Fans of the popular television series “Colombo” that starred Peter Falk may remember his familiar line in each episode, “Just one more thing…”
Countless citizens with loved ones who are subjects of guardianship orders have been wrongfully denied information, contact and communication by the very person charged with protecting their vulnerable family member, the court-appointed guardian; sometimes this obstruction has even extended to being denied information about their loved one’s last illness, death and funeral arrangements. Now, with the signing of Peter Falk’s Law, those loved ones may finally be granted recognition and access by the supervising judge regardless of the appointed guardian’s wishes.
Court proceedings under New York Mental Hygiene Law Article 81, which allows for the appointment of a guardian to manage personal needs, property needs or both for an allegedly incapacitated person (“AIP”), are frequently fraught with high emotion and drama. While the stated purpose of the law is to establish authority over the needs of the AIP in the least restrictive manner possible, the reality of the court proceedings and the ongoing guardianship regime itself can victimize the AIP and loved ones alike. Participants liken this court matter, typically referred to as a “guardianship” or simply “Article 81,” to a custody battle for a senior, especially when the parties involved in the action represent a blended family, which happens more and more frequently in our aging, mobile society. Adult children or adult children and spouses, often spouses from a second marriage, dispute who can best manage matters for the AIP and who should ultimately gain that authority from the court charged with making the determination. The AIP often has little voice in the proceeding other than via a court-appointed representative who attempts to ascertain his or her wishes; if the AIP suffers from advanced dementia and had no planning or outdated planning in place it can be nearly impossible to determine how they would have wanted their affairs arranged and the AIP may no longer be able to communicate who they wish to have involved in their lives.
Once guardianship has been awarded, if the legally-appointed guardian denies visitation, contact and information to family members who do not have authority from the court, loved ones may lose all opportunity to be with the AIP during his or her illnesses and final days. In essence, the guardian punishes the incapacitated individual because of the guardian’s enmity for the other family members. This treatment amounts to elder abuse, a cruel and unjust treatment of a vulnerable individual when he or she is weakest.
Until now, the law did not provide any right to adult children to visit with their ill parents or impose a duty on court-appointed guardians to keep family members reasonably informed of health status changes, hospitalization or even death.
Effective immediately with the signing of “Peter Falk’s Law” by Governor Andrew Cuomo on July 21, 2016, Section 81.16 of the Mental Hygiene Law is amended to allow at least some balance in favor of the loved ones not awarded legal control as guardian. Family members and other important individuals as identified by the court handling the guardianship will now be identified and in certain circumstances entitled to notice about hospitalizations, notice of the incapacitated person’s death and funeral and burial arrangements. Three new paragraphs are added to existing Section 81.16 as follows:
4. The order of appointment [naming the Guardian of the person, property or both] shall identify the persons entitled to receive notice of the incapacitated person’s death, the intended disposition of the remains of the decedent, funeral arrangements and final resting place when that information is known or can be reasonably ascertained by the guardian.
5. The order of appointment may identify the person or persons entitled to notice of the incapacitated person’s transfer to a medical facility.
6. The order of appointment may identify the persons entitled to visit the incapacitated person, if they so choose. However, the identification of such persons in the order shall in no way limit the persons entitled to visit the incapacitated person.
The law in New York stems from a bill that has been introduced in multiple states to guarantee visitation and access to individuals under guardianship or conservatorship. Peter Falk was a native of New York and graduate of Syracuse University; his daughter, Catherine Falk, brought the proposed legislation here with an expectation of helping New York families avoid the suffering she endured after her stepmother, Shera Falk, allegedly blocked contact and information during her father’s final years as he suffered an increasing decline with Alzheimer’s disease.
There have been numerous media accounts citing allegations of elder abuse and isolation of celebrities, especially those with dementia or other mental illness, when the individuals with guardianship authority refuse to provide information or visitation to loved ones who desperately want access to the incapacitated person. A quick internet search shows similar recent claims about Mickey Rooney and Casey Kasem prior to their deaths. While celebrities garner media attention, average citizens do not have access to the media to tell their stories and the system left them without recourse until now. The very day Governor Andrew Cuomo signed this new law I received an inquiry from a potential client whose sister had placed her mother in a local facility and instructed the facility administration that my caller was not allowed on the premises.
While the new law provides for identification of those individuals who should receive notification of death and final arrangements it remains unclear what recourse those individuals will have if the guardian ignores the requirements imposed by the court awarding and overseeing guardianship. Likewise, it is too soon to
tell whether families subject to existing guardianships will petition to obtain identification, recognition and more explicit notice provisions. As new matters are filed parties will need to rely on their attorneys to craft orders that adequately address the new identification and notice provisions, and provide remedies for failure to follow the guardianship order.
Peter Falk’s law provides a new opportunity under Mental Hygiene Law to prevent elder abuse. The sad personal stories that can be found online or by simply talking to families who have experienced the horrors of guardianship proceedings prove the need for every adult to engage in effective planning, including powers of attorney and health care proxies, as well as solid communication with family members about wishes for companionship and visitation should circumstances change and the individual lose the ability to direct who should have contact, information and access. Vulnerable individuals should never have to fear Isolation. Planning with a skilled elder law attorney could make all the difference between hoping for the best under the guardianship regime and never seeing the inside of a courtroom.
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Lisa Powers, Esq. is a Partner in the Wealth Protection and Transfer practice group at Boylan Code, LLP. Currently serving as Vice Chair of the Arc of Monroe Foundation Board, Ms. Powers recognizes the crucial need to protect the rights of vulnerable individuals, especially those with intellectual or developmental disabilities. For more information contact Lisa at 232-5300 or lpowers@boylancode.com.
