Affidavit of Heirship for Brooklyn, Ny by fxf13573


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By Bernard A. Krooks & Howard S. Krooks | 03/11/03
New York Law Journal

Experienced guardianship practitioners are generally in agreement that the single most
problematic issue they must confront is that the guardianship practice varies from county
to county. The county by county variations exist even though there is one guardianship
statute (Article 81 of the Mental Hygiene law) governing all such proceedings brought
throughout the State. Further distinctions may be noted between proceedings commenced
in the downstate area versus upstate New-York. This article will address a variety of
issues that can arise for the practitioner handling guardianship proceedings, with a
particular emphasis on downstate county by county variations.

Physician's Affidavit

Under Article 81's predecessor statutes, a physician's affidavit was routinely attached to
an Order to show cause and judges came to rely on the information provided by doctors
in determining whether to appoint a conservator under article 77 or a committee under
Article 78 of Mental Hygiene Law. Thus, many people assume that a physician's affidavit
is required to be attached to the Order to Show Cause and Petition files with the court to
commence a guardianship proceeding. However, one of the seminar changes effectuated
by Article 81, which became effective on April 1, 1993, was a shift in focus from age,
alcoholism or disease (diagnosis-related ailments) as a basis for determining capacity to a
functional limitations and his/her ability to carry out the activities of daily life.

Nothing in Article 81 requires that an affidavit of a physician (or medical testimony,
discussed below) be attached to the Order to Show Cause and Verified Petition (these two
documents are required to be filed with the court to commence a guardianship

This poses a question to the practitioner in filing papers necessary to commence a
guardianship proceeding under Article 81: should a physician's affidavit be attached to
the papers? The answer depends upon in which county the proceeding is being brought.
Like many aspects of guardianship practice throughout New-York State, local practice
will dictate how certain things are done. In the case of attaching a physician's affidavit to
the Order to Show Cause and Petition, one must look to local practice as each county will
likely handle this issue differently.

We have contacted the guardianship part of each of the counties listed below and, along
with our own experience in this area; we have determined that there are various responses
to this question. For example, Kings, New-York and Rockland counties all require that a
physician's affidavit be attached to the papers (in New-York county, the answer may
depend further upon which of the nine justices of the Supreme Court who handle
guardianship cases is assigned to handle a particular case).
Suffolk County imposes no such filing requirement. In the Bronx, Nassau, Queens, and
Westchester, an application for the appointment of a guardian may be submitted without
a physician's affidavit, although it is expected that the Petitioner will explain at the
hearing why it was impracticable to do so. Thus, in these four counties, the safest
approach if the practitioner wishes to get the papers filed (and in many cases there is an
urgency to the proceeding), is to attach the physician's affidavit to the Order to Show
Cause and Verified Petition unless there are compelling reasons to do otherwise.

The issue raised by attaching a physician's affidavit to the Order to Show Cause and
Verified Petition is of course one of an alleged incapacitated person's (AIP) privacy rights
(derived from the physician-patient privilege) and concomitant violation of that right
when a physician's affirmation is attached to the papers. The academic discussion about
the propriety of requiring that a physician's affidavit be attached to the papers will not be
dealt with in this article; however practitioners may wish to review several cases dealing
with the issue of reviewing medical records of an AIP, including In re Goldfarb, 160
Misc.2d 1036, 612 N.YU.S.2d 788 (Sup. Ct., Suffolk Co. 1994) and In re Tara X,
N.Y.L.J, Sept. 18, 1996, p27, col.1 (Sup. Ct, Suffolk Co.).

Medical Testimony

A related issue is whether a court will require (permit) medical testimony from a doctor
at the hearing to determine capacity of an AIP. Article 81 imposes no requirement for
medical testimony in order to appoint a guardian under the statute. Yet, once again, the
counties vary in their treatment of this issue.

