JANUARY 2017 VOL. 89 | NO. 1 JournalNEW YORK STATE BAR ASSOCIATION
The Dementia Crisis Special Issue for Attorneys, Their Loved Ones and Their Clients
By Robert Abrams, Editor NEW YORK STATE BAR ASSOCIATION NEW YORK STATE Online Publications BAR ASSOCIATION In Partnership with Fastcase
NEW YORK STATE BAR ASSOCIATION Online NEW YORK STATE Online Publications BAR ASSOCIATION In Partnership with Fastcase Online Publications Publications In Partnership with Fastcase In Partnership with Fastcase
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NEW YORK STATE BAR ASSOCIATION JournalNEW YORK STATE BAR ASSOCIATION BOARD OF EDITORS EDITOR-IN-CHIEF ANNUAL MEETING David C. Wilkes Tarrytown e-mail: [email protected] JANUARY 23 – 27, 2017 Hannah R. Arterian Syracuse Marvin N. Bagwell NEW YORK CITY Westbury New York Hilton Midtown Brian J. Barney Rochester 2017 Mark A. Berman New York City Katherine W. Dandy White Plains Janet M. DiFiore Albany Elissa D. Hecker Irvington Michael J. Hutter Albany Barry Kamins Brooklyn Paul R. Kietzman Latham Daniel J. Kornstein New York City Ronald J. Levine New York City Julia J. Martin Syracuse Marian C. Rice Garden City MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Nicholas J. Connolly Tarrytown
PUBLISHER Elizabeth Derrico Interim Executive Director
REGISTER NOW. NYSBA PRODUCTION STAFF EDITOR BOOK YOUR HOTEL TODAY! Kate Mostaccio DESIGN Lori Herzing Erin Corcoran www.nysba.org/am2017 COPY EDITORS Alex Dickson Reyna Eisenstark Howard Healy EDITORIAL OFFICES One Elk Street, Albany, NY 12207 (518) 463-3200 • FAX (518) 463-8844 www.nysba.org
NYSBA ADVERTISING New York State Bar Association Attention: Advertising One Elk Street, Albany, NY 12207 PH: 518-487-5687 Secure Fax: 518-463-5993 Web: www.nysba.org/Advertising Email: [email protected] EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961 – 1998 CONTENTS JANUARY 2017
THE DEMENTIA CRISIS by Robert Abrams, Editor 8
12 Dementia and the Law by Rose Mary Bailly and Robert K.P. Cannon 18 My Doctor Said … So My Attorney Said The Legal Challenges for Recently Diagnosed Individuals by Cora A. Alsante and Ellyn S. Kravitz DEPARTMENTS 22 Distinguishing Dementia from Mental Illness and Other Causes of Decline 5 President’s Message by Carolyn Reinach Wolf, Jamie A. Rosen, 6 CLE Seminar Schedule Dorothea Constas and Hindi Mermelstein 6 Moments in History 48 Burden of Proof 28 Proving Diminished Mental Capacity by David Paul Horowitz Post-Death 51 NYSBA Sustaining Members by Shira Bloom, Kyle Durante, Christina Lamm, 54 Attorney Professionalism Forum Brian McCarthy, Marissa Ottavio, Rochelle Sorensen, Lori Sullivan and Ashley Valla 57 Becoming a Lawyer by Lukas M. Horowitz 38 Dementia in the Courtroom 61 Index to Advertisers by David Klein and Kyle Durante 61 Classified Notices 63 2016–2017 Officers 41 Experiential Wisdom Insightful Perspectives on Dementia, 64 The Legal Writer by Gerald Lebovits the Legal Profession and the Law by Robert Abrams New Members Online
The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2017 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publica- tion of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $30. Library subscription rate is $210 annually. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.
NYSBA Journal | January 2017 | 3 Advised and administered by The New York State Bar Association Insurance Program
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Connect Inspire Learn “This is the power of gathering: it inspires us, delightfully, to be more hopeful, more joyful, more thoughtful: in a word, more alive.” – Alice Waters
ur Association’s 140th Annual disseminating sexually explicit images Meeting will be in New York of an intimate partner without consent, OCity from January 23 to Janu- often (but mistakenly) referred to as ary 27, 2017. The theme is “connect, “revenge porn.” This wreaks havoc on inspire, learn,” and this year’s CLE victims’ lives, causing shame, humili- offerings, meetings and networking ation and trauma, and makes them opportunities reflect the rich smorgas- vulnerable to harassment by those an award honoring a woman who has bord of the law and the knowledge and who view the images online. The panel advanced the professional develop- diversity of our members. will focus on the dynamics of intimate ment of women attorneys, and will Connection is key. We too rarely partner violence, the legal issues and host a networking reception after the come together in person, so it is par- options relating to e-exploitation, the program. ticularly satisfying to shake hands and current law in New York and whether On Thursday, the Committees on speak with a colleague known only laws specifically targeting this form of Civil Rights and Diversity and Inclu- through email. As much as we rely on violence are needed. sion will co-host a program on disrupt- electronic communication, meeting and Increasing diversity and inclusion is ing implicit bias, offering practical steps engaging with colleagues in person has another of my priorities, and the Annu- to “interrupt” your own unconscious a power that resonates long after we al Meeting offers programs and events biases (and deal with a colleague’s), in return to our offices across the state, the to advance that goal as well. situations from hiring and mentoring, country or the world. On Monday, the Committee on to interviewing a witness or client, to That’s the power of Annual Meeting, Diversity and Inclusion celebrates picking a jury. and we hope you join us. Our Sections, diversity in the bar – beginning with the At Friday’s House meeting, we will committees and staff have worked tire- Constance Baker Motley Symposium, discuss a proposal to incorporate diver- lessly to develop programs and events followed by presentation of the Diver- sity and inclusion and elimination of to educate and inspire you. If you can- sity Trailblazer Award and capped off bias credits into the existing biennial not attend, please gather with us via with a reception. At the Symposium, MCLE requirement. I urge you to watch our live-streamed programs: the House this year’s Trailblazer, Second Circuit the debate on the House floor. of Delegates meeting, career develop- Court of Appeals Judge Denny Chin, You can live stream some events, ment programming and the Presiden- will join past Trailblazers to discuss and many Section CLEs will be avail- tial Summit. what progress has been made toward able online after the Annual Meeting, On Wednesday, it will be my privi- achieving diversity in the legal profes- but you gain the most by joining us lege to host the Presidential Summit. sion in the 10 years since the award’s in person. “The power of gathering: One panel will discuss the impact of inception. it inspires us.” Chef Alice Waters may artificial intelligence on the legal profes- Tuesday’s Committee on Women in have had sharing a meal in mind when sion, a hot topic for all members. the Law program will help you “step she wrote this but, clearly, the power Combatting domestic violence is one up your game,” with a panel discuss- is in coming together – not the food. of my priorities as president, and our ing leadership and presentation skills. That is the power of the Annual Meet- other Summit panel addresses a new Another panel will address the impor- ing. Gathering together, we connect, twist in this scourge. Advances in tech- tance of women in the judiciary, includ- inspire, and learn. n nology, the Internet and social media ing their impact on the legal commu- have made possible a form of abuse nity and on women litigants and par- Claire P. Gutekunst can be reached that involves threatening to or actually ties. The Committee also will present at [email protected].
NYSBA Journal | January 2017 | 5 NYSBACLE Tentative Schedule of Spring Programs (Subject to Change)
The New York State Bar Association Has Been Certified by the New York State Continuing Legal Education Board as an Accredited Provider of Continuing Legal Education in the State of New York.
Marketing for Solo Practitioners 2017 13th Annual International Estate Planning (live & webcast) Institute March 3 New York City March 23-24 New York City
Legal Malpractice 2017 Commercial Litigation Academy 2017 (9:00 a.m. – 1:00 p.m.) (live & webcast) March 10 Westchester May 4-5 New York City March 17 Rochester March 24 Albany, New York City March 31 Long Island
To register or for more information call toll free 1-800-582-2452 In Albany and surrounding areas dial (518) 463-3724 • Or fax your request to (518) 487-5618 www.nysba.org/CLE (Note: As a NYSBA member, you’ll receive a substantial discount)
“Moments in History” is an occasional sidebar in the Journal, which will feature people and events in legal history.
Moments in History The Social Security Act In 1934, the nation lay mired in the Great Depression. A quarter of the workforce was unemployed. Many of the elderly and those who couldn’t work or seek work lacked a steady income for survival. Voices for reform implored the federal government to provide the leadership that individual states could not. President Franklin Delano Roosevelt answered the call with an executive order establishing the Committee on Economic Security, which was directed to formulate an appropriate program of social insurance.
In August 1935, a modified version of the proposal that Roosevelt’s team had submitted to Congress became law as the Social Security Act. It had four major elements: (i) a federal-state unemployment insurance system to be administered by the states and funded by a uniform nationwide tax on employers; (ii) federal grants for state wel- fare payments to needy populations; (iii) federal grants to states for a variety of public health programs; and (iv) “old-age insurance” to be funded by employers and workers through a payroll tax.
In 1940, Mrs. Ida May Fuller of Ludlow, Vermont, became the first recipient of a monthly Social Security retirement check in the amount of $22.54. By the time she died in 1975, she had received a total of $22,888.92. For the year 2012, 56.8 million Americans received monthly Social Security benefits totaling $775 billion.
Excerpted from The Law Book: From Hammurabi to the International Criminal Court, 250 Milestones in the History of Law (2015 Sterling Publishing) by Michael H. Roffer.
6 | January 2017 | NYSBA Journal JUST THIS ONCE, IT’S HARD TO STAY NEUTRAL. CONGRATULATIONS TO OUR WINNING MEDIATORS & ARBITRATORS.
Robert Adams, Esq. Hon. Elizabeth Bonina Richard P. Byrne, Esq. Former Senior V.P. Risk Management, Former Justice of the Supreme Court Commercial Specialist Tishman Construction Corp, NYC Specialties Include: Specialties Include: Specialties Include: Personal Injury, Labor Law, Medical Commercial, Construction, Disability, Labor Law, Construction, Insurance Coverage, Malpractice, Nursing Home, Product Liability, Employment, Labor Law, Insurance and Sports Law, Entertainment, International Property Damage, Real Estate, Administrative Reinsurance, Risk Transfer, Product Liability, Law, Sports Law Property Damage, Personal Injury/Negligence 3 Best Individual Mediator 3 Best Individual Mediator 3 Best Individual Arbitrator 3 Best Individual Mediator
Hon. John P. DiBlasi Joseph L. Ehrlich, Esq. Hon. Jerome C. Gorski Former Justice of the Commercial Division Hearing Officer Former Assoc. Justice, Appellate Division, of the Supreme Court Specialties Include: 4th Dept. Specialties Include: Insurance, Labor Law, Negligence, Premises Specialties Include: Commercial, International, Finance, Defamation, Liability, Product Liability Commercial, Legal Fee Disputes, Medical Employment, Entertainment, False Imprisonment, Malpractice, Nursing Home, Professional Fraud, Insurance Coverage, Intentional Torts, Liability, Insurance Coverage, Labor Law, Land Use, Professional Malpractice 3 Best Individual Mediator Personal Injury 3 Best Individual Mediator 3 Best Individual Arbitrator 3 Best Individual Arbitrator
Kenneth Grundstein, Esq. Susan Hernandez, Esq. Howard J. Kaplan, Esq. Former NYC Chief Settlement Negotiator Former Chief of Staff to Presiding Justice Hearing Officer Appellate Division, 1st Dept., Mediator, Specialties Include: Specialties Include: Bronx County Medical Malpractice, Nursing Home, Labor Insurance, Legal Malpractice, Negligence, Law, Catastrophic Injury, Product Liability, Specialties Include: Personal Injury, Premises Liability, Product Property Damage Labor Law, Legal Malpractice, Medical Liability Malpractice, Negligence, Personal Injury, Premises Liability, Torts & Product Liability 3 Best Individual Mediator 3 Best Individual Mediator 3 3 Best Individual Arbitrator Best Individual Arbitrator
Hon. E. Michael Kavanagh Peter J. Merani, Esq. Michael R. Rossi, Esq. Former Assoc. Justice, Appellate Division, Hearing Officer Hearing Officer 1st & 3rd Depts. Specialties Include: Specialties Include: Specialties Include: Personal Injury, Property Damage, Labor Law, Insurance, Labor Law, Negligence, Premises Commercial, Construction, Business Product Liability, Insurance Coverage, Liability, Product Liability Valuation, Insurance Coverage, Employment, Construction, International Professional Malpractice, Medical Malpractice, Nursing Home, Labor Law 3 Best Individual Arbitrator 3 Best Individual Mediator 3 Best Individual Arbitrator
Hon. Peter B. Skelos Hon. Ira B. Warshawsky Former Assoc. Justice, Appellate Division, Fmr. Justice of the Supreme Court, Nassau 2nd Dept. County - Commercial Division Specialties Include: Specialties Include: Commercial, Construction, Labor Law, Business Claims and Disputes, Class Actions, Insurance Coverage, Professional Malpractice, Construction, Contracts, E-Discovery, Catastrophic Injury Employment, Professional Malpractice
3 Best Individual Mediator 3 Best Individual Arbitrator
9 of NAM’s Mediators voted in the top 10 “Best Overall Mediator” category in 2016 by The New York Law Journal. 8 of NAM’s Arbitrators voted in the top 10 “Best Overall Arbitrator” category in 2016 by The New York Law Journal.
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The Dementia Crisis By Robert Abrams, Editor
ementia, of which there are over 100 types, death in the United States. The World Health Organiza- including, but not limited to, Alzheimer’s dis- tion (WHO) has called dementia a “global epidemic.”10 ease,1 vascular dementia,2 dementia with Lewy Victims of dementia include famous people such as D3 4 bodies and frontotemporal dementia, is a: President Ronald Reagan, Senator Barry Goldwater, the syndrome – usually of a chronic or progressive nature husband of Supreme Court Justice Sandra Day O’Connor, – in which there is deterioration in cognitive function Civil Rights leader Rosa Parks, sports legend Sugar Ray (i.e. the ability to process thought) . . . It affects mem- Robinson, as well as many entertainment icons including ory, thinking, orientation, comprehension, calculation, Rita Hayworth and Robin Williams, who was believed 11 learning capacity, language and judgment. . . . The to have had Lewy Body Dementia. Most of dementia’s impairment in cognitive function is commonly accom- victims, however, are everyday people, no different from panied, and occasionally preceded, by deterioration those of you reading this article. in emotional control, social behavior, or motivation.5 The financial and business devastation caused by dementia not only affects the victims but also the victims’ Approximately 47 million people have dementia loved ones, co-workers, neighbors, communities, and worldwide,6 over 20 percent of whom reside in the business partners. Cognitive decline is not only emotion- United States.7 By 2050, 135 million people worldwide ally painful but often simultaneously requires one or are projected to have dementia8 and similar growth of more family members to participate in providing care.12 this disease is expected to increase proportionately in the As the dementia progresses, basic care, such as bathing, United States.9 dressing, toileting and eating, may need to be provided. None of us are immune from this debilitating and Providing such care is physically and mentally challeng- deadly disease, which, according to the U.S. Centers for ing, and may require other family members to forgo Disease Control (CDC), is now the sixth leading cause of responsibilities such as work and familial obligations.13
Robert Abrams ([email protected]) is a founding member and Executive Partner of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP. He is an adjunct professor at and co-founder of Touro Law Center’s Aging and Longevity Law Institute. A former Chair of both the Elder and Health Law Sections of the New York State Bar Association, he has edited and/or written numerous books and articles for NYSBA, including the treatise Guardianship Practice in New York State; The Legal Manual for New York Physicians, and the New York State Public Health Legal Manual. In 1995, he created Health Decision Making Day (renamed the Mitchell Rabino National Healthcare Decision Day), which has successfully informed tens of thousands of people throughout New York and the United States about the importance of advance directives.
