By Laura Lane
The 79-year-old woman had never been in a courtroom. Recently widowed, she gripped the handles of her wheelchair and stared straight ahead, appearing disoriented and frightened.
Her son wheeled her in. She was one of the parties in the O. Gural guardianship hearing before Supreme Court Justice H. Patrick Leis III, Suffolk County's administrative judge.
"Do you need any hearing assistance? Are you able to understand what I'm saying?" Leis asked the woman. "Concentrate on me and don't worry about anyone back there. My job is to protect you."
Since March 2005, Leis has presided over Suffolk's model guardianship part, a special court that protects the interests of incapacitated people, those who are unable to provide for their needs, including food, shelter, health care or safety, or manage their property and financial affairs. It was created at the behest of Chief Justice Judith Kaye and established by the Office of Court Administration. It has been so successful that it was expanded this year to Queens County.
When people envision their golden years, they probably don't imagine ending up in court. But for many, avoiding a court appearance is all but impossible. A guardianship proceeding is necessary to protect people who become mentally or physically incapacitated and have no family or friends to care for them, or their family members may argue over who should be the caretaker. People typically find themselves in guardianship court because they neglected to obtain the legal protections of a health proxy and a power of attorney
(see box).
Guardians are often relatives, but not necessarily. They can also be family friends. In some cases, the person in need of a guardian may require the court's intervention to stop someone from abusing him or her.
Article 81 of the New York State Mental Hygiene Law protects those who cannot protect themselves. It directs the court to designate guardians for incapacitated people.
"Physical ailments can be the direct road to a guardianship," said Nassau County Supreme Court Justice Joel Asarch, who handles many guardianship cases. "But other times, someone is taken to the cleaners by a third party. A lot of times the person is in the hospital, and the hospital is uncomfortable discharging them without someone to discharge them to."
One key component of the Suffolk and Queens model parts is the integration of all pending cases involving an incapacitated person before a single judge, whereas previously they may have been heard by any number of judges, each of whom presided over a different aspect of the case, from financial matters to a divorce.
"The alleged incapacitated person can come to court and have all of those issues addressed instead of having to go from court to court," explained Deputy Chief Administrative Justice Ann Pfau. "And the judge knows the family, the circumstances, the issues, and can effectively work with the different parties to get things resolved for stability for the alleged incapacitated person."
Nassau County guardianship court follows the traditional model, with various judges overseeing a case. Anthony Marano, Nassau's administrative judge, hopes that will change in the near future. "We don't know if Nassau will be next, but the model part would be beneficial," Marano said. "The individual [judges] would have extraordinary expertise in the area to deal with the specifics of guardianships. We'd be providing a better service to the public if we have specialized individuals."
In Suffolk County, Kaye said, she had received many complaints from people who found the traditional guardianship court confusing and difficult, so she created the model part. "From the individual's point of view, the system was complex, fractured, insensitive and uncaring to the needs of very vulnerable people," Kaye said. "We're trying to make it not a frightening and off-putting atmosphere for a person who already has enough problems to begin with. With the model guardianship part, we're trying to look beyond the piece of paper to the person."
Judges and attorneys are aware of just how difficult a guardianship proceeding can be for an elderly person who is mentally or physically impaired. Garden City elder law attorney David Smith says that many have never been in court, find the courtroom upsetting and frequently don't understand why they are there. "Often they equate even being in a court with having done something wrong," Smith said.
Family dynamics
Guardianship court often involves family dynamics and interactions that, at times, can turn ugly. Nassau Surrogate Judge John Riordan said that patience and understanding are needed when presiding over a guardianship case. "You're often dealing with people with family-related emotional situations and all that goes with that," Riordan said. "The challenge in guardianship court is reaching the right decision without destroying the family -- to make the burden less on the family."
And no one is exempt from the possibility of needing a guardian, regardless of wealth or social station. Leis said the recent publicity surrounding the late socialite Brooke Astor, who needed a guardian, "highlighted the fact that these issues cross all strata of the society, from the rich to the very poor. What happened to Mrs. Astor is what we deal with every day."
Elder law
Albert Petraglia, the former chief clerk of Nassau's Surrogate Court, believes that society will continue to need elder law attorneys. "There's a graying of Nassau County and Long Island in general, and there's a definite need for elder law, for planning and helping these people who are aging," said Petraglia, who, two years ago, joined the Uniondale firm of Rivlain Radler LLP as an elder law attorney. "They say that people living longer are living healthier, but not everyone takes care of themselves as much as they should. Anyone who does a will today does a health care proxy and a living will to cover all the contingencies. But you can get Alzheimer's at any age, so younger people might need Article 81 too."
At times, it's difficult to convince people that they need a guardian. "A lot of people don't want the stigma of being called an incapacitated person; they can't sign checks," Asarch explained. "We try to let individuals live their life in a safe and dignified manner. What can the court do so the chapters keep getting filled in a person's life?"
John Neuman, an elder law attorney who practices in Jericho and Huntington, hopes there will be less need for guardians in the future. "More people have health care proxies and powers of attorney, which I hope is because of elder law attorneys and articles in publications," Neuman said. "People seem to be more familiar with long-term care planning. Guardianships may decline. Many of the cases that go before the court now are among family members."
When an incapacitated person is taken advantage of, the court case can become complicated. The person in need of guardianship may require an order of protection, or a criminal trial might result.
Mediation available
A big advantage of the model guardianship part is having a mediator available in court. The mediator discusses the possible outcomes of a case with the incapacitated person and other involved parties in a room separate from the courtroom.
Leis said the O. Gural case is typical of those sent to the model guardianship part. The elderly woman's daughter filed a petition for an independent guardian to look after her mother's interests. She alleged that her brother, Paul, had exercised undue influence in persuading their mother to change the power of attorney from her to him. Using a mediator suggested by Leis, the siblings agreed on a guardian.
"Mom felt nervous in the courtroom, but once we went into mediation, she was very open, and it was very evident to us how she felt," Paul said. "None of us would have sat in the same room and discussed this without mediation. It would have broken my mother's heart being in court, hearing her children testify against each other."
Finding the right guardian
It isn't always easy to find the appropriate guardian in the family. Sometimes, even though people have the best intentions, being a guardian becomes trying. "Caretakers experience burnout," said Asarch, explaining that at times a guardian has to be someone who is not a family member. "It's very difficult. I try to match what an incapacitated person needs with someone experienced to do it, and I've been able to do so with every case so far."
How to protect yourself in the golden years
€Plan ahead. You can only decide who will be responsible for your health and finances before you are incapacitated.
€Obtain a power of attorney. It's a legal document drawn up by an attorney when you are competent that appoints another person to be in charge of your financial affairs if and when you become incapacitated. It can cover a range of issues, including insurance policies, trusts and long-term care.
€Obtain a health care proxy. This is a legal document drawn up by an attorney when you are competent that appoints someone to make medical decisions for you, including advanced directives if you are incompetent and cannot make decisions for yourself.
Comments about this story? LLane@liherald.com or (516) 569-4000 ext. 236.