This issue also has financial implications as a physician may spend several hours
providing live testimony taking into account travel time, waiting in court, depending
upon the court calendar, and providing the actual testimony, but usually permits the
physician to testify by telephone, thereby eliminating the travel and waiting time
elements and therefore the overall cost. In the Bronx and Queens, medical testimony is
not required but the practitioner should be dispensed with at the hearing (once again the
advisable course of action would be to show up at the hearing with the doctor unless there
are compelling reasons not to). Rockland County does not require medical testimony
except in contested matters. Nassau and Suffolk counties generally do not require
medical testimony.

Judge's Experience

Practitioners need to educate themselves about the judges in a particular county who have
been assigned to hear guardianship cases. In some counties, only one guardianship judge
will hear all guardianship cases brought in a particular county. This approach benefits
incapacitated persons because where only one judge hears the cases, there is established
continuity in the handling of a case from the date of the appointment through the
termination of the guardianship (assuming the same judge has not retired or moved to
another part of the court system).
Furthermore, by having one judge hear all guardianship matters in a particular county,
that judge is afforded the opportunity to become an expert in Article 81 matters and will
bring that expertise to bear on future cases. Where more than one judge is designated,
each judge is likely to have less experience handling Article 81 matters since a finite
number of cases are being spread across a greater number of judges.

Over the last several years, many downstate counties have tinkered with a variety of
approaches that range anywhere from having one judge hear all guardianship cases to
designating a panel of specified judges to share the responsibility to hear all of the
guardianship cases brought in that county. For example, in Rockland County, Judge
Alfred J. Weiner has been assigned to hear all guardianship cases brought in Rockland
County. Similarly, in Westchester County, Judge Peter P. Rosato has been assigned to
hear all guardianship cases brought in Westchester County.

There are 17 Supreme Court Judges assigned to hear all guardianship cases brought in the
Bronx (among them are Gerald V. Esposito, Douglas McKeon, Alan J. Saks, Barry S.
Salman, Howard R. Silver and Anne E. Targum). Kings County has five judges (L.
Priscilla Hall, Arial Belen, Anthony Cutrona and Michael Pesce). It was not that long ago
that Judge Leonard Scholnick was the only guardianship judge to hear guardianship cases
brought in Kings County. Judge Leonard Scholnick has since retired, although before he
retired he was one of the six judges that heard guardianship cases in Kings County (the
number has since become five).

In Nassau County, there are three judges who hear all guardianship cases (Anthony J.
Falanga, Anthony F. Marano and Frank S. Rosetti (who is primarily hearing only motions
on existing cases previously brought before him)).

There are nine judges who have been assigned to hear all guardianship cases in New-
York County (Ellen Bransten, William J. Davis, Marjorie D. Fields, Phyllis Gangel-
Jacob, Robert D. Lippman, Willaim P. McCooe, Stanley Parness, Lucindo Suarez and
Harold Tompkins). In Queens, there are three judges assigned to handle all guardianship
cases (John A. Milano, Janice Taylor and Charles Thomas). In Suffolk County, there are
four judges assigned to handle all guardianship cases (Howard Berler, Marquette Floyd,
W. Bremley Hall and Harry E.Seidel).

Full Versus Form

Certain counties may use what is known as a "form commission" instead of the full
commission (which mirrors the language in the Order and Judgment Appointing
Guardian). The form commission permits the practitioner to check off certain boxes in
the form that pertain to information that applies to the particular case at hand in lieu of
delineating language that is more verbose in a full commission.

Where a full commission is used, the guardianship clerk is required to read the
Commission and compare it to the Order and Judgment Appointing Guardian to ensure
that the Commission is identical verbatim to the Order and Judgment Appointing
Guardian. This is obviously a more cumbersome and time-consuming process.
Essentially, the form commission streamlines the commission process making it easier to
obtain one.

Currently, among the downstate counties, Bronx, Kings, New-York, Suffolk, and
Westchester counties utilize the form commission. Only Nassau, Queens and Rockland
still require use of the full commission.

