petitioner's medical expert, as long as he rendered no treatment,46 could render an opinion of the proposed conservatees condition, unless the proposed conservatee cooperated and allowed an examination and review of prior medical records, his opinion would be of limited utility.47

Despite the apparently strict result of Dillenbeck, other avenues may prove fruitful. First, the role of the guardian is critical. If the guardian is convinced that his ward suffers from a substantial impairment, he might waive the privilege, whether expressly or by merely not raising it.48 Second, the privilege may be waived by the proposed conservatee. It is not an uncommon impulse for someone charged with incompetence to attempt to prove competence. Once the door is opened by the proposed conservatee putting forth evidence of competence or lack of impairment, the privilege may no longer be asserted.49

Finally specific exceptions to the privilege should be investigated. For example, statements to a social worker which revealed an intent or inclination toward wasting assets would arguably involve the contemplation of a harmful act and be an exception to the social worker/client privilege.50 Similarly the same argument could be made against the psychiatrist/client privilege. Although the exception is not expressed in the statute, disclosure to avoid harm has been not only permitted but required in other jurisdictions.51 Moreover, the statute equates the psychologist/client privilege to the attorney/client privilege.52 Thus the privilege will not apply if third parties are present during the allegedly confidential communications.53 Similarly, the privilege protects only confidential communications not the mere facts and incidents of a person's medical history.54

In many instances, however, the privilege must be squarely addressed. If upheld, petitioner would be virtually precluded from showing clear and convincing evidence of substantial impairment; if not upheld, the proposed conservatee's confidences are revealed.

In such a position, while the guardian stresses the need to maintain confidentiality, counsel for the petitioner should argue that the statutorily created privilege should not be invoked to prevent the court from carrying out its equitable duty as parens patriae to identify and protect those people whose ability to manage their own affairs has been substantially impaired55 and that some flexibility is needed.51 As the guardian ad litem is the eyes and ears of the court, the court could, on a proper showing, compel the guardian to waive the privilege, perhaps allowing disclosure to be limited to the parties and their experts. In order to obtain this extraordinary relief, counsel should be required to make a showing following criteria silimar to those required used on application for a preliminary injunction: likelihood of success on the merits, irreparable injury without the relief and, a balancing of the equities.57 Thus not only would the party seeking to avoid the privilege have to show a meritorious case, it would also have to show that waiving the privilege was necessary to sustain its burden of clear and convincing evidence and that the harm disclosure would bring to the proposed conservatee would be outweighed by the need for the conservatorship. By this method, the confidentiality of the physician/patient, psychologist/client or social worker/client privileges would not be unduly threatened, the court would not run afoul of Dillenbeck and the valid conservatorship proceeding would not be rendered impossible.

CONCLUSION

At both the pleading and proof stage, petitioner in a contested conservatorship proceeding must allege and prove facts sufficient to show clear and convincing evidence of both a substantial impairment of the proposed conservatee's ability to manage his own affairs and that there is a need for a conservatorship to manage the proposed's financial affairs. At trial the physician/patient or related privilege may become problematic and a creative approach is needed to satisfy the court that the mandates of Dillenbeck are met and the purpose of the privilege preserved while still allowing the court to protect a deserving conservatee by the appointment of a conservator.

© Westchester County Bar Association 1989 reprinted with permission


*Member of the firm Muldoon, Horgan & Loughman. New Rochelle. New York.

1This article would be equally applicable to incompetency proceedings covered under article 78 of the Mental Hygiene Law. The burden to declare someone incompetent, however, is more difficult and perhaps impossible except in extraordinary cases. In order to sustain a petition for incompetency, the petitioner must show that a conservatorship would not suffice. Mental Hygiene L. §78.02. Because the court may give a conservator all the powers of a committee, Mental Hygiene L. §77.19, it may be impossible to convince a court that a declaration of incompetency is necessary. E.g., Matter of Spencer (Winger), N.Y.L.J., 10/22/86, p. 11, col. 4 (Sup. Ct. N.Y. Co. 1986). Although one court has determined that an incompetency proceeding is required to address the issue of termination of extraordinary life-sustaining means, Matter of Eichner, 102 Misc. 2d 184, 423 N.Y.S. 2d 580 (Sup. Ct. Nassau 1979). modified, 73 A.D. 2d 431, 426 N.Y.S. 2d 517 I2d Dep't 1980), modified sub nom. Matter of Storar, 52 N.Y. 2d 363. 438 N.Y.S. 2d 266 (1981); another court has so proceeded via an existing conservatorship proceeding. Matter of Delia, 129 A.D. 2d 1, 516 N.Y.S 2d 677 (2d Dep't 1987).