NYSBA Journal | January 2017 | 9 to us for strength, assistance and knowledge at the In addition to the personal toll on the individual with worst times in their lives. In order to meet its duty, the dementia and his or her loved ones, there is also a sub- bar must prepare now – tomorrow is too late! stantial financial cost. The average per-person cost of care for an individual with dementia is estimated to be tens of As evidenced by the contributions made by judges, thousands of dollars each year.14 New Yorkers requiring lawyers and law students in this special issue of the Jour- nursing home or other specialized care may incur annual nal, I have no doubt that New York’s legal community costs in excess of $200,000.15 The financial challenges to will respond to Judge Prudenti’s call for action. provide care and a safe environment for an individual Examples of the commitment of New York’s judges with dementia can result in serious financial hardship and attorneys can be found in the articles, Dementia in the
The personal, financial and business costs of dementia have serious and, in some cases, potentially catastrophic legal consequences. and possible impoverishment for the individual and his Courtroom and Perspectives on Dementia, the Legal Profession or her family. and the Law. Our colleagues who authored these articles Further, the societal costs of dementia are staggering acknowledge our collective desire to fulfill our respective and growing. According to a 2013 study conducted by professional obligations in a manner that is understand- the RAND Corporation Center for the Study of Aging, ing of and sensitive to the special needs of individuals “[t]he monetary cost of Dementia in the United States with dementia, their loved ones and those who provide ranges from $159 billion to $215 billion dollars annually, them with care. Such an understanding requires legal making the disease more costly to the nation than either professionals to have the skills to distinguish between heart disease or cancer.”16 The Alzheimer’s Association Dementia, Mental Illness and Other Causes of Decline, as believes the cost of dementia care is even higher than that well as provide immediate and timely assistance, to the reported by RAND and projects that by the year 2050, extent possible, to individuals “recently diagnosed with Alzheimer’s disease will cost the United States over $1 early-stage dementia.” trillion.17 As noted in the articles Dementia and the Law and Prov- Not surprisingly, the personal, financial and busi- ing Your Client’s Diminished Mental Capacity Post-Death, ness costs of dementia have serious and, in some cases, there are many laws that address the consequences of potentially catastrophic legal consequences. While we in diminished mental capacity both prior and subsequent to the legal profession cannot prevent the occurrence of this death. These laws vary in their scope and effectiveness. destructive and deadly disease, we can empower our cli- They also fail to establish a coordinated legal frame- ents to prepare for and/or minimize the legal challenges work that adequately addresses the legal implications of they may face if they, a loved one or business partner dementia in an efficient and comprehensive manner. have dementia. Even statutes such as Article 81 of New York’s Mental In this light, the Honorable A. Gail Prudenti18 urges Hygiene Law, which was specifically designed and enact- the legal professional to address the dementia crisis in a ed to address the legal and personal needs of individu- swift, professional and sensitive manner: als with diminished mental capacity, fail to adequately The dementia epidemic has forced the legal profession address critical substantive matters. Moreover, statutorily to re-think and re-focus on how it will address the imposed time frames which were enacted to meet the cares and concerns of our rapidly aging population needs of alleged incapacitated persons (AIP) are routinely and families in crisis. As they have with every other ignored, causing delays which sometimes deprive the broad societal issue, lawyers must be prepared to meet AIP of receiving the care and services they require and their rightful burden by counseling their clients in which almost always result in additional costs and undue a professional, caring manner with information and stress to the AIP, family members and other participants advice to both protect and to guide affected families in the proceeding. through a myriad of difficult situations. The legal profession can and must do better to ensure What exacerbates this problem even further is the that laws are properly developed and enforced. More- large number of people who will be afflicted with over, we must continue our dialogue with representatives or affected by dementia. The numbers of those with of other disciplines, most notably geriatricians, neurolo- dementia is simply staggering and is forecast to gists and other physicians; scientists with an expertise on explode exponentially in the years to come. We have dementia-related research; and health care professionals, an obligation to meet the concerns of clients who look particularly those familiar with how and where individu-
10 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS als with dementia and their family members access care 2. “Vascular dementia is a decline in thinking skills caused by conditions and services. As Michael Miller, Esq. and Robert Freed- that block or reduce blood flow to the brain, depriving brain cells of vital oxy- gen and nutrients. Vascular dementia is widely considered the second most man, Esq. remind us, we cannot cure or treat dementia, common cause of dementia after Alzheimer’s disease, accounting for 10 per- but we can minimize the legal and financial obstacles that cent of cases.” Alzheimer’s & Dementia, Vascular Dementia, Alzheimer’s Assoc., further exacerbate this debilitating and deadly disease for www.alz.org/dementia/vascular-dementia-symptoms.asp#symptoms. our clients and our loved ones. 3. “Dementia with Lewy bodies (DLB) is a type of progressive dementia that leads to a decline in thinking, reasoning and independent function In this light, in cooperation with NYSBA, Touro Law because of abnormal microscopic deposits that damage brain cells over time.” Center’s Aging and Longevity Law Institute and many of Alzheimer’s & Dementia, Dementia with Lewy Bodies, Alzheimer’s Assoc., www. my colleagues throughout New York State, we will dedi- alz.org/dementia/dementia-with-lewy-bodies-symptoms.asp. cate 2017 to providing the legal profession with informa- 4. “Frontotemporal dementia (FTD) describes a clinical syndrome associ- ated with shrinking of the frontal and temporal anterior lobes of the brain. . tion and resources that will help us meet the needs of . . As it is defined today, the symptoms of FTD fall into two clinical patterns individuals with dementia and their family members. that involve either (1) changes in behavior, or (2) problems with language.” Beginning in February, we will launch the Guardianship Frontotemporal Dementia Information Page, Nat’l Inst. Neurological Disorders & Stroke, www.ninds.nih.gov/disorders/picks/picks.htm. Quality Initiative which will be a 12-month collaboration 5. Media Center, Dementia, Fact Sheet April 2016, WHO, www.who.int/ between New York judges and attorneys. We will also mediacentre/factsheets/fs362/en/. finalize an update to the NYSBA treatise Guardianship 6. Id. Practice in New York State. Finally, in June 2017, we will 7. Approximately 10 million Americans have dementia. “An estimated 5.4 present a special program on “Dementia, Science and the million Americans of all ages have Alzheimer’s disease in 2016.” Alzheimer’s Law,” which will review alternatives on how legal capac- Assoc., 2016 Alzheimer’s Disease Facts and Figures 17 (2016). ity should be determined. 8. Media Center, Dementia, Fact Sheet April 2016, WHO, www.who.int/ Before closing, I’d like to thank the current and mediacentre/factsheets/fs362/en/. past leaders of NYSBA who have provided me with 9. See Alzheimer’s Assoc., supra note 7, at 22. Some studies show that the ever-increasing rates of dementia may not be as extreme as publicized. Kara the opportunity to participate in various projects, like Gavin, Dementia on the downslide, especially among people with more education, this special Journal issue, and my partners at Abrams, study finds, Univ. of MI. Health Sys. Blog (Nov. 21, 2016), www.uofmhealth. Fensterman, Fensterman, Eisman, Formato, Ferrara & org/news/archive/201611/dementia-downslide-especially-among-people- more-education. Wolf, LLP who encourage and support my participa- 10. WHO, The Epidemiology and Impact of Dementia: Current State and tion. I must also acknowledge David Wilkes, editor-in- Future Trends 1 (2015). chief of the Journal, Dan McMahon, director of Publica- 11. Rebecca Robbins, How Lewy Body Dementia Gripped Robin Williams, Sci. tions, Kate Mostaccio, in-house editor of the Journal, American (Sept. 30, 2016), https://www.scientificamerican.com/article/ and Erin Corcoran, graphic designer, for their guid- how-lewy-body-dementia-gripped-robin-williams1/. ance, support and collegiality. I also extend my grati- 12. Media Center, Dementia, Fact Sheet April 2016, WHO, www.who.int/ tude, appreciation and respect to the dedicated authors mediacentre/factsheets/fs362/en/. who have contributed their expertise to this historic 13. Id. issue of the Journal. Finally, I thank my wife, Linda, 14. Michael D. Hurd et al., Monetary Costs of Dementia in the United States, 368 New Eng. J. Med. 1326, 1329 (Apr. 2013). and my daughters, Dana and Tracey, who provide me 15. MetLife, Market Survey of Long-Term Care Costs: The 2012 MetLife with daily reminders that our greatest accomplishment Market Survey of Nursing Home, Assisted Living, Adult Day Services, and is to love and be loved. n Home Care Costs 19 (Nov. 2012). 16. Cost of Dementia Tops $159* Billion Annually in the United States, Rand 1. Alzheimer’s disease is the “most common form of dementia” and is a Corp. (Apr. 3, 2013), www.rand.org/news/press/2013/04/03.html. “progressive disease beginning with mild memory loss possibly leading to loss of the ability to carry on a conversation and respond to the environ- 17. See Alzheimer’s Assoc., supra note 7, at 56. ment.” Healthy Aging Home, Health Information for Older Adults, Alzheimer’s 18. Hon. A. Gail Prudenti, Hofstra Law, http://law.hofstra.edu/directory/ Disease, CDC, www.cdc.gov/aging/aginginfo/alzheimers.htm. administration/prudenti/. In Memoriam
William Eric Andersen Irwin Durben James J. Kirisits Anthony L. Pagones Andrew Rudyk New York, NY Floral Park, NY Buffalo, NY Beacon, NY Maplewood, NJ Robert Colan Eric J. Groper Marcy E. Kurtz Eugene D. Pitaro Steven M. Schlussel Garden City, NY Monticello, NY Houston, TX Flushing, NY Port Washington, NY Edwin R. Deyoung Robert F. Hudson Daniel P. Maldonado Clarence D. Rappleyea Elliott C. Winograd Dallas, TX Miami, FL Cortlandt Manor, NY Chenango Forks, NY Rockville Centre, NY Donald G. Drapkin Roy S. Israel Robert L. Markovits Richard I. Reitkopp New York, NY Monsey, NY Stockbridge, MA Rochester, NY Andrew D. Kaizer Robert A. Melillo Rita Rosenberg White Plains, NY Locust Valley, NY Long Beach, NY
NYSBA Journal | January 2017 | 11 Dementia and the Law By Rose Mary Bailly and Robert K.P. Cannon
system can be frustrating for practitioners, it can be hen Robert (hereinafter “Bob”) Abrams, Esq., overwhelming and bewildering for individuals with suggested we write an article on the multitude dementia, in particular their loved ones who must Wof New York laws that impact older individu- navigate and overcome legal barriers as they struggle als with dementia and their families, he was eager to offer to adjust to their new reality. the following perspective and guidance: As members of the legal community, we lack the skill With few exceptions, America’s system of legal juris- and training required to develop a cure or treatment prudence is reactive in nature and often the product of compromise, monetary considerations, and an imbal- Rose Mary Bailly is a Program Advisor to the Government Law Center ance of political power. Our response to the legal of Albany Law School, Albany, New York. She is the author of Thomson implications of dementia is no different. West’s Practice Commentaries to Article 81 of the New York Mental A hodgepodge of laws were designed or repurposed, Hygiene Law (Guardianship Law) and has written and lectured on at least to some degree, to address legal issues con- incapacity and abuse and exploitation of vulnerable adults. Robert K. fronted by individuals with dementia and their loved P. Cannon is an associate at Abrams, Fensterman, Fensterman, Eisman, ones. These laws vary in effectiveness and collectively Formato, Ferrara & Wolf, LLP. Mr. Cannon concentrates his practice in fail to create a coordinated response to this unprec- elder law, special needs planning, estate planning, estate administration edented public health emergency that affects tens of and guardianship. Prior to joining Abrams Fensterman, Mr. Cannon assist- millions of Americans. ed Bob Abrams in creating the Aging and Longevity Law Institute for the Touro Law Center, serving as the Institute’s Inaugural Coordinator. As lawyers we must advocate for and counsel our clients within the confines of the legal system that our legislative leaders have created. While the current
12 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS
for dementia. We can, however, help and comfort our eficial to the community which relate to the needs, abili- clients by ensuring we act with sensitivity, efficiency, ties, resources, opportunities, rights, entitlements, and and a modicum of predictability, as we assist them in 7 navigating the dementia-related legal maze. other issues affecting older people in New York state.” The activities of the office follow the requirements of While researching and writing this article, Bob’s the federal Older Americans Act of 1965, as amended.8 observations remained at the forefront of our minds. This Of special note is the New York State Legal Services article demonstrates that, although the legal system’s Initiative, a collaboration facilitated by Bob, endorsed approach to dementia has evolved as our knowledge by Governor Cuomo, and run by the state Office for the and understanding of the disease has grown, the sheer Aging.9 The initiative’s purpose is to increase access to breadth and complexity of law in this field present chal- affordable legal assistance to three targeted population lenges to attorneys and laypersons. The purpose of this groups, including New York’s older adults, with the ulti- article is to provide the reader with a sampling of the mate aim being to ensure equal access to justice.10 many laws that not only address the issues facing the individual with dementia but also the laws designed to Housing and Community Living ease the burden on the family and society as a whole. It is critical that the law encourages older individuals, New York ranks among the top four states with the including individuals with dementia, when appropriate, highest number of older adults, coming in just behind to remain in the community. This concept became an Texas with 2.9 million people age 65 and older.1 In New integral part of the law following the 1999 U.S. Supreme York, the population of individuals 65 or older in 2015 Court ruling in Olmstead v. L.C.,11 wherein the court held represented 15 percent of the population,2 and the aging that states must, in accordance with the Americans with of the Baby Boomers gives us every reason to believe the Disabilities Act, provide community-based treatment percentage will grow. New York has taken into account for persons with mental disabilities.12 In response, New its older population, a significant portion of which suffers York State developed the Olmstead Implementation Plan with dementia, by developing laws that protect individu- that addresses issues, including but not limited to, inte- als as they age. grated housing, transportation, and community services Indeed, Governor Andrew Cuomo recently signed to ensure individuals with disabilities, including older two new laws relating to caregiving for older adults, that adults with dementia, receive services in the most inte- affirm New York’s continuing commitment to its aging grated setting appropriate to their needs.13 The follow- population.3 ing laws have been enacted to enhance the protections The Caregiver Advise, Record, and Enable Act, afforded to older individuals living in the community: Chapter 391 of the Session Laws of 2016,4 amends the Discrimination. It is illegal to discriminate, in housing Public Health Law to require that “hospitals allow and public accommodations, on the basis of age, disabil- patients to formally designate a caregiver before they ity, familial status – having children under age 18, and leave the hospital, or are transferred to another facility other criteria.14 . . . [and] hospital workers to provide the caregiver with Other Tenant Protections. Tenants, or their spouses liv- instruction or training on how to perform tasks for the ing with them, who are 62 years or older, or who will turn patient at home, such as changing bandages or adminis- 62 during the term of their lease, may notify their land- tering medication.”5 lord, in writing, of their intention to move and terminate Chapter 471 of the Session Laws of 2016 amends the the lease if they are certified by a physician as no longer Education Law to create a new job category known as able to live independently.15 Moreover, persons who are Advanced Home Health Aides.6 These individuals will 62 years of age or older and who live in buildings being receive additional training and, acting under the supervi- converted to cooperatives or condominiums in New York sion of a licensed registered professional nurse, will carry City,16 and Nassau, Rockland, and Westchester counties, out advanced tasks in a person’s home. Thus, aging New and other municipalities are entitled to remain in their Yorkers, including those with dementia, will be able to apartments without buying and may retain all rights of remain in their homes and their communities instead of rent-regulated tenants.17 institutional settings. Naturally Occurring Retirement Communities (NORC). This article discusses some additional laws that pro- NORC programs for neighborhoods of single-family tect New York’s vulnerable population. This list is not homes and low-rise apartment buildings that have exhaustive, but illustrates the variety of ways the public become densely populated with older individuals help policy of the state is mindful of its aging citizens. them “age in place” and prevent isolation and alienation. NORC funding makes possible health care aid, transpor- Civil tation, and other services that allow the occupants to live Recognition of an Aging Population independently in their homes.18 The state Office for the Aging was created to inform “the The Enriched Housing Program. This program, licensed public, especially the elderly themselves, on subjects ben- by the New York State Department of Health, offers