Two Reports

On Dec. 3, 2001, the Office of the Special Inspector General for Fiduciary Appointments
issued its long awaited report entitled "Fiduciary Appointments in New-York". This
office, which is headed by Special Inspector General Sherrill Spatz, was created by Chief
Justice Judith S. Kaye in February 2000 with authority to investigate violations of the
fiduciary rules and recommend referrals of such violations to appropriate disciplinary and
other enforcement authorities. The Special Inspector General's Office was created along
with a Commission on Fiduciary Appointments, headed by Sheila Birnbaum (frequently
referred to as the Birnbaum Commission), with the responsibility to examine the existing
rules and procedures governing fiduciary appointments and offer recommendations to
improve them.

These two entities were formed by Chief Justice Kaye following "…widely publicized
allegations regarding the connection between political party service and receipt of
fiduciary appointments in Brooklyn Supreme Court…". Many people interpreted the
situation in Brooklyn to confirm the widely held perception that there was an
inappropriate influence of politics in the appointment process throughout the State. The
Birnbaum Commission issued its report on Dec. 5, 2001. Both reports may be obtained
by accessing the Office of Court Administration Web site at

The reports cover fiduciary appointments in the context of persons appointed as
guardians for incapacitated persons (under Article 81 of the Mental Hygiene Law),
receivers for properties involved in foreclosure proceedings and as guardians ad litem to
protect individuals under a disability who are involved in litigation. Also in Surrogate's
Court, guardians ad litem are appointed in connection with (1) proceedings to settle
accountings of executors, administrators and trustees, (2) wrongful death and personal
injury actions, (3) adoptions, (4) applications for the disposition of real property, (5)
construction proceeding under Surrogate's Court Procedure Act, (6) heirship proceedings,
and (7) Article 81 proceedings commenced under the Mental Hygiene Law. Thus, a
variety of fiduciary appointments is covered by the reports.

With regard to Article 81, there are several types of appointments that can be made by a
judge: a person can be appointed as court evaluator, court-appointed counsel and/or as
guardian. In addition, court examiners are appointed by a court to review peroiodic
reports and accounting filed with the court.
The office of the Special Inspector General and the Birnbaum Commission identified
numerous problems with the existing framework for fiduciary appointments (as set forth
in Part 36 of the rules of the Chief Judge, which became effective on April 1, 1986). The
report of the Special Inspector General identified the following problems:

   •   Political party officials have received fiduciary appointments;
   •   Former judges have received fiduciary appointments;
   •   Immediate relatives of non-judicial employees of the Unified Court System have
       been deficient (referring to the requirement that Article 81 fiduciaries file a notice
       of Appointment (UCS Form 830.1) and a Certification of Compliance (UCS Form
       830.3), listing all appointments received in the previous 12 months);
   •   The part 36 Rules were not applied to secondary appointments (such as where a
       guardian hires counsel);
   •   Widespread billing irregularities were found to exist (legal fees were approved for
       services deemed to be of a routine nature, such as preparing initial, annual and
       final reports/accountings, speaking with hospital and nursing home staff,
       obtaining bonds, etc.);
   •   Courts frequently appointed the court evaluator as guardian in an Article 81
   •   The $5,000 limit set forth in the Part 36 Rules (which prohibits a single appointee
       from receiving more than one fiduciary appointment within a 12 month period if
       the anticipated compensation would exceed $5,000) may have been violated.

The Birnbaum Commission identified the following problems:

   •   The current OCA fiduciary lists (which courts traditionally have used to make
       appointments) are largely unusable due to large numbers of potential appointees
       on each list (there is a separate list for each county) and the fact that many persons
       included ion the list are either retired, have moved away or have died;
   •   Inclusion on the lists is essentially automatic (there are no education, training
       requirements or experience prerequisites);
   •   Certain individuals who serve in a fiduciary capacity are not covered by the
       existing rules (such as court examiners, special needs trustees and those retained
       by a fiduciary appointee (counsel to guardians, accountants for guardians, etc.));
   •   Public funds are not available to compensate guardians in indigent cases;
   •   Laypersons believe they have nowhere to go with the questions and complaints.