2In Westchester County fewer than 5% of the proceedings contest the need for a conservatorship. Perhaps 25-3% of the proceedings involve, at least initially, some dispute as to who the conservator should be. Telephone conversation. June 23, 1989 with William Pohlmann, Principal Law Clerk to the Honorable Anthony J. Cerrato, Justice Supreme Court.

3Mental Hygiene L. §77.03(a)(l).

4Mental Hygiene L. §77.09. If the Court finds that the proposed conservatee is incapable of understanding or, for other reasons, should not attend the hearing, the court must appoint a guardian ad litem unless the court finds that the proposed conservatee is adequately represented by his own counsel or by the Mental Hygiene Legal Service. Mental Hygiene L. §77.07(b).

5For a more comprehensive general discussion of conservatorships see G. Hall, "Appointment of a Conservatorship-A Useful Tool," 8 Westchester Bar J. 217 (1981).

6CPLR §101.

7CPLR §401.

8CPLR §408.

9Mental Hygiene L. §77.08. Note that it is not available against the proposed conservatee. Id. §77.08(a)(3).

10CPLR §409. Although there is case law to the effect that summary judgment is also available, it is not substantially different from the relief provided by CPLH 409. Matter of Sailors Snug Harbor, 26 N.Y. 2d 444, 311 N.Y.S. 2d 486 (1970).

11Mental Hygiene L. §77.07.

12Mental Hygiene L. §77.01 (1); Matter of Bailey, 46 A.D. 2d 945, 362 N.Y.S. 2d 226 (3d Dep't 1974).

13Matter of Ernst, 271 A.D. 1059, 69 N.Y.S. 2d 184, 185 (4th Dep't 1947) (incompetency proceeding).

14Matter of Waxman, 96 A.D. 2d 906, 466 N.Y.S. 2d 85 (2d Dep't 1983); Matter of Forward, 86 A.D. 2d 850, 447 N.Y.S. 2d 286 (2d Dep't 1982); Matter of Forst, 53 A.D. 2d 842. 385 N.Y.S. 2d 558 (1st Dep't 1976).

1586 A.D. 2d 850, 447 N.Y.S. 2d 286 (2d Dep't 1982).

167 A.D. 2d 130, 180 N.Y.S. 2d 961 (3d Dep't 1958), modified, 8 A.D. 2d 749, 185 N.Y.S. 2d 792 (3d Dep't 1959). (Upon modification the court directed the trustee to report annually to the Court.)

1796 A.D. 2d 906, 466 N.Y.S. 2d 85 (2d Dep't 1983).

18Subsequently the petitioners sought to set aside the trust based upon purported revocations thereof and questioned its inital validity. The Appellate Division found that its earlier dismissal had not passed on the validity of the trust and remanded it for a hearing on that issue. Matter of Waxman, 110 A.D. 2d 644, 487 N.Y.S. 2d 381 (2d Dep't 1985).

19See New York City Health & Hospitals Corp. v. German, 113 Misc. 2d 33, 448 N.Y.S. 2d 623 (Sup. Ct. N.Y. Co. 1982); Matter of Stone, 86 Misc. 2d 416, 382 N.Y.S. 2d 607 (Sup. Ct. N.Y. Co. 1976) (only asset: a cause of action; nothing yet to conserve and guardian ad litem can prosecute action); but see Matter of Wolinsky, 101 A.D. 2d 866, 476 N.Y.S. 2d 15 (2d Dep't 1984) (Appellate Division reversed Special Term's discharge of the conservator and direction to the pension plan to make its payments directly to the conservatee's nursing home. As the conservatee still had regular income, there was still something to conserve.)

20A competent trustee faced with such a scenario, however, would likely petition the court to assess the grantor's competence to revoke or seek a conservatorship prior to turning over any assets.

21Matter of Waxman, 96 A.D. 2d 906, 466 N.Y.S. 2d 85 (2d Dep't 1983).

22CPLR §2106.

23CPLR §4504. See generally 8 Carmody-Wait 2d, "New York Practice" §§ 56:91-56:94.2 (1966 & 1989 Supp.).

24CPLR §4507.

25CPLR §4508.

26Koump v. Smith, 25 N.Y. 2d 287, 303 N.Y.S. 2d 858 (1969).

27Dillenbeck v. Hess, 73 N.Y. 2d 278, 539 N.Y.S. 2d 707 (1989).

28E.g., Maharam v. Maharam, 123 A.D. 2d 165. 510 N.Y.S. 2d 104 (1st Dep't 1986) (herpes test of defendant in divorce action ordered): Shalhoub v. Virerito. 133 Misc. 2d 765, 508 N.Y.S. 2d 135 (Sup. Ct. Queens 1986) (herpes test ordered on defendant alleged to have given herpes to plaintiff).

2973 N.Y. 2d 278, 539 N.Y.S. 2d 707 (1989).

30Id.

31Id. at 282 n.2, 539 N.Y.S. 2d at 709 n.2.

3225 N.Y. 2d 287, 303 N.Y.S. 2d 858 (1969).

33Perry v. Fiumano, 61 A.D. 2d 512 . 403 N.Y.S. 2d 382 (4th Dep't 1978).

34Jansons v. Jansons, 45 Misc. 2d 795. 257 N.Y.S. 2d 703 (Sup. ( . Queens 1968).

35Matter of Alien, 24 Misc. 2d 763. 204 N.Y.S. 2d 876 (Sup. Ct. N.Y. Co. 1960).

36E.g., Perry v. Fiumano. supra.

37Baecher v. Baecher, 58 A.D. 2d 821. 396 N.Y.S. 2d 447 (2d Dep't 1977).

38E.g., Eschbach v. Eschbach, 56 N.Y. 2d 167, 174, 451 N.Y.S. 2d 658, 662 (1982).

39See Matter of J.D., 107 Misc. 2d 288, 433 N.Y.S. 2d 717, 718 (Sup. Ct. N.Y. Co. 1980).

4045 Misc. 2d 795, 257 N.Y.S. 2d 703 (1968).

41Mental Hygiene L. §33.13(c)(l). If the hospitalization, however, involved treatment for drug or alcohol abuse, federal confidentiality rules may prevent or limit disclosure. 42 U.S.C. §290ee-3; (drug abuse): 42 U.S.C. §920dd-3 (alcoholism); 42 CFR §§ 2.1 et seq.

4224 Misc. 2d 763, 204 N.Y.S. 2d 876 (Sup. Ct. N.Y. Co. 1960).

43107 Misc. 2d 288, 433 N.Y.S. 2d 717 (Sup. Ct. N.Y. Co. 1980).

44170 A.D. 921, 154 N.Y.S. 782 (3d Dep't 1915).

45Matter of Benson. 16 N.Y.S. 111, 112 (Co. Ct. Monroe 1891).

46If the examining physician rendered any treatment, he conceivably would be silenced by the privilege.

47E.g., Matter of Slade, 106 A.D. 2d 914, 483 N.Y.S. 2d 513. 515 (4th Dep't 1984) testimony of doctor who did not examine the patient "is the weakest and most unreliable evidence").

48E.g., Cook v. Cook, 8 A.D. 2d 964, 190 N.Y.S. 2d 955 (1959). An interesting issue would be raised if the proposed conservatee refused to agree with the guardian's waiver. If an involuntarily committed insane person is not per se incompetent to refuse psychotropic drugs, Rivers v. Katz, 67 N.Y. 2d 485, 504 N.Y.S. 2d 74 (1986); is not a not-yet-declared-impaired person competent to refuse to waive the privilege?

49Koump v. Smith, 25 N.Y. 2d 287, 303 N.Y.S. 2d 858 (1969); Steinberg v. New York Life Insurance Co., 263 N.Y. 45 (1933); Matter of Postley, 125 Misc. 2d 416, 479 M.Y.S. 2d 464 (Surr. Ct. Nassau 1984).

50CPLR 4508.

51E.g., Tarasoff v. Regents of the University of California, 131 Cal. Rept. 14, 55 P. 2d 334 (1976).

52CPLR 4507.

53People v. Borcsok, 107 A.D. 2d 42, 485 N.Y.S. 2d 766 (2d Dep't 1985).

54William v. Roosevelt Hospital, 66 N.Y. 2d 391, 396, 497 N.Y.S. 2d 348, 351 1985).

55E.g., Matter of Eichner, 73 A.D. 2d 431, 426 N.Y.S. 2d 517, 534 (2d Dep't 1980), modified sub nom. Matter of Storar, 52 N.Y. 2d 363, 438 N.Y.S. 2d 266 (1981).

56M. Martin, "Evidence: Waiver of Physician-Patient Privilege," N.Y.L.J., 10/14/88, p. 3, col. 1.

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