NYSBA Journal | January 2017 | 13 community living arrangements with supportive ser- of information, and privacy.27 In addition, all patients in vices primarily for people 65 years of age or older who New York State hospitals have a right to receive a writ- are unable to perform some activities of daily living. ten discharge plan before they are discharged from the Program services include assistance with personal care, hospital. The plan should describe the arrangements for meals, shopping, housekeeping, and a 24-hour, on-call health care services required upon a patient’s discharge, emergency service.19 which must be secured or reasonably available to the Access to Home Program. This program provides financial patient prior to discharge.28 Patient privacy in health assistance to property owners to make homes accessible for care facilities is largely governed by the Health Insurance low- and moderate-income persons with disabilities.20 Portability and Accountability Act (HIPAA).29 Ability to Drive. Depending on where they reside, an Decisions by Surrogates. An individual, known as the older individual’s ability to drive may have an enormous principal, can execute a health care proxy appointing an impact upon his or her ability to remain in the commu- agent to make health care decisions on the principal’s nity. An individual’s ability to drive is dependent upon behalf, in the event the principal is unable to make such
It is critical that the law encourages older individuals, including individuals with dementia, when appropriate, to remain in the community. the individual’s mental and physical condition and ability decisions.30 In the absence of a validly executed health to follow traffic laws and rules, not the individual’s age. care proxy, a surrogate from a prioritized list may make Pursuant to New York’s Vehicle and Traffic Law § 506, if the medical decisions for a patient in the event the patient commissioner of Motor Vehicles has reasonable grounds to lacks capacity to make such decisions personally, and did believe that an individual is not qualified to drive, the com- not previously make such decisions.31 missioner may require such person to submit to an exami- The Attorney General Medicaid Fraud Control Unit nation to determine his or her qualifications.21 investigates and prosecutes individuals and companies responsible for improper or fraudulent Medicaid billing Financial Assistance with Housing schemes committed by hospitals, nursing homes, phar- Real Property Tax Credit. This state tax credit program macies, doctors, dentists, nurses, and other health care assists eligible elderly and moderate-income homeown- entities billing the Medicaid program.32 ers and renters.22 Real Property Tax Exemption. This exemption, known as Financial Planning the circuit-breaker, allows tax exemptions to homeowners It is critically important for individuals of all ages, in aged 65 and older if they meet certain requirements.23 particular older adults, to implement a plan to ensure STAR Property Tax Exemption. This exemption offers that their financial needs, and the financial needs of couples over the age of 65 who own their home or co-op their family and loved ones, are protected in the event apartment and meet residency and income guidelines an the individual can no longer handle his or her affairs. “enhanced” school tax rebate under the STAR program.24 As practitioners, it is important to be cognizant of the Senior Citizen Rent Increase Exemption (SCRIE). This potential financial impact that a dementia diagnosis can exemption grants certain exemptions from rent increases have not just on the victims and their loved ones but to tenants who are senior citizens. If a tenant or tenant’s also upon their employees, co-workers, and business spouse is 62 years of age or older living in a rent-regu- partners. For that reason, laws have been enacted to lated apartment, with a combined household income at ensure that financial devastation can be avoided for the or below the income eligibility level and paying at least individual who plans ahead. one-third of their disposable income toward their rent, Joint Bank Accounts. Individuals may hold money in they may qualify.25 their accounts jointly with another individual, and each Sharing a home. The law permits tenants to share their person has full access to the account with the right of apartments with a roommate who is not on the lease, thus survivorship in the proceeds of the account.33 allowing older adults on fixed incomes to share living Joint Bank Account for Convenience Only. The owner of expenses.26 this type of account adds another individual’s name to the account for purposes of convenience only, i.e., check Health Care writing, bill paying, transfers, and withdrawals. The indi- The rights of a patient in a hospital or nursing home vidual listed for convenience does not own the money in include, among others, the right to autonomy, disclosure the account.34
14 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS
Totten Trust Account. The owner of this type of account is not absolute. The National Voter Registration Act of directs that the amount remaining in the account at the 1993 authorizes states to remove registrants from official time of the owner’s death be paid to a named benefi- lists of eligible voters “by reason of criminal conviction ciary.35 or mental incapacity.”44 Pursuant to New York Election Powers of Attorney. An individual can create a power Law, “no person who has been adjudged incompetent by of attorney for financial and estate planning thereby order of a court of competent judicial authority shall have appointing an agent to manage the individual’s financial the right to register for or vote at any election in this state affairs without court intervention; however, the agent can unless thereafter he shall have been adjudged competent be required by the court to account for the management pursuant to law.”45 of the individual’s affairs.36 In a recent NAELA article titled, Voting Under Wills and Trusts. These documents are used to protect Guardianship: Individual Rights Require Individual Review, and preserve and distribute property during lifetimes or Michele J. Feinstein and David K. Webber propose that no at death.37 state should revoke an individual’s right to vote, even if that person has been declared incapacitated, “without an Protection of Rights and Protection Against Abuse individualized inquiry into whether the person truly lacks and Exploitation the capacity to understand and participate in the electoral A critical function of government is ensuring the rights process.”46 Despite the obvious importance of voter rights, of its citizen body are protected. Arguably, this function there appears to be no published New York case law is most frequently put to the test when preserving the addressing an incapacitated person’s right to vote. rights of vulnerable populations. As many commentators The following is an overview of some of the protec- have observed, the manner in which a government treats tions afforded to older adults against abuse and exploita- its most at-risk populations is a true measure of society. tion, including guardianships. The final sections of this article address a variety of New Protecting an Incapacitated Person. Parens patriae is a York laws that have been enacted to ensure that the basic Latin term meaning “parent of his or her country.”47 rights of older persons, including those with dementia, Black’s Law Dictionary defines the term as the legal are protected. doctrine by which the state is regarded “as a sovereign; Private Right of Action Against Residential Health Care the state in its capacity as provider of protection to those Facility. A patient of a residential health care facility who unable to care for themselves.”48 The state’s parens patriae suffers injuries as a result of being deprived of any right is a critical legal doctrine that authorizes the state to or benefit may maintain a private right of action. The N.Y. intervene in matters affecting individuals unable to care Public Health Law defines the right or benefit as one that for themselves and forms the basis for New York’s guard- is “created or established for the well-being of the patient ianship laws, including Article 81 of the N.Y. Mental by the terms of any contract, by any state statute, code, Hygiene Law (MHL). A court can appoint a guardian rule, or regulation or by any . . . federal statute, code, rule, to meet the personal or financial management needs of or regulation.”38 Injuries include, but are not limited to, an individual who either consents to the appointment “physical harm to a patient; emotional harm to a patient; or is found by the court to be unable to care for his or death of a patient; and financial loss to a patient.”39 her self, is at risk of harm because of that inability, and The remedies provided by the statute are in addition to fails to understand or appreciate that risk.49 Unlike its and cumulative with any other remedies available to a predecessors and the more inflexible Article 17-A of the patient, at law or in equity or by administrative proceed- Surrogate’s Court Procedure Act, MHL Article 81 allows ings, including tort causes of action, and may be granted courts to fashion orders of appointment tailored to the regardless of whether such other remedies are available specific needs of a particular incapacitated person.50 or are sought.40 Damages recovered will not impair Moreover, it requires that all guardians take into account Medicaid eligibility.41 Exhaustion of administrative rem- the incapacitated person’s personal wishes, preferences, edies is not required prior to the commencement of any and desires.51 action, and any waiver, by a patient or legal representa- Annulment of a Marriage of a Spouse Who Is Incapacitated tive, of the right to commence an action under this sec- or Has a Mental Illness and Protecting an Estate. An action tion, is null and void.42 can be maintained by any relative of a person with a Witnesses’ Testimony. Testimony can be preserved if a mental illness to annul a marriage on the ground that one party or a key witness is not expected to survive the time of the parties had a mental illness at the time of the mar- period necessary to commence an action and seek the riage.52 Moreover, a husband or wife is not considered disclosure in the context of it.43 a surviving spouse for purposes of asserting the right The Right to Vote. An individual’s right to vote is a cor- to an elective share against the deceased spouse’s will if nerstone of American democracy and, for many, one of the court determines that a valid “final decree or judg- few opportunities to engage in politics. However, despite ment of divorce, of annulment or declaring the nullity protection at both federal and state level, the right to vote of a marriage or dissolving such marriage on the ground
NYSBA Journal | January 2017 | 15 of absence . . . was in effect when the deceased spouse limited to, physical, psychological, emotional abuse, and died.”53 financial exploitation. Such abuse is perpetrated not only Adult Protective Services. Adult Protective Services by strangers but by family members and professionals. It responds to reported concerns about individuals in the is the government’s role to reduce the rates of abuse and community, without regard to their income, who have ensure that criminal acts committed against older adults no one willing or able to assist them and who may have and those that suffer with dementia are prosecuted. To mental or physical impairments that render them unable that end, New York County – and other counties through-
Older adults, in particular those who suffer with dementia, are extremely susceptible to abuse, including, but not limited to, physical, psychological, emotional abuse, and financial exploitation. to: (1) manage their own resources; (2) carry out the out New York – has established Elder Abuse Units to activities of daily living; or (3) protect themselves from address the needs and concerns of older crime victims physical abuse, sexual abuse, emotional abuse, active, and to enforce laws designed to protect older adults. passive or self-neglect, financial exploitation, or other The state’s criminal laws recognize that older adults hazardous situations.54 can fall victim to crime and punish the perpetrators of The Long-Term Care Ombudsman Program. The program, criminal acts, such as fraud and identity theft,60 offenses maintained by the Office for the Aging, advocates for that endanger the welfare of vulnerable elderly and residents by: (1) investigating and resolving complaints incompetent persons,61 and hate crimes, where the per- made by or on behalf of residents; (2) promoting the petrator intentionally commits a crime against an indi- development of resident and family councils; and (3) vidual who is 60 years of age or older.62 informing government agencies, providers, and the gen- eral public about issues and concerns impacting residents Conclusion of long-term care facilities.55 Although this article focuses on the bigger picture and Disclosure of Information to Investigators. Banking orga- provides an overview of some laws enacted to protect nizations are authorized to disclose an individual’s older individuals, we as lawyers must be cognizant of financial information to social services officials and the what we can do on an individual level to ensure the pro- Department of Social Services investigating financial tection of one of society’s most vulnerable populations. exploitation.56 We must recognize the need for sensitive and expert Order of Protection. A court can issue an order of pro- advice to assist our clients and their families as they navi- tection for any spouse, former spouse, parent, child, or gate through this “legal maze.” As we serve this vulner- member of the same family or household57 or to protect able population, we must strive to further our knowledge an incapacitated individual or an individual alleged to be and understanding not just of the laws referenced in this incapacitated.58 article but also of the other professional services available Mandatory Reporting of Abuse and Neglect in a Facility. to older adults, especially those suffering with dementia. Certain individuals are required to report abuse or As such, an interdisciplinary approach to this field must neglect of a resident in a health care facility. Such individ- be encouraged to ensure older adults and their families uals include the operator or employee of such facility, any receive all the services and support they require. n person under contract to provide patient care services in such facility, and any nursing home administrator, physi- 1. Admin. on Aging et al., A Profile of Older Americans: 2015, p. 6, https:// aoa.acl.gov/aging_statistics/Profile/2015/docs/2015-Profile.pdf. California cian, medical examiner, coroner, physician’s associate, (5.0 million); Florida (3.8 million); and Texas (3.1 million). specialist’s assistant, osteopath, chiropractor, physical 2. Quick Facts New York, U.S. Census Bureau, http://www.census.gov/ therapist, occupational therapist, registered professional quickfacts/table/PST045215/36 (last visited Dec. 7, 2016). nurse, licensed practical nurse, dentist, podiatrist, optom- 3. Governor Cuomo Signs Legislation to Support Family Caregivers, N.Y. State etrist, pharmacist, psychologist, licensed master social (Oct. 27, 2015), https://www.governor.ny.gov/news/governor-cuomo-signs- legislation-support-family-caregivers [hereinafter “N.Y. State”]. worker, licensed clinical social worker, speech patholo- 4. N.Y. Pub. Health Law Art. 94-cccc (McKinney 2016). gist, or audiologist.59 5. N.Y. State, supra note 3. Criminal 6. Press Release, N.Y. State Dep’t of Health, New York State Authorizes Advanced Home Health Aides, Enabling More New Yorkers to Live in Their Homes Older adults, in particular those who suffer with demen- and Communities (Dec. 2, 2016), https://www.health.ny.gov/press/releas- tia, are extremely susceptible to abuse, including, but not es/2016/2016-12-02_advanced_home_health_aides.htm.
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7. N.Y. Elder Law § 201 (McKinney 2004). 34. N.Y. Banking Law § 678 (McKinney 2011). Under NY property law, an 8. 9 N.Y.C.R.R. § 6651.2(f) (1987). account for convenience technically carries the presumption of survivorship, because most banks do not have such a designation as “convenience.” Due 9. Press Release, Governor Andrew M. Cuomo, Governor Cuomo Announces to that reason, most persons end up creating joint bank accounts, whereby Statewide Partnership to Improve Access to Legal Services for Vulnerable New the pre-deceasing joint tenant needs to make his intention clear on whether Yorkers (Sept. 12, 2012), https://aging.ny.gov/LivableNY/LegalServices/ the account was actually supposed to be joint or an account for “conve- PressRelease.pdf. nience.” 10. New York State Legal Services Initiative: Description of Initiative, N.Y. 35. N.Y. Est. Powers & Trusts Law 7-5.1–7-5.8 (McKinney 1993). State Office for the Aging, https://aging.ny.gov/LivableNY/LegalServices/ DescriptionOfInitiative.pdf. 36. N.Y. Gen. Oblig. Law, Art. 5, Tit. 15. 11. 527 U.S. 581 (1999). 37. N.Y. Est. Powers & Trusts Law, Arts. 3, 7 & 8 (wills & trusts) (McKinney 1993). 12. Id. at 607. 38. N.Y. Pub. Health Law § 2801-d(1) (McKinney 2009). 13. Olmstead: Community Integration for Every New Yorker, N.Y. State, https:// www.ny.gov/programs/olmstead-community-integration-every-new-yorker. 39. Id. 14. N.Y Civ. Rights Law § 40-c (McKinney 2003); N.Y. Exec. Law § 292(21) 40. Id. at (4). (McKinney 2016); see also Andrew Schere & David Robinson, Housing Law; 41. Id. at (5). Elder Law Handbook 9:3.1 (Supp. 2010). 42. Id. at (4), (7). 15. N.Y. Real Prop. Law § 227-a (McKinney 1999). 43. CPLR 3102(c) (McKinney 2011). 16. N.Y. Gen. Bus. Law § 352-eeee (McKinney 1988). 44. 42 U.S.C. § 1973gg-6(a)(3)(B)(2000). 17. N.Y. Gen. Bus. Law §§ 352-eee (McKinney 1988). 45. N.Y. Elec. Law § 5-106(6) (McKinney 1976). 18. N.Y. Elder Law § 209 (McKinney 2016). 46. Michele J. Feinstein and David K. Webber, Voting Under Guardianship: 19. N.Y. Soc. Serv. Law § 461 (McKinney 1984). Individual Rights Require Individual Review, 10 Naela J. 125, 126 (2014). 20. N.Y. Priv. House. Fin. Law, Art. XXV. 47. Black’s Law Dictionary 1287 (10th ed., 2014). 21. N.Y. Veh. & Traf. Law § 506(1) (McKinney 1973). 48. Id. 22. N.Y. Real Prop. Tax Law § 467 (McKinney 2016). 49. N.Y. Mental Hyg. Law § 81.02 (McKinney 1992). 23. N.Y. Tax Law § 606(e) (McKinney 2016). 50. In re Maher, 207 A.D.2d 133, 139 (2d Dep’t 1994). 24. N.Y. Real Prop. Tax Law § 425 (McKinney 2016). 51. N.Y. Mental Hyg. Law § 81.01 (McKinney 1992). 25. N.Y. Real Prop. Tax Law § 467-b (McKinney 2016). 52. N.Y. Dom. Rel. Law § 140(c) (McKinney 1978). 26. N.Y. Real Prop. Law § 235-f (McKinney 1985). 53. N.Y. Est. Powers & Trust Law 5-1.2(a)(1) (McKinney 1993). 27. N. Y. Pub. Health Law § 2803 (McKinney 2016), amended by 2016 Sess. 54. N.Y. Soc. Services Law, Art. 9-B. Law Ch. 450 (A.7714-C); 10 N.Y.C.R.R. art. 3 (1991). 55. N.Y. Elder Law § 218 (McKinney 2016). 28. 10 N.Y.C.R.R. § 405.9 (2013). 56. N.Y. Banking Law § 4 (McKinney 2007). 29. Pub. L. 104-191, 110 Stat. 1936 (1996). 57. N.Y. Fam. Ct. Act § 842 (McKinney 2013). 30. N.Y. Pub. Health Law, Art. 29-C. 58. N.Y. Mental Hyg. Law § 81.23 (McKinney 2004). 31. N.Y. Pub. Health Law, Art. 29-CC (the “Family Health Care Decisions 59. N.Y. Pub. Health Law § 2803-d (McKinney 2004). Act”). 60. N.Y. Penal Law, Art. 190 (McKinney 2016). 32. Medicaid Fraud Control Unit, N.Y. State Office of the Attorney Gen., http://www.ag.ny.gov/bureau/medicaid-fraud-control-unit. 61. N.Y. Penal Law, Art. 260 (McKinney 2016). 33. N.Y. Banking Law § 675 (McKinney 2011). 62. N.Y. Penal Law, Art. 485 (McKinney 2016).
NYSBA Journal | January 2017 | 17 My Doctor Said … So My Attorney Said The Legal Challenges for Recently Diagnosed Individuals By Cora A. Alsante and Ellyn S. Kravitz
n a daily basis, regardless of our profession, each 9. Withdrawal from work or social activities; and of us multitask. The proverbial “Where are my 10. Changes in mood and personality.1 Oglasses?” when they are resting on your head to People go to doctors on a frequent basis when any “What did I come into this room for?” does not discrimi- physical symptoms arise. Yet, when it comes to memory nate by age. or cognitive issues, individuals are less willing to seek Our memory changes as we get older. So how do we medical attention. know if we are just aging or have signs of the onset of An individual with a diagnosis of the onset of demen- dementia? tia can camouflage his or her actions in a variety of ways. The Alzheimer’s Association provides 10 warning signs of Alzheimer’s disease: Cora A. Alsante is the leader of the Elder Law & Special Needs Practice 1. Memory loss that disrupts daily life; and a partner in the Tax and Trusts & Estates Practices at Hancock 2. Challenges in planning or solving problems; Estabrook, LLP. Ms. Alsante focuses her practice on estate planning, trusts, 3. Difficulty completing familiar tasks; planning for the elderly and disabled, and estate and trust administration. 4. Confusion with time or place; She represents individuals and assisted living and skilled nursing facilities. 5. Trouble understanding visual images and spatial Ellyn S. Kravitz is a partner at Abrams, Fensterman, Fensterman, Eisman, relationships; Formato, Ferrera, and Wolf, LLP. She concentrates her practice in elder law, 6. New problems with words in speaking or writing; special needs planning, estate planning, estate administration, guardian- 7. Misplacing things and losing the ability to retrace ship, and veterans’ benefits. Ms. Kravitz is an authority on issues affecting steps; adults and children with disabilities, and the senior population. 8. Decreased or poor judgment;
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Betty, for example, is 72 years old. She has become a little care decisions on his or her behalf in the event that he or forgetful. She can’t remember where she put her keys or she is unable to do so.4 what she ate for dinner last night. She plays bridge once New York State law provides that an adult is pre- a month with friends, and most recently she could not sumed competent to execute a Health Care Proxy and follow the game. She blames it on doing too many things appoint an agent unless he or she is declared incompetent at the same time. After her last card game, she became by a court and a guardian has been appointed pursuant extremely frustrated and finally decided to see her prima- to Article 78 of the Mental Hygiene Law or Article 17-A ry-care physician. Betty explains to her doctor what she of the Surrogate’s Court Procedure Act.5 has been experiencing lately and her doctor recommends The New York State Department of Health’s website some neurological testing. At her follow-up appointment, provides a sample form that is recognized by hospitals her doctor gives her the diagnosis: the onset of dementia. and physicians. Once the form is complete, it must be Betty’s doctor suggests that she consider getting her legal signed by the principal before two disinterested wit- affairs in order. nesses. The capacity threshold to appoint an agent under While the doctor’s suggestion is a good one, an elder a Health Care Proxy is a low one. The statute, however, law attorney knows that there is more involved than does not set forth a standard of capacity to execute such the execution of legal documents. An attorney must a document. recognize and be sensitive to the emotional aspects of Even with a Health Care Proxy, Betty can continue to the diagnosis on the client, the family dynamics, and the make her own health care decisions until a determination challenges that result from such a devastating diagnosis. is made by her physician that she lacks the capacity to After Betty has had some time to process the diagno- make decisions. The Health Care Proxy does not expire sis, she decides that she should consult with an attorney and continues to be valid even when she becomes inca- to get her affairs in order for both personal decision- pacitated. making and property management as she expects that her We will also recommend that Betty sign a Living Will, mental status will decline. which is a written declaration of her wishes concerning For some of our clients, like Betty, an initial meet- medical treatment, such as life-sustaining treatment. ing with an attorney to discuss long-term care issues is The Living Will will be honored in any state, unlike the their first exposure to the legal world. These clients are Health Care Proxy, which we can only guarantee will be apprehensive and untrusting. It takes a skilled elder law recognized in New York State. attorney to listen, understand and present options and We also explain to Betty that she should consider com- recommendations in a clear and concise manner. pleting a Medical Orders for Life-Sustaining Treatment Rather than instill panic, an elder law attorney can (MOLST) form with her doctor, which will outline her assist with the creation of a plan to assure clients that wishes for treatment as her dementia progresses. their wishes will be met. Once the plan is in place, clients can concentrate on the activities that they enjoy most. Financial Decision-Making As elder law attorneys, we know that with a diagnosis For property management, we will recommend a Power of the onset of dementia, individuals will gradually lose of Attorney under N.Y. General Obligations Law Article the ability to think clearly. Their ability to participate 5, Title 15, where Betty can appoint an agent to manage meaningfully in the decisions regarding their finances her business and financial affairs.6 Betty must be very and health care is likely to deteriorate. It is important for careful in choosing her agent, as he or she can act on Bet- people in Betty’s position to clearly state his or her wishes ty’s behalf even while she is able to act on her own. The and make well-informed decisions now about his or her attorney must remind Betty that in order for the Power of person and finances. Attorney to be effective, her agent must acknowledge his So what would an elder law attorney recommend to or her appointment and sign the document as well. help Betty put her affairs in order? At the initial meeting, While clients are typically apprehensive about signing we can begin with a discussion of advance directives, documents and giving control to others, it is important to such as a Health Care Proxy,2 Living Will and Power of remind them that without such documents in place the Attorney.3 These types of documents allow individuals to alternative is a time-consuming and costly court proceed- appoint another trusted individual to step into his or her ing as set forth in Article 81 of the Mental Hygiene Law. shoes and act on his or her behalf if he or she becomes Most important, the client may not have the ability to incapacitated. These documents afford a certain amount select his or her guardian. of peace of mind and security to the client, assuring the An individual with a diagnosis of dementia may still client that his or her wishes and desires are clear. possess the capacity to execute a Power of Attorney. The determination of capacity should be on a case-by-case Health Care Decision-Making basis, taking into account a variety of factors, including A Health Care Proxy allows an individual, the principal, the individual’s familiarity with his or her assets and to appoint another individual, the agent, to make health family members.
NYSBA Journal | January 2017 | 19 Last Will and Testament purchase a Medigap policy which covers deductibles and While advance directives work during the client’s life- co-insurances.18 time, we, as elder law attorneys, must impress upon our The most important thing for clients to realize is that clients that they have the ability to control the disposition Medicare only provides benefits for skilled nursing care of their assets at the time of their passing. and for limited periods of time. Typically, a client with The threshold for establishing testamentary capacity is dementia requires assistance with their activities of daily extraordinarily low. It is less than what is required to sign living (ADLs),19 which is considered custodial care, not a Power of Attorney or conduct any other legal transac- skilled nursing care. The only public-sponsored insur- tion. The testator must: ance program that provides caregiver benefits for some- 1. Understand the nature and consequences of making one who requires custodial care is Medicaid. a Will. Medicaid is a federal program administered through 2. Know the nature and extent of his or her property. state and county agencies. It is a means-tested program 3. Know the natural objects of his or her bounty and for clients who are elderly, blind or disabled. In New relations with them.7 York State, there are various types of Medicaid programs. In our example, Betty must be able to identify family Clients can receive care at home or in a hospital/nurs- members, demonstrate an understanding of her assets ing home. The eligibility requirements vary for each and be able to articulate how she wants these assets dis- program. Clients with dementia may be eligible to enroll tributed at her death. in the Medicaid program to cover the cost of their home health aides provided that they are financially eligible to Trusts apply. Elder law attorneys often recommend Trusts to their cli- While long-term care insurance can offset the cost of ents, whether revocable or irrevocable. It is important for care, a diagnosis of the onset of dementia prevents an clients to understand the difference between these Trusts individual from purchasing such a policy. As such, these as a revocable trust will not provide the asset protec- policies need to be considered before any diagnosis. tion that an irrevocable Trust will provide after a period Long-term care insurance policies may provide benefits of time. The capacity standard for executing a Trust is to someone living at home, in an assisted living setting higher than that of a Will, which is similar to that required and/or in a skilled nursing facility. They are beneficial in to enter into a contract.8 that they provide a source of payment to allow the indi- vidual to remain at home as long as possible. Long-Term Care Costs In addition to legal documents, clients with a diagno- Planning Options sis of the onset of dementia will be concerned about At the initial meeting, the elder law attorney must also financing their long-term health care costs. Dementia address asset preservation planning options. Often clients is a chronic disease and individuals with dementia can are uncomfortable with the idea of divesting their assets. live a long life. An individual with the onset of dementia Saving money for a rainy day did not take into account may not require any assistance with his or her activities paying a home health aide and/or a nursing home. of daily living at the time of the diagnosis. However, We may suggest an irrevocable trust, a transfer of the as the disease progresses, medical needs will increase. client’s home with a reservation of a life estate, outright Individuals will look to Medicare,9 Medicaid,10 vet- gifting to family members, or simply adding a child to erans’ benefits,11 and long-term care insurance to pay a bank account for convenience purposes. We must be these costs.12 careful, however, to counsel our clients about the legal Often clients believe that Medicare will cover the cost consequences of these transfers to make sure they are in of all of their medical care. Who is eligible for Medicare? accordance with the client’s life and testamentary plan. All U.S. citizens or permanent residents can enroll in For our clients with business or partnership interests, Medicare when it is important to advise them that their interests will be 1. they attain age 65.13 considered resources for Medicaid eligibility and that 2. they are under age 65 and certified disabled or certi- transfers will need to be made now in order to protect fied blind.14 those interests. We must also discuss transitioning any 3. they are any age with End Stage Renal Disease or management role in these interests before capacity fur- ALS.15 ther diminishes. These are very difficult conversations Medicare is divided into four parts: Part A – Hospi- to have but are critical to proper representation of our tal and Skilled Nursing Benefits; Part B – Doctors and clients. Durable Medical Equipment; Part C – Managed Care; We will also need to advise clients with spouses that and Part D – Prescription Plan.16 There are deductibles for Medicaid eligibility purposes, Medicaid will consider and co-insurances to the Medicare program.17 Those clients and their spouses as “units” and will allow the who are enrolled in the Medicare program should also spouse to retain non-retirement resources of somewhere
20 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS between $74,820 and $119,220, a vehicle, an irrevocable trusted advisor to both the client with the diagnosis and burial account, life insurance with a face value not to those family members and/or friends that the client wants exceed $1,500, and retirement accounts in payout sta- involved in the planning process. The ultimate goal of the tus. They can also keep $2,980.50 of combined monthly elder law attorney is to promote dignity and quality of life income. In addition, clients can keep $14,850 in his or her for the clients that we represent. n own name and $50 in monthly income for incidentals and any excess monthly income will need to be paid to the 1. The Alzheimer’s Association, Know the Ten Signs, https://www.alz. org/national/documents/checklist_10signs.pdf (2009). nursing home. 2. N.Y. Pub. Health Law § 2981 (McKinney 2005) (PHL). We must also advise that clients with children who 3. N.Y. Gen. Oblig. Law § 5-1501 (McKinney 2009) (GOL). are certified disabled may transfer assets to that child 4. PHL art. 29-c. without adversely affecting their eligibility for certain government benefits. They must, however, be mindful of 5. PHL §§ 2981 (1), (2); (McKinney 2012). any government benefits the child may be receiving so as 6. GOL § 5-1501. not to jeopardize the child’s benefits. 7. In re Slade, 106 A.D.2d 914 (4th Dep’t 1984); In re Estate of Kumstar, 66 N.Y.2d 691 (1985). The Ambivalent Client 8. In re ACN, 133 Misc. 2d 1043 (Sur. Ct., N.Y. Co. 1986). 9. 42 U.S.C. § 1395 (1935). Often clients are overwhelmed with all the information and recommendations made by the attorney. The client 10. 42 U.S.C. § 1396 (2014). may become paralyzed and unable to focus and priori- 11. U.S. Dep’t of Veterans Affairs, Paying for Long Term Care, www.va.gov/ geriatrics/guide/longtermcare/Paying_for_Long_Term_Care.asp. tize the action needed to be taken. In certain situations, 12. U.S. Dep’t of Health & Human Services, Long-Term Care Insurance the attorney may require the input of other professionals, Costs, http://longtermcare.gov/costs-how-to-pay/what-is-long-term-care- including but not limited to, accountants, financial plan- insurance/long-term-care-insurance-costs/. ners and care managers. Care managers, in particular, 13. 42 C.F.R. § 406.12 (2012). can provide guidance regarding the diagnosis, access to 14. Id. required services and counseling. The care manager can 15. 42 C.F.R. § 406.12(b) (2012). also help clients identify and navigate their current needs 16. U.S. Centers for Medicare & Medicaid Services, What’s Medicare?, and help them to see what their future care needs will be. https://www.medicare.gov/sign-up-change-plans/decide-how-to-get- If clients are uncomfortable proceeding with any of medicare/whats-medicare/what-is-medicare.html. the above, we advise that there are crisis planning options 17. Id. available if they decide to wait until a nursing placement 18. Patricia Barry, Medigap or Medicare Advantage?, AARP Bulletin, www. aarp.org/health/medicare-insurance/info-09-2010/ask_ms_medicare__ is imminent. question_87.html (April 2014). As one can see, there is no cookie-cutter plan for a 19. Dementia Care Notes, http://dementiacarenotes.in/caregivers/toolkit/ client with a diagnosis of the onset of dementia. The adl/. uniqueness of an elder law practice is that each client 20. Gregory S. French, et al., Aspirational Standards for the Practice of Elder Law comes to the meeting with different needs, other illnesses with Commentaries, 2 Nat’l Acad. of Elder L. Attorneys 5 (2005), www.naela. and family issues. The totality of the circumstances must org/App_Themes/Public/PDF/Media/AspirationalStandards.pdf. be taken into consideration by the attorney in order to make the appropriate recommendations. Elder law attorneys must identify who their client is and determine if there are any conflicts of interest, espe- cially a spouse or other family members who attend the MEMBERSHIP TOTALS meeting. The National Academy of Elder Law Attorneys (NAELA), in November 2005, adopted the Aspirational Standards for the Practice of Elder Law with Commen- New Regular Members taries that was published in the NAELA Journal, Volume 1/1/16-11/23/16______8,028 20 II. These standards can serve as a guide for the elder New Law Student Members law attorney. 1/1/16-11/23/16______2,984 It is important for clients to realize that a diagnosis of dementia may not prevent one from properly planning for Total Regular Members as of the future. While these decisions may be overwhelming 11/23/16______6,421 for our clients and they may initially resist, we, as elder Total Law Student Members as of law attorneys, must recognize the importance of putting 11/23/16______6,924 our clients at ease with both their new diagnosis and the Total Membership as of options available to them to put their “legal house” in 11/23/16______69,345 order so that they can navigate the long road ahead. One of the goals of the elder law attorney is to become the
NYSBA Journal | January 2017 | 21 Distinguishing Dementia from Mental Illness and Other Causes of Decline
By Carolyn Reinach Wolf, Jamie A. Rosen, Dorothea Constas and Hindi Mermelstein
I. Introduction similarities and differences between them. Section III Whether an individual suffers from dementia, mental ill- will explore the issue of capacity and how these various ness or another cause of cognitive impairment, these con- symptoms affect legal representation from the perspec- ditions cause symptoms that worry potential clients, fam- tive of a privately retained attorney and from the view- ily members and caregivers, to the point of leading them point of a Mental Hygiene Legal Service attorney. Section to seek the advice of an attorney with experience in this IV provides a brief overview of several legal options area. Though there may be several legal questions that for clients and/or family members with mental illness, arise, in the end, all roads lead to capacity or lack thereof. Attorneys must develop the skill set to assess whether a client (or a client’s family member or loved one) has Carolyn Reinach Wolf, Esq., is an Executive Partner at Abrams, Fenster- capacity in a variety of different situations according to man, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP and Director various legal standards, and then advise that client as to of the Firm’s unique Mental Health Law Practice. Ms. Wolf represents how to best proceed to achieve his or her legal goal. The mental health and health care professionals and institutions on all issues attorney must keep in mind his or her ethical obligations related to mental health, substance abuse and capacity, among others, in representing a client with potential or actual dimin- which arise in the inpatient, outpatient, and community settings. Jamie A. Rosen, Esq., is an associate attorney at Abrams, Fensterman, LLP in ished capacity. In cases where a client may be unable to the Mental Health Law Practice. She received her J.D. from the Maurice make decisions on his or her own behalf due to some A. Deane School of Law at Hofstra University in 2013, where she was an type of mental impairment (or where the client is a family associate editor of the Hofstra Law Review. Hindi Mermelstein, M.D., member or loved one of a mentally impaired individual), FAPA is a board-certified psychiatrist and holds additional boards in both that attorney must then develop a plan that may include geriatric psychiatry and psychosomatic medicine. Dorothea Constas, executing appropriate legal planning documents or seek- Esq.,is a Principal and Supervising Attorney with Mental Hygiene Legal ing intervention through the court system to protect the Service, Appellate Division, First Department. Since 2005, Ms. Constas has best interests of the individual. been an Adjunct Professor at Fordham Law School in the Clinical Educa- Section II will discuss the common clinical syndromes tion Department teaching “Fundamental Lawyering Skills.” causing clinical dysfunction, with an emphasis on the
22 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS dementia or cognitive decline including advance direc- cognitive decline accompanied by loss of function.1 Over- tives, guardianship, and inpatient hospitalization. all, all dementias cause cognitive dysfunction, can and, Throughout this article please refer to the following over time, often will, impair judgment, decision-making, two case studies to guide the discussion. affect communication, and impede or prevent indepen- dent living. Though the trajectory of illness is universally Case Study #1 downward, the rate of progression is individual and the Maria, an 81-year-old woman, presents to your law office clinical symptoms are condition-specific. with her adult daughter, Anna, who encouraged her The primary hallmark of dementia is the cognitive mother to meet with you. Anna gives you a history of decline, usually involving memory and higher executive her mother always being a “difficult person to commu- functioning, such as abstraction, attention, concentration, nicate with” but says that they have a good relationship and planning or follow through. In Alzheimer’s disease, currently. Anna is an only child, is married and has three the most common form of dementia, the memory impair- children. Anna’s impression of her mother is that she is ment initially affects the most recent and progresses to “very depressed most of the time.” She is concerned that the most remote. Individuals have the greatest difficulty her mother may have early dementia. Anna describes her with new information, its registration (learning), recall, mother’s symptoms as “paranoid, delusional, irritable retention (memory) and retrieval. Eventually, long-term with a lack of focus and increasingly poor ability to care memory is affected as well. In frontal-temporal dementia, for herself.” She is worried that her mother could request the memory loss appears variable, almost unpredictable, to change her legal documents, such as her Health Care with changes in personality, loss of social skills and even Proxy, Power of Attorney and Will, all of which appoint perceptual distortions such as hallucinations.2 Anna. Anna is also concerned that due to her mother’s Early in the course of dementia, there may be depres- increasing paranoia, she could disinherit her and her sion as people struggle with the loss and their fear of the grandchildren. Anna admits that she had convinced her future. Paranoia is not uncommon, as seen in an elderly mother to see a geriatric psychiatrist who diagnosed her man who accuses his wife of stealing his glasses after with “Rule-out Untreated Geriatric Depression, Severe; once again forgetting where he placed them. Together Rule-out Typical Dementia, Rule-out Medical Causes.” with the apathy that occurs mid-course, the affected person becomes less able to negotiate his or her world Case Study #2 including relationships and roles. Murray, an 85-year-old man, comes to your office seeking From the medical expert perspective, the challenge legal advice on drafting advance directives and a Will. He is to determine the client’s diagnosis and clinical status. is mildly disheveled and there is something “off” about For example, in early dementia, a person may not be him which you cannot quite figure out early on in your able to handle a complicated computer program but can meeting. As your consultation with Murray continues, it still manage his or her everyday affairs. In the early and becomes increasingly clear that he cannot complete his middle stages, the impact on capacity remains situational thoughts, forgets what he has just asked, cannot recall the and needs to be determined on a case-by-case basis. The information you have just presented to him and spends unpredictable rate of decline as the illness progresses much of the time looking behind him, staring at the lights makes it virtually impossible to determine when some- above, asks about who else is in the office currently, and one who presents with early signs of dementia will no suggests the pictures on your wall have a special mean- longer be able to handle his or her own affairs. ing. It is also important to be aware that older people have multiple medical illnesses that can cause, contribute to, II. Defining the Terms: Dementia, Mental Illness, and and/or complicate the clinical picture of dementia.3 Cognitive Decline In adults, particularly in the geriatric population, there B. Mental Illness are several conditions in the neurologic, psychiatric, and The most common psychiatric conditions for the elderly neuropsychiatric spectrum that can interfere with cog- population are the depressive and anxiety disorders nitive skills, impede functioning and cause symptoms which range from the “blues” to depression with psy- that concern family members and may require attorney chotic features and from mild discomfort to full-blown involvement. Among the most common are the demen- panic attacks. As people age, the number of stressors tias, depression/mood disorders and dementia “mim- grows over time with a concomitant loss of close family ics.” Each of these groups share basic elements with and friends. Together with any medical issues, there is additional symptoms that track to specific disorders. an increase in risk for new onset or recurrent depressive disorders, worsening of chronic anxiety, intensification A. Dementia of longstanding family dysfunction, ongoing personality Dementia is a grouping of neurological or neuropsychi- disorders as well as long-term sequelae of chronic psy- atric conditions characterized by acquired, progressive, chotic illnesses.
NYSBA Journal | January 2017 | 23 The depressive disorders are a group of psychiatric cal (e.g., grief), or medical (e.g., heart failure). This may conditions characterized by mood changes, dysphoria mean that in stressful situations, such as during a medi- (depressed mood which when severe can morph into cal crisis, persons suffering from MIC may not be able to despair, hopelessness and helplessness) accompanied by multitask or even fully grasp a complex situation. Hence, loss of interest in usual activities, abnormal sleep or eat- planning may be of particular benefit to this subset of the ing patterns, feelings of low self-worth, and sometimes population, some of whom will remain with MIC, while psychotic symptoms or even suicidal ideation.4 In late- a smaller proportion will progress to dementia of the onset depression, the loss of attention to dress, weight Alzheimer’s type. loss, delusional thinking and suicidal ideation can even In the medical units, a frequently encountered demen- mimic terminal illness and may require hospital admis- tia “mimic” is delirium, which is characterized as a tem- sion. Decreased motivation and interest, poor concentra- porary global (affecting most components of our brains) tion, low energy and demoralization can lead to pseudo- brain dysfunction of sudden onset.5 The symptoms of dementia, where individuals can appear to be cognitively delirium can mimic dementia with the loss of attention impaired, even demented. and focus, confusion, day-night reversal or psychiatric As with dementia, there are somewhat different symp- illness with psychotic ideation, agitation, apathy or mood toms to each subtype of depressive disorder, but overall, changes. It can have many triggers, and treating the they are all marked by very low mood accompanied by underlying cause is the primary approach. However, the other symptoms affecting how people feel about them- recovery can be prolonged and for those already suffer- selves and the world and potentially impacts their ability ing from dementia, so-called “double delirium,” there is to function. However, unlike dementia, depressive disor- a high risk of worsening residual dysfunction. ders are most often acute (versus chronic) or episodic and Finally, there are medications and medical conditions tend to respond to treatment with attenuation, if not full that can affect any area of cognitive function. For exam- remission, of symptoms. During acute depressive illness ple, many opioid-containing medications can impair there may be impairment of judgment and disordered focus, cognitive clarity and reaction time, which under- thinking so that capacity is affected (i.e., a patient who lies the caution about driving or using heavy machinery. was so depressed she refused to give consent to surgery Severe impairments can occur in this setting but are gen- believing that God had given her a way to die), but once erally mild to moderate, temporary and reversible, with treated the symptoms remit and the person returns to, or little or no permanent changes. close to, his or her pre-depressive baseline. In situations where there is uncertainty or even dis- In addition, there are other conditions such as chronic comfort with the clients’ clinical state, and an uncertainty mental illness, for example, schizophrenia, bipolar disor- about the correct diagnosis or prognosis and its impact der or schizoaffective disorder, that may present with a on cognitive function, decision making, and judgment, a lifelong impairment of judgment and cognitive symptoms medical expert consultation can be very useful. accompanied by mood changes that worsen with age. III. How Do These Diagnoses/Symptoms Affect C. General Cognitive Decline or “Dementia Mimics” Capacity and/or Legal Representation? In addition to dementia and depression there are several other conditions that impact cognitive skills, can impair A. The Privately Retained Attorney functioning, and may be part of the client’s presentation. “Capacity” is a medical determination that is broadly The most common of these is normal aging itself, used to describe a person’s ability to act in a legal which affects the way an individual processes informa- environment, as well as the level to which he or she is tion, his or her reaction times and the way he or she stores accountable or responsible for his or her actions. The and retrieves short-term memory. A common manifesta- incidence of cases in which capacity is an issue has tion is the “forgetting” of names only to recall them some- grown substantially in the past few years because of the time later. People often overestimate the negative impact aging demographic and the increasing number of cases of these changes. The individual can become depressed involving serious mental illness, drug and/or alcohol or anxious, which if severe enough can impede the learn- dependence/abuse, or other related mental health con- ing of new information. cerns. In civil matters, capacity issues arise as to con- A related condition is known as minimally impaired tracts (e.g., is the party capable of entering into, or suing cognition (MIC), which falls between dementia and pursuant to a contract?), executing advance directives, normal aging. Individuals suffering from MIC can do such as a Health Care Proxy, Living Will, or Power of everyday things but have impairment of higher execu- Attorney, in guardianship proceedings under Article 81 tive function affecting the management of their financial of New York’s Mental Hygiene Law, and as to a patient’s portfolios or even simple bank accounts. Even mild forms right to consent to and/or refuse medical treatment. As of MIC are amplified with additional stressors which such, different statutes will define capacity as it is appli- may be physiological (e.g., lack of sleep), psychologi- cable to that particular area of law.
24 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS
Attorneys must make capacity judgments in at least include delusions or beliefs that are unlikely to be true two aspects of representation. First, the attorney must and/or poor hygiene.10 determine whether the potential client even has the An attorney may be contacted by either the indi- capacity to retain an attorney. A retainer agreement falls vidual him or herself, a family member, or an otherwise within the scope of contracts and is governed by con- concerned individual. In the first case study, the family tract principles. An individual lacks the mental capacity member contacts the attorney. As the attorney, what are to retain counsel if he or she lacks sufficient mind and your prognostic issues and options? One issue is whether reason for a full and clear understanding of the nature Maria has the capacity to revoke her legal documents, and consequences of making the contract at the time the and if so, whether an Article 81 guardianship is appro- contract is made.6 Then, the attorney must determine priate to take control of her health care and financial
In addition to dementia and depression there are several other conditions that impact cognitive skills, can impair functioning, and may be part of the client’s presentation. whether the potential client has the capacity to “carry out decision-making. Looking at this first case study from the specific legal transaction(s) under consideration.”7 the perspective of an attorney representing Maria her- Model Rule 1.14 of the ABA Model Rules of Profes- self, a potentially incapacitated individual, whose family sional Conduct concerns clients with “diminished capac- members are involved as potential guardians, powers ity” and suggests a duty to make informal capacity judg- of attorney, and/or potential beneficiaries, the attorney ments in certain cases.8 Rule 1.14 states: is advised to consider the potential conflicts of interest, (a) When a client’s capacity to make adequately con- issues of confidentiality and goals of the representation. sidered decisions in connection with a representation In the second case study, the potentially impaired is diminished, whether because of minority, mental individual consults with an attorney on his own behalf. impairment or for some other reason, the lawyer shall, As the attorney, you must consider and evaluate your as far as reasonably possible, maintain a normal client- ethical and legal obligations to him. Important questions lawyer relationship with the client. to consider are whether he may be exhibiting signs of (b) When the lawyer reasonably believes that the cli- dementia, mental illness, or even side effects of a medi- ent has diminished capacity, is at risk of substantial cal condition, and if so, whether any of these potential physical, financial or other harm unless action is taken ailments affect his capacity to retain and direct coun- and cannot adequately act in the client’s own interest, sel. Should the attorney make a referral to a geriatric the lawyer may take reasonably necessary protective psychiatrist? Should the attorney consider a voluntary/ action, including consulting with individuals or enti- involuntary psychiatric hospitalization? Or should the ties that have the ability to take action to protect the attorney draft the documents requested and permit him client and, in appropriate cases, seeking the appoint- to execute them, as it seems he can focus some of the ment of a guardian ad litem, conservator or guardian. time? Either way, the attorney has challenging legal and In determining the extent of the client’s diminished ethical decisions to make. capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning lead- B. Mental Hygiene Legal Service ing to a decision, variability of state of mind and ability Another legal actor to consider is the Mental Hygiene to appreciate consequences of a decision; the substantive Legal Service (MHLS). MHLS is a legal service organized fairness of a decision; the consistency of a decision with under Article 47 of the Mental Hygiene Law to provide the known long-term commitments and values of the cli- legal assistance to patients or residents of certain facili- ent; and the irreversibility of the decision.9 In appropri- ties within New York State.11 MHLS derives its statutory ate circumstances, the lawyer may seek guidance from a authority to represent clients suffering from mental ill- diagnostician. ness and/or diminished capacity as a result of mental Possible cognitive signs of incapacity may include: illness and/or dementia through Article 47, Mental short-term memory loss; communication problems; com- Hygiene Law Article 8112 and the seminal case of Rivers prehension problems; lack of mental flexibility; calcula- v. Katz.13 In a guardianship matter pursuant to Article 81, tion problems; and/or disorientation. Possible emotional the court can appoint MHLS as counsel for the alleged signs of incapacity may include significant emotional incapacitated person (AIP), whether or not the individual stress; emotional lability and/or emotional inappro- resides in a facility, or as court evaluator.14 The court is priateness. Possible behavioral signs of incapacity may likely to consider the appointment of MHLS where the
NYSBA Journal | January 2017 | 25 AIP has minimal or no assets. If the AIP is institutional- In the context of representing an AIP in a guardian- ized in a mental hygiene facility, then MHLS is entitled to ship proceeding, the MHLS attorney would play a similar notice of the proceeding, whether or not MHLS is actually role in meeting with the client and advising him or her appointed.15 about the procedures for the appointment of a guardian, MHLS, through its practice, recognizes that there are informing the client of his or her rights to have a judicial varying degrees of capacity and at times capacity can be hearing and to be represented by counsel, among others. improved and/or restored. The MHLS attorney must The MHLS attorney, just like any other court-appointed examine what is causing the diminished capacity, what attorney for the AIP, would want to determine the cli- is the extent of the diminished capacity, how the dimin- ent’s wishes regarding the appointment of a guardian, his ished capacity affects the client’s ability to understand or her living arrangements, and daily life. The attorney the options available, the ability to make reasoned deci- would also want to evaluate the client’s ability to func- sions based on a risk/benefit analysis, and the ability to tion in terms of his or her personal needs and ability to manage one’s own affairs. The actual structure of the pro- manage finances. posed “care plan” for each individual will be guided by In representing the client, whether in a mental hygiene the diagnosis and prognosis – for example, if a person has facility or in a guardianship proceeding, the attorney is a dual diagnosis of mental illness and substance abuse, driven by what would be the least restrictive form of which is affecting his or her decision-making, enrollment intervention for the client.18 Any intervention should be in a day program that provides drug treatment and also tailored to the individual based upon whether that indi- psychiatric medications may allow that individual to live vidual suffers from a mental illness, dementia, or another safely in the community. On the other hand, someone medical condition and his or her prognosis. with dementia resulting in cognitive decline might need planning that incorporates the prognosis of dementia. IV. Sample Legal Options for Clients/Family That individual may need more help as time continues Members with Mental Illness, Dementia or Other Cognitive Decline Family members, caregivers and the attorneys involved In representing the client, in the care of a mentally impaired individual must be the attorney is driven by familiar with the various “legal tools” designed to protect and support that individual. The legal system, working what would be the least in tandem with the medical and/or mental health care restrictive form of intervention system, can often offer assistance in the form of advanced directives, guardianship, and inpatient hospitalization, for the client. among others. Advance directives are legal documents containing an and the plan can be fashioned based on what we know individual’s prior expressed wishes regarding financial occurs to someone suffering from that decline. affairs or medical treatment that must be executed while In the case studies, MHLS would potentially become the individual has the requisite mental capacity.19 A involved if either Maria or Murray were hospitalized durable Power of Attorney allows the Principal to appoint or if a guardianship proceeding was initiated for either an Agent (or Attorney-in-Fact) to make certain financial individual. If Maria were hospitalized for treatment of decisions when the Principal becomes unable to do so.20 her symptoms such as paranoia, delusions, irritability, Under a Health Care Proxy, the appointed Agent has the and poor self-care, or if Murray were hospitalized for power to make certain medical decisions when the Princi- treatment of his bizarre behavior, delusions, possible pal becomes unable to do so.21 A Living Will can be used hallucinations, and lack of focus, as a patient in a mental to provide medical treatment instructions to a doctor if health facility, they would be entitled to legal counsel the patient loses the ability to communicate.22 Advance through MHLS related to their care and treatment.16 If directives are relatively simple, inexpensive to draft and Maria’s daughter, for example, initiated a guardianship execute, and can be revoked when the Principal has the proceeding against her, MHLS could potentially become capacity to do so. involved as court-appointed counsel for Maria or as the In the event that an individual has not executed any court evaluator. advance directives, has revoked any advance directives, In the context of representing a patient in a mental or no longer has the capacity to execute advance direc- health facility, the role of the MHLS attorney is to first tives, family members and caregivers managing the meet with the client and advise him or her of the pro- medical, social and financial issues of their loved one cedures for admission and retention of patients, and to may come up against significant legal roadblocks. Guard- inform the patient of his or her rights, including the right ianship is a legal proceeding by which a court appoints to have a judicial hearing, to be represented by counsel and oversees a legal decision maker, or “guardian,” for and to seek an independent medical opinion.17 another adult, who due to incapacity or other disability, is
26 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS unable to manage his or her own affairs.23 The court can appoint a Personal Needs Guardian to make decisions and other causes of cognitive decline as it can impact the such as consenting to medical care, choosing a place of lawyer’s work with the clients, drive the legal goals, dic- abode, and determining whether the individual should tate the plan and its execution and determine any addition- travel and/or have a driver’s license, among others. The al components necessary to be decided on a case-by-case court can grant the Guardian the power to access and dis- basis. In almost all cases involving cognitive dysfunction close medical and confidential records that would other- the most critical legal issues center around capacity. n wise be protected by state and federal privacy laws.24 The court can also appoint a Property Management Guardian 1. Eitan Z. Kimchi & Constantine G. Lyketsos, Dementia and Mild Neurocog- nitive Disorders, in The American Psychiatric Publishing Textbook of Geriatric to manage the individual’s financial affairs, such as pay- Psychiatry (177–242) (David C. Steffens et al. eds., 5th ed. 2015). ing bills, applying for New York State and/or U.S. gov- 2. Id. at 177–242. ernment benefits, and handling Medicare or Medicaid 3. For example, poor glucose control in diabetes affects brain function and applications and claims, among others. can exacerbate the lack of focus and distractibility of dementia. It is important to note that, in a guardianship pro- 4. Hindi T. Mermelstein & Lynna Lesko, Depression in patients with cancer, ceeding, counsel for the AIP, the court evaluator, or a 1 Psycho-Oncology 199, 199–215 (1992). cross-petitioner, for example, can request that the court 5. Downing, L., Caprio, T., Lyness, J., Geriatric psychiatry review: Differen- tial diagnosis and treatment of the 3 D’s – delirium, dementia and depression, Cur- appoint a medical physician or psychiatrist to perform rent Psychiatry Review 2013 (6) 365–369. an independent medical examination.25 If the application 6. See Restatement (Second) of Contracts § 15 (Am. Law. Inst. 1981); 22 N.Y. for guardianship is based upon a diagnosis of dementia, Jur. 2d Contracts § 26 (2016). for example, such a medical exam would confirm the 7. Assessment of Older Adults with Diminished Capacity: A Handbook diagnosis and speak to the very issue of capacity and func- for Lawyers, 13, Am. Bar Ass’n, www.americanbar.org/content/dam/aba/ tional limitations. The role of the appointed expert would administrative/law_aging/2012_aging_capacity_hbk_ch4.authcheckdam.pdf. include performing the evaluation,26 interviewing family 8. Model Rules of Prof’l Conduct R. 1.14 (Am. Bar Ass’n 2006). members and/or caregivers, reviewing medical records 9. Model Rules of Prof’l Conduct R. 18 (Am. Bar Ass’n 2006); see Model Rules of Prof’l Conduct R. 1.14 cmt. 6 (Am. Bar Ass’n 2006). and other documentation, preparing a report for the Court and potentially testifying at the guardianship hearing. 10. Model Rules of Prof’l Conduct R. 14-16 (Am. Bar Ass’n 2006). Guardianships are commonly used for the elderly, 11. N.Y. Mental Hyg. Law Article 47 (MHL). mentally ill and developmentally disabled individuals, 12. MHL Article 81. but are often regarded as a last-resort option, since they 13. Rivers v. Katz, 67 N.Y.2d 485 (1986). can be expensive, time consuming, and deprive an adult 14. See MHL § 81.09 (McKinney 2011). of significant personal rights. 15. MHL § 81.07(g) (McKinney 2009). If the individual requires immediate psychiatric inter- 16. MHL § 47.03 (McKinney 2007). vention, hospitals offer a safe setting for such treatment 17. Id. including observation, diagnosis, therapy and medica- 18. See, e.g., MHL § 81.03(d) (McKinney 2004). tion management.27 In New York, Article 9 of the Men- 19. For the purposes of signing an advanced directive, a person is deemed tal Hygiene Law sets forth the legal requirements for to have capacity unless proven otherwise. N.Y. Pub. Health Law § 2981(1) (McKinney 2012). voluntary, involuntary and emergency admission to a 20. Without a durable power of attorney, family members or caregivers may hospital, as well as the retention of patients pursuant to have to go to court to get the authority to handle the individual’s affairs 28 a court order. However, families and caregivers should should he or she lose capacity. not have to wait until the individual decompensates and 21. As with a guardian, in many states there are certain aspects of a person’s becomes increasingly symptomatic and impaired before care that may never be delegated to an agent such as the involuntary admin- he or she can be evaluated and treated in a hospital. In istration of psychiatric medication. New York, family and other concerned individuals can 22. These treatments may include resuscitation, artificial nutrition and hydration, and mechanical ventilation, among others. make an application to the court for a “Mental Health 23. MHL § 81.02(a). In New York, incapacity refers to functional limitations Warrant,” an order for immediate evaluation in an emer- rather than a mental or physical condition. MHL § 81.02(c) (McKinney 1992). 29 gency room not to exceed 72 hours. 24. This specific power is often crucial when family members and/or care- These legal tools are designed to assist family mem- givers need information about their loved one’s medical and/or mental bers, caregivers and the attorneys involved in the care of health care. a mentally impaired individual while also protecting and 25. MHL § 81.09(c) (McKinney 2011). supporting that individual. 26. Such an evaluation might include but is not limited to, cognitive tests, mental status examinations, MRI/CAT scans, laboratory tests, review of medications, and a review of medical and social history. V. Conclusion 27. National Alliance on Mental Illness, http://www.nami.org/Find-Support. Clients, family members, or loved ones come to the law- 28. See MHL §§ 9.13, 9.27, 9.37, 9.39 (McKinney 2016). yer’s office with legal queries, but often also bring with 29. MHL § 9.43. At any time during the 72-hour period, the patient may, if them their medical, neurological and psychiatric issues. appropriate, be admitted as a voluntary or involuntary patient. Id (McKinney Lawyers have a need to recognize dementia, depression 1989).
NYSBA Journal | January 2017 | 27 Proving Diminished Mental Capacity Post-Death
By Shira Bloom, Kyle Durante, Christina Lamm, Brian McCarthy, Marissa Ottavio, Rochelle Sorensen, Lori Sullivan and Ashley Valla
Shira Bloom is a Juris Doctor Candidate at Touro College’s Jacob D. Fuchsberg Law Center and earned a B.A. in Political Science from The Lander Col- lege for Women, a Division of Touro College. Kyle Durante is a Juris Doctor Candidate at Touro College’s Jacob D. Fuchsberg Law Center; earned a B.A. in Political Science from the University at Buffalo, the State University of New York; earned an A.S. in Criminal Justice from Erie Community College; and worked as a Law Clerk at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrera, & Wolf, LLP. Christina Lamm is a Juris Doctor Candidate at Touro College’s Jacob D. Fuchsberg Law Center; earned a B.A., in Psychology from Pace University; and was a Judicial Extern at Nassau County Surrogate’s Court. Brian McCarthy is an Associate at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrera & Wolf, LLP. Marissa Ottavio is a Juris Doctor Candidate at Touro College’s Jacob D. Fuchsberg Law Center; earned an M.S. in Early Childhood Education from Queens College; and earned a B.S. in Childhood Education from the State University of New York at Old Westbury. Rochelle Sorensen is a Juris Doctor Candidate at Touro College’s Jacob D. Fuchsberg Law Center; earned a B.A. in Criminal Justice from John Jay College of Criminal Justice, The City University of New York; and worked as a Paralegal at the Law Office of Shannon Macleod. Lori Sullivan is an Associate at Seward & Kissel, LLP. Ashley Valla is a Juris Doctor Candidate at Touro College’s Jacob D. Fuchsberg Law Center; earned a B.F.A. in Fine Arts from Stony Brook University and an A.A.S. in Photography from the Fashion Institute of Technology; and worked as a Law Clerk at George R. Tilschner Law Firm, P.C.
28 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS
I. Introduction culprit of memory loss and other symptoms of Alzheim- One of the most difficult tasks of a practitioner in the er’s.7 The buildup of these proteins damages the neurons estate litigation field is attempting to prove capacity or and interferes with communications between them, lead- lack thereof after the death of the decedent. Due to the ing to the death of brain cells.8 Those who suffer from low standard of capacity required to create a testamen- a Mild Cognitive Impairment (MCI) are more likely to tary instrument, courts generally hold that a testator develop Alzheimer’s because their brains are already sus- had capacity at the instrument’s creation absent extreme ceptible to changes that affect thinking abilities.9 A small or extenuating circumstances.1 Attempting to prove or percentage of people with genetic abnormalities may be disprove capacity post-death poses special problems for prone to developing Alzheimer’s at an age as young as litigators in the trusts and estates and elder law practice 30.10 Further, age and family history may also indicate areas. This article will explore those special concerns in a person’s risk factor for developing Alzheimer’s.11 It is proving capacity post-death. Section II of this article will predicted that in 2016, between research, medical care, give a brief overview of the common causes of dimin- and caregiver’s costs, Alzheimer’s will cost the nation ished mental capacity. Section III will delve into the ethi- $236 billion.12 Although MCI dementia can be detected cal and professional responsibility considerations when early on and it is a slow-progressing brain disease, there entering into an attorney-client relationship with a client still is no cure for it.13 who may suffer from diminished mental capacity. Section Vascular dementia, dementia with Lewy bodies, IV will set forth the capacity continuum explaining the mixed dementia, frontotemporal lobar degeneration, varying levels of capacity required for different functions. Parkinson’s disease dementia, Creutzfeldt-Jakob disease, Finally, section V will clarify the common way of proving and normal pressure hydrocephalus are all other forms of or disproving capacity for various transactions after the dementia with symptoms that can also affect a person’s death of the decedent. mental capacity.14 Impaired motor skills and judgment are a hallmark of all of these other types of dementia. II. Common Causes of Diminished Mental Capacity These cognitive symptoms are all affected by changes and There are many different mental disorders that may cause damage to vital parts of the brain that control behaviors, a person’s diminished mental capacity. It is important to judgment-making, communication, and memory.15 know how these disorders may affect a person’s decision- making and communication skills. These disorders range B. Aphasia from several different kinds of dementia to depression. Some people may suffer from Aphasia, which can be con- Professionals who are aware of the signs and symp- fused with dementia because Aphasia can be a symptom toms of such disorders can detect whether the client’s of dementia.16 Aphasia is “a general term used to refer to decision-making and communication skills have been deficits in language functions.”17 A diagnosis of Aphasia compromised, and further, how to deal with such a situa- does not necessarily mean that the person’s decision- tion if the client can no longer exercise his or her right of making capacity has been compromised.18 For example, autonomy in the estate planning scheme. Primary Progressive Aphasia (PPA) is a cognitive impair- ment that affects a person’s language function.19 People A. Dementia with PPA may appear to have a difficult time with com- In general, dementia is an overall term to describe a “clin- mon words while speaking or writing and often it is ical syndrome characterized by generalized cognitive assumed that when elderly clients present this kind of impairment and a normal level of consciousness.”2 The behavior they are suffering from dementia.20 Although most common form of dementia is Alzheimer’s disease, the parts of the brain responsible for language begin to which affects 60 to 80 percent of all cases of dementia.3 deteriorate, usually a person’s memory, reasoning, and Each year more and more studies and reports project that visual perception are not affected if they have Aphasia.21 the number of people affected by Alzheimer’s disease Therefore, people with PPA usually do not suffer from will only continue to increase in the upcoming years.4 diminished capacity, but from difficulty in communicat- The Alzheimer’s Association attributes the increase to ing with others. the number of baby boomers in the country and the Professionals must also remember that capacity is “growth of the oldest-old population.”5 Alzheimer’s can not a fixed condition.22 A client’s capacity can fluctu- cause a person to forget recent conversations, names, and ate throughout the day; it can be affected by the time events. It can also impair one’s ability to communicate, of day, mood, medication dosage, and other external make judgments, and cause severe behavioral changes.6 surrounding circumstances.23 For instance, seniors are All of these symptoms can prospectively and retrospec- most familiar and comfortable within their own homes tively affect a person’s estate plan if he or she suffers and may become irrational, agitated, and confused in a from Alzheimer’s disease. The disease is caused by the professional’s office.24 The National Academy of Elder accumulation of certain proteins inside and outside of the Law Attorneys (NAELA) recommends that the elder law neurons in a person’s brain, which are believed to be the attorney “[a]dapts the interview environment, timing
NYSBA Journal | January 2017 | 29 of meetings, communications and decision-making pro- from representation when it can be done “without mate- cesses to maximize the client’s capacity.”25 rial adverse effects” on the client.35 When withdrawal is permitted or even required, the lawyer is obligated to C. Depression take steps to avoid “foreseeable prejudice to the client.”36 Another disorder that affects mental capacity is depres- This includes delivering all the papers and files the client sion.26 It is also a disorder that does not discriminate is entitled to and refunding any portion of the retainer against any age group.27 Across the country, as many as that was paid in advance and not exhausted.37 16 million Americans suffer from some sort of depres- It is possible to represent a client with diminished sion, and 10 percent of those cases are people aged 65 or mental capacity provided that the client still satisfies the older.28 Clients who suffer from depression may exhibit capacity requirement set by the New York Estates, Pow- concerning symptoms such as loss of interest, diminished ers and Trusts Law, which is a lower capacity standard energy, low mood, slow thought and motor skill process- than the requisite capacity to contract.38 There are also ing, agitation, and diminished concentration.29 These ethical considerations that arise during the course of symptoms can also be easily confused for dementia; how- litigation. When a lawyer reasonably believes a client ever, depression can be treated with medication, which with diminished capacity is at risk of substantial physi- usually becomes effective within one to two months of cal, financial or other harm and is unable to act in their use.30 own interest, the lawyer may take “reasonably necessary Other cognitive impairments can be caused by chronic protective action, and in the appropriate cases, seeking drug and alcohol abuse or temporary and permanent the appointment of a guardian ad litem, conservator, or losses of cognitive functions, such as coma, minimally guardian.”39 Information relating to the representation conscious states, and terminal illnesses. of a client with diminished capacity is still subject to the Professionals must be educated and equipped to be confidentiality standards as provided by Rule 1.6.40 able to determine whether the client suffers from any of As the legal profession requires self-regulation, if a the aforementioned conditions that may result in a lack of lawyer learns of conduct of another lawyer that violates mental capacity. It is also important for the professional to the Rules of Professional Conduct, Rule 8.3 states that know what conditions affect what parts of the brain that lawyer shall report such knowledge.41 Thus, if a lawyer control decision-making, judgment-making, and other learns of another lawyer’s disregard for these rules, espe- cognitive functions, and whether that condition can be cially when it comes to clients with diminished capacity, cured. By learning how to identify a client’s condition it is important that this neglect is reported to prevent and knowing how to manage the situation, the profes- harm to the client. sional can prepare a proper estate plan for the client, whether the client has the requisite capacity for certain IV. New York’s Standards of Capacity functions. The level of mental capacity fluctuates depending upon the advanced directive that is being executed. The lev- III. Ethical Considerations When Counseling Clients els of legal capacity are part of a spectrum developed Who Suffer from Diminished Mental Capacity through different state laws.42 Testamentary capacity is When determining the capacity of potential clients, on the lower end of the spectrum while the capacity to there are ethical considerations that must be taken into execute a power of attorney and contract is on the higher account by the attorney before agreeing to representa- end of the spectrum.43 The purpose of the legal concept tion. The New York Rules of Professional Conduct state of the different levels of requisite capacity is to determine that when dealing with clients with diminished capacity, when a state legitimately may take action to limit an indi- whether it be because of minority, mental impairment, vidual’s rights to make decisions about their own person or another reason, the lawyer shall maintain a conven- or property, thereby exercising their parens patriae pow- tional attorney-client relationship with the client, as far ers in relation to a person’s due process constitutional as reasonably possible.31 Attorneys are also required to rights.44 act with “reasonable diligence and promptness in repre- Testamentary capacity is on the lower end of the senting all clients, regardless of their capacity,” and shall capacity spectrum. At common law, the court in Green- not neglect any legal matter they are entrusted with by wood v. Greenwood45 set forth four elements to determine a client.32 However, this duty arises when a confidential testamentary capacity, commonly referred to as the attorney-client relationship is formed and may occur Greenwood-Baker test.46 The four elements are: (1) Did the when: an attorney agrees to representation; an attorney is testator understand the nature of the act he or she was appointed to represent; or the client reasonably assumes performing; (2) Did the testator know the nature and the attorney is representing his or her interest.33 extent of his or her property; (3) Did the testator know Issues often arise when a lawyer wishes to decline the identity of those who were the “natural objects of his or terminate representation of a client with diminished or her bounty”; and (4) Did the testator understand the capacity.34 The rules provide that a lawyer may withdraw will’s disposition of his or her property.47 The Greenwood-
30 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS
Baker test has been used widely across the country when the decendent’s capacity, it is critical to obtain the neces- determining testamentary capacity. sary waivers and/or authority from the court early in In New York, pursuant to EPTL 3-1.1, “every per- the proceeding in order to have sufficient time to compel son eighteen years of age or over, of sound mind and the production of medical records for the decedent in a memory” may dispose of real and personal property and legally admissible form.59 exercise a power to appoint such property.48 The N.Y. The capacity necessary to execute a power of attorney Court of Appeals reasoned in In re Estate of Kumstar49 is higher than testamentary capacity on the mental capac- that the court must consider the Greenwood-Baker test in ity spectrum.60 Many jurisdictions require a different conjunction with the EPTL.50 The Court of Appeals laid level of capacity to execute a will versus a power of attor- out a modified version of the Greenwood-Baker test.51 The ney, which requires the capacity to contract.61 In order Court stated: to have capacity to contract, the person must be able to [I]n a will contest . . . “the proponent has the burden understand the nature and consequences of the trans- of proving that the testator possessed testamentary action and make a rational judgment concerning those capacity and the court must look to the following fac- consequences.62 New York General Obligations Law § tors: (1) whether she understood the nature and conse- 5-1501B(1)(b) defines a power of attorney as a document quences of executing a will; (2) whether she knew the “by which a principal with capacity designates an agent nature and extent of the property she was disposing to act on his or her behalf.”63 The principal is deemed of; and (3) whether she knew those who would be to lack the mental capacity to execute a valid power of considered the natural objects of her bounty and her attorney if he or she is unable to comprehend the nature 52 relations with them.” and consequences of the act, any provision contracted Oftentimes, litigation involving testamentary capac- within the act, or the authority of any person to act as an ity has focused on factors such as the decedent’s age, agent under a power of attorney.64 The court will look physical condition, and progressive mental illness, such to the principal’s state of mind at the time the document factors, however, are not necessarily inconsistent with was signed.65 testamentary capacity, and may not necessarily be the Similar to the requisite capacity to execute a power of appropriate inquiry. In In re Estate of Hedges,53 the Second attorney, a higher level of capacity is required to execute Department reasoned that the appropriate inquiry is a health care proxy.66 The New York law provides that whether the decedent was lucid and rational at the time “every adult shall be presumed competent to appoint a the will was made.54 Where there is conflicting evidence health care agent unless such person has been adjudged creating an issue of fact drawing possible inferences the incompetent or otherwise adjudged not competent issue of capacity is one for the jury, rather than for sum- to appoint a health care agent, or unless a committee mary judgment.55 or guardian of the person had been appointed for the As a practical matter, the objectant will often be at a agent.”67 Furthermore, pursuant to Pub. Health Law § strategic disadvantage when seeking to defeat a motion 2980(3), capacity to make health care decisions means for summary judgment regarding the decedent’s alleged the ability to understand and appreciate the nature and diminished capacity. This is the case as the proponent of consequences of health care decisions, including the a summary judgment motion must make a prima facie benefits and risks of and alternatives to any proposed showing of entitlement to judgment as a matter of law, health care, and to reach an informed decision. This tendering sufficient evidence to demonstrate the absence definition being very similar to that of General Obliga- of any material issues of fact.56 Once this showing has tion Law § 5-1501(c) would seemingly indicate that con- been made, the burden shifts to the party opposing the tractual capacity is the requisite to execute a health care motion for summary judgment to produce evidentiary proxy. However, in practice, a very low level of capacity proof in admissible form sufficient to establish the exis- is generally required. tence of material issues of fact which require a trial of the Although there is some uncertainty, the standard of action.57 In order to establish a material issue of fact with contractual capacity may be necessary since both the regard to diminished mental capacity, oftentimes the best decision-making granted by a health care proxy and evidence is medical records of the decedent. However, durable power of attorney lasts even after the principal an objectant may not be in possession of these medical has lost capacity.68 This supports the theoretical spec- records or the medical records of the objectant may lack trum of mental capacity because of the impact each of the proper foundation to enable their introduction in the advanced documents has on the principal or testa- a legally admissible form.58 When seeking to defeat a tor. A will only becomes effective upon the testator’s motion for summary judgment, it will quickly become death and, therefore, has no effect on the testator’s life apparent that there are several significant obstacles to or financial well-being,69 whereas a health care proxy obtain the relevant medical records from medical pro- and power of attorney are effective when signed, and fessionals and facilities. Accordingly, when seeking to set forth an agency-relationship between the principal establish there is a material question of fact related to and agent.70
NYSBA Journal | January 2017 | 31 V. Proving a Client’s Capacity Post-Death burden shifted back to the proponent.82 The proponent of A. Proving Capacity in Testamentary Transactions the will was entitled to the initial presumption of capacity Under EPTL 3-1.1, every person over the age of 18 and and due execution based upon the affidavits of the attest- “of sound mind and memory” may dispose of his or her ing witnesses, with the burden on the contestant to prove property by will.71 Nevertheless, the New York statute, lack of testamentary capacity and undue execution.83 similar to those statutes in other jurisdictions, fails to However, the court held when the contestant can prove adequately set forth the meaning of “sound mind and that the testatrix had a confidential relationship with a memory,” rather the determination has been developed person who may have exhibited undue influence over the by case law as applied to the particular circumstances decedent and suspicious circumstances were present, the of each case.72 Generally, the capacity needed for execut- burden shifts back to the proponent to disprove undue ing a will requires the lowest form of capacity while the influence.84 A confidential relationship where an undue capacity needed for entering into a contract requires a influence is asserted generally exists “when one person more exacting level.73 In a contested probate proceeding, is dependent on and subject to the control of the other.”85 the contesters are entitled to a jury trial; thus, unless the Some examples of confidential relationships are: a testa- contesters wave a jury trial, the issue of capacity will be tor and the scrivener;86 the testator and an attorney or submitted to a jury when the evidence surrounding the doctor;87 the testator and a nurse;88 the testator and a psy- testator’s capacity is conflicting or there is a possibility of chologist;89 the testator and a nursing home director;90 the drawing different conclusions.74 testator and a member of the clergy;91 the testator and an
Generally, the Surrogate’s Court’s determination of whether the testator had capacity is subject to great deference and will not be disturbed absent the great weight of the evidence to the contrary.