The effect of these reports on the fiduciary appointment process remains to be seen. After
a public comment period, it is anticipated that at least some or perhaps all of these
recommendations will be adopted. The New-York State Bar Association has created a
Special Committee to provide formal comments to the recommendations made in the
reports. In the interim, the following are some of the changes recommended by the
Birnbaum Commission Report:

1) Training should be requires for inclusion on the fiduciary lists;
2) State and County political party leaders should be ineligible for appointment;

3) Immediate relatives of higher-level non-judicial employees should be ineligible for

4) Limitations should be imposed on former judges receiving appointments;

5) Disbarred and suspended attorneys should be ineligible for appointment;

6) Criminal offenders should be ineligible for appointment;

7) Information regarding a fiduciary's bankruptcy history (according to the Birnbaum
Commission Report; it may not be lawful under current federal law to preclude bankrupts
from serving in a fiduciary capacity);

8) Procedures should be adopted to allow removal of a fiduciary from the OCA list for
good cause;

9) Judges should have full authorization to select the fiduciary;

10) Judges should select fiduciaries from the OCA list;

11) Specialized fiduciary lists should be created based upon the category of the
appointment (i.e., receivership, Surrogate's Court matters, Article 81 matters);

12) Re-registration should be required for all those on the fiduciary list;

13) Additional types of appointees should be governed by the fiduciary rules (special
needs trustees, guardians ad litem in matrimonial cases, "privately paid" law guardians
appointed to represent the interests of children in matrimonial cases);

14) Additional types of "secondary" appointees (persons retained by the court-appointed
fiduciary) should be governed by the rules;

15) New limits should be imposed on the number of the higher-paying appointments that
individual fiduciaries may receive (the Commission recommended that once an appointee
has been awarded as a threshold amount of $25,000 in all fiduciary appointments in a 12
moth period, the appointee would be ineligible for another appointment for the next 12

16) Judges must be more scrupulous in reviewing applications for compensation;

17) Other various recommendations

Many practitioners in the guardianship bar have criticized the reports, pointing out that
the percentage of cases where political favoritism played a role in the appointment
process is extremely low, the cases described in the reports were the most egregious and
in some instances "sensationalized", the reports fail to diagnose the problems with the
appointment process correctly and the recommendations made in the reports will be
detrimental to those served by Article 81. Other criticisms abound.

It is not clear at this point which or how many of these recommendations will be adopted,
so practitioners need to be aware that these reports exist and that significant changes in
the way fiduciary appointments are made in Article 81 proceedings (as well as the other
types of appointments covered by the reports) are likely to occur over the next several


This article discusses some of the most prevalent distinctions one can expect to find in
guardianship practice from county to county in New-York State. This is by no means an
exhaustive list of county by county variations.

Other possible distinctions include: the filing procedure for the Order to Show Cause and
Verified Petition, including how to obtain a conformed copy of the signed Order to Show
Cause; when affidavits of service must be filed with the courts (some courts require filing
at least 2 days before the return date of the hearing and other courts prefer that the
affidavits of service be files on the date of the hearing); whether an actual hearing takes
place or whether the judge holds an informal "conference" in chambers; whether a judge
will prepare an Order and Judgment Appointing Guardian or whether counsel for
Petitioner will be asked to do so; and whether only the decretal portion of the record must
accompany the proposed Order and Judgment as opposed to the entire record.

There are countless other distinctions that exist in our "unified" court system. The
important point is that counsel in guardianship proceedings must make themselves aware
of how a particular county and a particular judge handles a guardianship proceeding with
respect to a multitude of substantive and pro

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