Does the AIP have to cooperate during an Article 81 guardianship proceeding?

Can the alleged incapacitated person (AIP) refuse to comply with information requests from the court evaluator or the other parties during a guardianship proceeding? 

This issue arose in Matter of Aida C. 44 AD3d 110 (4th Dept 2007), where the AIP asserted that her liberty interest was at stake and she therefore could not be compelled to speak to the Court Evaluator without violating her constitutional rights against self-incrimination.  The Fourth Department disagreed, concluding that the AIP’s constitutional rights against self-incrimination were inapplicable in the guardianship proceeding.  The court reasoned that the case was civil (rather than criminal), and that any confinement would be for the purpose of care and treatment rather than punishment.

The Fourth Department nevertheless held in Matter of Aida C. that the trial court lacked the power to compel the AIP to meet with the court evaluator, reasoning that Mental Hygiene Law Article 81 did not impose any such affirmative obligation on the AIP.  The Fourth Department further held that the trial court erroneously sought to punish the AIP for her failure to cooperate with the court evaluator, concluding that the AIP was not a “party” to the guardianship case so as to permit civil contempt against the AIP under Judiciary Law § 753 and that the petitioners failed to establish that they had sustained any redressable injury for which to punish the AIP.

Similarly, In Matter of Parker, 162 Misc2d 733 (Sup Ct, Onondaga County 1994), the petitioner objected to the dismissal of the petition as defective.  During oral argument, petitioner’s counsel asserted that the AIP had refused to divulge his financial resources.  In response to this argument, the court concluded in its decision that “it is certainly within [the AIP’s] rights to maintain the confidentiality of such personal matters [and that] his refusal in this area may be some indication of awareness as opposed to incapacity” (id. at 735).

Recently, in Matter of Elizabeth TT. (Suzanne YY.–Elizabeth ZZ.), ___AD3d___, 2019 NY Slip Op 06667 [2019]), the Third Department concluded that the AIP could not be forced to undergo a neuropsychological evaluation or compelled to testify against her own interests, concluding that there was no duty for an AIP to abide by a court evaluator’s recommendation that he or she undergo a neuropsychological evaluation to assess his or her present cognitive condition.

The courts have also struggled with deciding whether an AIP may be compelled to testify at the hearing.  In Matter of Heckl, 66 AD3d 1344 (2009), the Fourth Department held that the trial court may compel the AIP to testify at the guardianship hearing.  However, this conclusion has been rejected by several other courts.  In Matter of Elizabeth TT., for example, the Third Department concluded that there was no statutory requirement in Mental Hygiene Law article 81 that compels the AIP to testify at a hearing and that a petitioner must rely on other evidence to meet his or her burden. 

Similarly, in Matter of A.G., 6 Misc 3d 447 (Sup Ct, Broome County 2004), the court agreed that an AIP cannot be forced to testify in an article 81 proceeding.  The court relied upon federal and state constitutional grounds and the statutory right against self-incrimination incorporated in CPLR 4501, among other things.

In addition, in Matter of G.P., 37 Misc 3d 418 (Sup Ct, Dutchess County 2012), the court strongly criticized the court’s reasoning in Matter of Heckl and concluded that AIP could not be compelled to testify as a witness.  

Sumner Redstone’s “Guardian”?

The WSJ headline this week read: Court to Appoint Guardian for Sumner Redstone. The headline on its face is clear in its implication that the controlling shareholder of CBS Corp., and Viacom Inc., will no longer be in control of his own affairs. The upshot is that he has lost it and lost control of his affairs. Could this be true? He is seeing little green men?

When a guardian is appointed, is all lost for the person?

There is much more to the story than the WSJ headline. There are more details relating to the recent outcome of the matter than suggested by the sensational headline.

The development of the appointment is part of a much larger legal dispute, a legal war, that has its genesis in Mr. Redstone’s past relationship with an old girlfriend who is in her early 50s. He is 95 years old. Her efforts have been a well-documented legal drama stemming from her having been removed from Mr. Redstone’s mansion in Beverly Hills. She contends, by direction of his daughter, who seized on his waning capacity to usurp control. The girlfriend was at one time his health care proxy and by accounts, she was included and provided for in his estate. After their relationship soured, she has persistently fought against his decisions by claiming that he lacked the mental capacity to make the decisions terminating her roles.

There is a significant amount at stake, and Mr. Redstone filed a subsequent lawsuit against her to recover $75 million in gifts that he gave her. His wealth is estimated to be $5 Billion. That trial will be next year, and she is pressing it. Adding to the proceedings are claims by Mr. Redstone’s daughter Shari Redstone and his grandson who will control his trust – when he is determined to be incompetent or on his death. Mr. Redstone was known to have spent the bulk of his adult life legally and generally feuding with his daughter and stated openly that he did not want her to be involved in corporate leadership. In an e-mail to her son she once said, “Your grandfather says I will be chair over his dead body”. The trust controls CBS and Viacom. His family contends that he has capacity.

This is all about money and control. They are common pursuits. But the legal wrangling is interesting and less common as the strategies are assessed and the case evolves.

Certainly, the attorneys for Mr. Redstone adopted the same defensive position present in virtually all these types of cases, where the guardianship is resisted: “he is fine”. That position can be very effective and persuasive where the individual is strong. But here, like in many cases Mr. Redstone was known to be failing and he was of advanced age. His public appearances were growing limited and his visible confidence seemed to diminish. Candor with the court in these circumstances becomes paramount and often a shifting strategy must be considered. Running a bluff, with a hope of settlement is typically a losing strategy. Practical concerns abound in that third parties who interact with the person may offer non-corroborating opinions. In fact, their recounts of interactions may contradict the position that he is fine. In some instances, depositions can blow the case wide open. Worse yet, if medical information is not managed correctly it can be very effectively used despite efforts to keep that proof out of the case. The court knows what inevitably happens to people when they age. It can be a mistake to stake out an impossible position on the proof when your client is declining. Competent counsel effectively identifies and assesses risks. Settlement may be impossible. The trial risk relative to an adverse finding, disclosures of highly sensitive personal and business information. Like in Redstone, an adviser finding can trigger collateral consequence relative to trust and estate planning. Often the finding of lack of capacity can be permanent. In the Redstone case there is plenty at risk at present and into the future.

Mr. Redstone’s lawyers, for many years adhered to the “he is fine” mantra. It staved off the appointment of a guardian and seemed quite effective. The adverse consequences of going forward were averted. However, the recent ruling while on its face may appear to be a big loss, may turn out to be a sizeable win for Mr. Redstone.

Of recent, Mr. Redstone’s attorneys appear to have softened on the “he was fine” position. Instead they shifted to a position of “deteriorating health conditions”. Was that a complete capitulation? Why? But is that enough for appointment of a guardian? It appears that Mr. Redstone’s girlfriend’s attorney thought so – as they have asserted this vindicates her position and further, shows that Mr. Redstone had no capacity when he sued her.

But not so fast. A closer look reveals that the shifting position may well have worked well. Although the headline suggests a whopper of a loss the result is not a complete wipe out for Mr. Redstone.