Customarily, the proponent of the will has the burden accountant or financial advisor;92 and the testator and an to establish by a preponderance of the evidence that the attorney-in-fact.93 Examples of suspicious circumstances testator was “of sound mind and memory” when the inlcude: “a fiduciary relationship; a change of testamen- will was executed.75 However, there is a presumption of tary intention; advanced age, and mental and physical testamentary capacity where there are affidavits of the condition of the decedent; the fact that the proponent was attesting witnesses, so long as the will was executed with the drafter and principal beneficiary under the will and the proper formalities under EPTL 3-2.1.76 The existence took an active part in procuring its execution; and that the of the attesting witness’ affidavit is enough to shift the testator acted without independent advice.”94 burden of proof on testamentary capacity to the party Based upon the test set out in Kumstar, the relevant challenging the will.77 The contestant is then required to inquiry is whether the testator had capacity at the time show by a preponderance of the evidence that the testator the will was executed.95 Due to the concept of freedom lacked capacity by more than mere conclusory allega- of disposition and that the testators intent should be tions.78 Moreover, when attempting to prove capacity, given deference in most jurisdictions, courts generally there only needs to be a showing that the decedent had lean toward finding capacity unless the contestant has a “general, rather than a precise, knowledge of [his/her] demonstrated extenuating circumstances.96 Although assets.”79 New York’s statutory standard for testamentary capac- Notwithstanding these general burdens and the cir- ity, which requires only “sound mind and memory” cumstances resulting in the shifting thereof, there are may seem to suggest a simplistic analysis, the Surrogate limited situations in which the burdens may be modified. is charged with balancing all factors and determining For example, if the contestant alleges that undue influ- whether the testator possessed the “task-specific func- ence was exhibited over the testator in the creation and/ tional capacity” at execution.97 As the court in In re Hor- or execution of his or her will, the burden on undue influ- ton’s Will98 stated, ence may shift back and forth between the proponent and Each case depends on its own factual situation. But in 80 the objectant. Generally, the objectant has the burden to general, a testator must have sufficient intelligence and prove undue influence. However, the burden may shift capacity to understand the nature and consequences of where there is a confidential relationship. The court in In his testamentary act, to know the nature and extent of re Hayes’ Estate81 held that where the testatrix drafted her his property, and those who may have just or natural will thereby leaving most of her estate to the scrivener, claims upon his bounty in its disposition.99 a presumption of undue influence arose based upon the For example, even documentary evidence support- confidential relationship with the scrivener and, thus, the ing a finding that the testator suffered from Alzheimer’s
32 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS is not sufficient alone to prove that a person lacked With respect to the second element, protected persons testamentary capacity because testamentary capacity is who can invoke the protection of the statute, fall into limited only to the moment in time when the testator three categories: “(1) the executor or administrator of executed his or her will.100 It need only be shown that he the decedent’s estate or the guardian of the mentally ill or she had a lucid interval at the time of execution.101 The person; (2) a ‘survivor’ of the decedent; and (3) a per- court in In re Chiurazzi102 held that despite the fact that son deriving his or her title or interest from, through, or the decedent suffered from “periods of confusion,” the under the decedent or mentally ill.”116 There is a plethora proponent of the will adequately satisfied the capacity of case law on the application of the statute regarding the threshold by establishing that the decedent was aware of executor or the administrator of the decedent’s estate. the natural objects of her bounty and had a general idea The executor or the administrator may invoke the protec- of her property at the time of the execution of her will.103 tion of the statute no matter if he or she is defending a Similarly, the court in In re Estate of Williams104 found claim against the estate or bringing a claim on behalf of the testator to be competent to execute a will despite the the estate.117 presence of medical records that showed that the testator Finally, once it is known who is disqualified and who had been diagnosed with permanent dementia and that may invoke the protection of the statute, you must deter- his doctor indicated he did not always know the date.105 mine what subject matter is prohibited by operation of The fact that the evidence showed that the testator was the statute. The Court of Appeals in the seminal case of released from a hospital on the condition that he receive Griswold v. Hart held that an interested witness may not 24-hour care was not sufficient on its own to establish testify against members of the protected class “concern- that the testator lacked capacity.106 ing a personal transaction or communication between Another potential problem for an objectant attempt- the witness and the deceased person or [mentally ill ing to prove the testator’s lack of capacity is the Dead person.]”118 In addition, the application of the rule also Man’s Statute, codified in CPLR 4519.107 The Dead Man’s prohibits the witness from giving “negative” testimony Statute essentially renders parties and other interested in relation to the things that the decedent did, said, or his persons incompetent to testify on their own behalf as to or her failure to do things.119 While the purpose of the communications with the decedent.108 New York’s Dead Dead Man’s Statute is to prevent witnesses from giving Man Statute’s three elements require: testimony against a deceased person who cannot contro- (1) [a]ny person “interested in the event,” or a prede- vert such testimony, the statute and its application causes cessor in interest of such person, may not testify in his a perplexing problem for practitioners as it may preclude or her own behalf or that of the successor in interest the testimony of the person that is most likely to have against; (2) certain protected persons with a specified knowledge of the cognitive capabilities of the decedent relationship to the mentally ill person; and (3) concern- before his or her death. ing a transaction or communication with the decedent Generally, the Surrogate’s Court’s determination of or mentally ill person.109 whether the testator had capacity is subject to great defer- These elements are referred to as the disqualified ence and will not be disturbed absent the great weight of witness, the person that may invoke the protection of its the evidence to the contrary.120 The Fourth Department in application, and the subject matter that is prohibited by In re Will of Buckten121 reversed the Surrogate’s findings its operation.110 that the proponent failed to demonstrate “due execu- As to the “disqualified witness” element, there are tion” of the will.122 The court reasoned that, generally, three types of witnesses that are disqualified: “(1) a party an appellate court will not disturb the determination of a interested in the event; (2) a person interested in the Surrogate with respect to due execution and capacity.123 event; and (3) a person from, through or under whom However, when the great weight of the evidence shows such a party or person derived his or her interest by to the contrary, the determination should be reversed.124 assignment or otherwise.”111 All such persons who are witnesses are incompetent to either give testimony on B. Proving Capacity for Contracts, Trusts, and Inter their behalf or on behalf of a successor in interest to him Vivos Transfers or her.112 Courts have construed the “event,” as referred The burden of proof for capacity for contracts, trusts, to in CPLR 4519, as a future occurrence, in which the and inter vivos transfers differs from the burden of proof person has either a pecuniary or fee interest.113 Moreover, of proving capacity to make a will. The court will look to fall within the purview of the statute, the interest itself to the transaction itself to determine what standard of must be “present, certain, and vested . . . and not an inter- proof should apply. A will is considered to be a unilateral est uncertain, remote, or contingent.”114 To be interested transaction, but a trust is deemed to be a bilateral trans- in the event, the witness must “either gain or lose by the action that is consistent with a contract.125 Therefore, the direct legal operation and effect of the judgment, or . . capacity to create a valid trust is the same as the capacity . the record will be legal evidence for or against him in to make a valid contract.126 The Surrogate’s Court, in In some other action.”115 re Rosen,127 opined that the standard of capacity to make
NYSBA Journal | January 2017 | 33 a valid gift is the same as a trust.128 Where the transfer is a charitable organization.143 The court considered the by gift, the donee bears the burden of proving, by clear creation of the trust to be that of a contract because there and convincing evidence, that the gift was voluntary and was a present property interest, which was surrendered knowingly made by the donor, uninfluenced by fraud, in exchange for annual interest.144 The court considered duress or coercion.129 the testimony from longtime friends of the decedent; a. Inter Vivos Transfers attorneys with whom he shared office space; family; a In Kirshtein v. AmeriCU Credit Union,130 the Appellate personal physician; an expert on unitrusts; the guardian Division reviewed the Supreme Court’s determination, ad litem appointed for the decedent during his conserva- which involved a dispute regarding capacity to make torship proceeding; and a forensic psychiatrist, who all an inter vivos transfer of stock certificates.131 The court supported the position that the decedent lacked mental instructed the jury that the contestant had the burden to capacity.145 Based upon the totality of the evidence, the prove by clear and convincing evidence that, at the time court found that a showing of “clear and convincing cred- of the stock transfers, the decedent had lacked the mental ible evidence” had been made on the part of the contes- capacity to enter into a contract.132 The court reasoned tant.146 The court reasoned that the settlor suffered from that the burden of proof in will contests is different from insane delusions and lacked the capacity to execute the the burden of proof in inter vivos transfers. More specifi- trust, which satisfied the two-part test.147 cally, in an action to probate a will, the proponent of the c. Antenuptial Agreements will must establish the decedent’s testamentary capacity In In re Will of Goldberg,148 the decedent executed a by a fair preponderance of the evidence only once that will releasing his wife from their antenuptial agreement capacity has been put in issue.133 However, in an action and a dispute arose as to whether he had the capacity involving an inter vivos transfer, the contestant has the to do such through his will.149 The court held that the burden of establishing the transferor’s incapacity.134 requisite capacity for revoking the antenuptial agree- The contestant in this case submitted evidence includ- ment, even though it was effectuated in the decedent’s ing a police report and hospital records indicating that will, was, in fact, higher than the capacity required for the donor suffered from dementia.135 The evidence fur- making and executing a will. The capacity to release ther included testimony from an attorney who had the spouse from the antenuptial agreement was that of drafted the decedent’s will but ultimately determined the entering into a contract.150 The decedent was diagnosed decedent did not have the capacity to execute the will; with organic brain syndrome resulting from two heart and testimony of an expert psychiatric witness, a nursing attacks and a stroke.151 The court held the antenuptial home physician, and an expert witness in geriatric medi- agreement required a higher level of capacity because the cine, who all maintained that the decedent did not have “[decedent’s] revocation . . . represented the surrender the capacity to understand the nature of the stock trans- of his testamentary freedom in response to his wife’s fers.136 The court subsequently held that the donor did future needs,” creating a bilateral transaction.152 Proving not have the capacity to execute the inter vivos transfer.137 incapacity involved many factors, including whether the b. Trusts decedent understood the revocation, whether his deci- The first case to address the issue of the capacity sion was guided by independent advice and most impor- standard to execute a trust was In re ACN.138 The Sur- tantly, whether the transaction is one that a “reasonably rogate’s Court found a unitrust to be analogous to that competent person” would make.153 The court subse- of a contract given its bilateral relationship between the quently held that the decedent did have the requisite settlor and the trustee.139 The court followed the two- mental capacity to execute such a release in his will.154 part test set forth in a decision rendered by the Court of Appeals in Ortelere v. Teacher’s Retirement Bd.140 The test VI. Conclusion involves (1) application of the cognitive test in which the The trusts and estates practice area, especially in the areas focus is on whether an individual could understand the of estate litigation and elder law, poses unique problems nature and consequences of the transaction and “be able for litigators. Generally, in other areas of litigation, the to make a rational judgment concerning the particular attorney has the benefit of the testimony of the aggrieved transaction,” and (2) the question of whether “by reason party to assist in carrying his or her client’s burden and/ of mental illness or defect” the settlor is “unable to act in a or defending against a claim. In our realm of practice, a reasonable manner in relation to the transaction.”141 Fol- practitioner must rely on the testimony of others, which lowing the burden in Kirshtein, the court in Ortelere held oftentimes is influenced by personal financial motiva- that the contestant bears the burden to prove by clear and tions, bias or may be barred entirely by operation of law. convincing evidence that the settlor lacked the requisite Accordingly, the court or the trier of fact is often left mental capacity to enter into a contract.142 to draw inferences from the medical records and other In this case, the decedent was a savvy tax lawyer pieces of documentary evidence, in addition to wading and executed a trust in which the decedent and his wife through self-serving sworn statements and testimonial held life-time interests with a fee simple remainder to evidence from interested parties. For the most litigating
34 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS
33. N.Y. Rules of Prof’l Conduct Rule 1.2 (2015). attorneys, it can be a great challenge to marshal com- 34. N.Y. Rules of Prof’l Conduct Rule 1.6(a) (2015). pelling evidence to establish the decedent possessed or 35. N.Y. Rules of Prof’l Conduct Rule 1.16(c)(1) (2015). lacked mental capacity. Practitioners, especially scriven- ers, should take special note of these concerns when 36. N.Y. Rules of Prof’l Conduct Rule 1.16(e) (2015). attempting to assist clients with advanced directives 37. Id. and testamentary transactions as their contemporaneous 38. In re Ernest, 271 A.D. 1059, 1059 (4th Dep’t 1949). correspondence, notes and records are often relied on to 39. N.Y. Rules of Prof’l Conduct Rule 1.14(b) (2015). determine if the decedent possessed sufficient capacity to 40. N.Y. Rules of Prof’l Conduct Rule 1.6(a) (2015). execute the challenged legal document. n 41. N.Y. Rules of Prof’l Conduct Rule 8.3(a) (2015). 42. Lawrence A. Frolik, Sufficient Capacity: The Contrasting Capacity Require- 1. In re Estate of Kumstar, 487 N.E.2d 271, 272 (1985). See generally Horn v. ments for Different Documents, 2 Nat’l. Acad. of Elder L. Attorneys J. 303 (2006). Pullman, 72 N.Y. 269 (1878); Clarke v. Sawyer, 2 N.Y. 498 (1849); In re Will of 43. See generally In re Estate of Kumstar, 487 N.E.2d 271 (1985); N.Y. Gen. Slade, 106 A.D.2d 914 (4th Dep’t 1984); In re Beneway’s Will, 272 A.D. 463 (3d Oblig. Law § 5-1501(c) (McKinney 2009). Dep’t 1947); In re Horton’s Will, 26 Misc. 2d 843 (Sur. Ct., Suffolk Co. 1960), aff’d, 13 A.D.2d 506 (2d Dep’t 1961). 44. Frolik, supra note 42, at 303. 2. Robert P. