An Article 81 guardianship proceeding is a lawsuit in which an individual or entity seeks the appointment of a guardian for an “alleged incapacitated person” (the “AIP”). A common misconception about Article 81 guardianship proceedings is that medical evidence is of primary importance to the court’s determination of whether an alleged incapacitated person is, in fact, incapacitated.
But practitioners know that medical evidence and diagnoses are, at most, a secondary consideration of the court in its determination of incapacity. Indeed, although the AIP’s medical condition may strongly affect his or her functional level and functional limitations – the key factors in a finding of incapacity – medical records are usually excluded from evidence as privileged, subject to certain limited exceptions.
In Matter of S.B., 2018 N.Y. Misc. LEXIS 2413 (Sup. Ct. Chemung Cty. June 15, 2018), the court encountered what it dubbed a “novel” question “of first impression” further touching on the use of medical evidence in a guardianship proceeding. The court framed the issue as follows: “[C]an the Court order a neuropsychological evaluation of the AIP despite her objection?” The court answered in the negative – even though the court evaluator recommended that the AIP undergo such an evaluation.
In reaching its decision, the court relied on a potpourri of statutory citations and caselaw. First, the court stated that although the Mental Hygiene Law requires a court evaluator to meet with the AIP, “there is no concomitant statutory duty imposed upon the AIP to meet with the” court evaluator. The court held that forcing an AIP to submit to a medical examination is analogous to compelling an AIP to be interviewed by a court evaluator – a requirement not contained in the law.
Second, the court cited the AIP’s objection to the examination, and noted that the “AIP enjoys the doctor-patient privilege that precludes admission of her medical records into evidence unless she affirmatively placed her medical condition at issue.” In simply objecting to the petitioner’s petition and opposing the medical examination, the court found that the AIP had not placed her medical condition at issue to warrant waiver of the privilege.
Third, the court noted that the “law of the Second and Third Departments” is that an AIP cannot be forced to testify at trial. The court found that a court-mandated medical examination may be analogous to ordering an AIP to testify, and declined to “potentially enter[] an unenforceable Order.”
Lastly, the court highlighted the practical consideration that regardless of any Court Order, the AIP would not cooperate in a medical examination. So any Court Order would likely be futile.
The holding of Matter of S.B. appears to significantly narrow the function of any independent medical expert the court evaluator may retain (with the approval of the court) under MHL § 81.09(c)(7). But that topic is for another blog post.
Ultimately, in Matter of S.B. the court found that the AIP was not incapacitated. And, as is usually the case, its determination was based upon its interactions with the AIP – and not upon the results of a medical examination or medical records.
The experienced Litigation team at Cuddy & Feder LLP is available to help you in the areas of trusts & estates litigation, including will and trust contests and accountings, and contested and uncontested Article 81 guardianship proceedings.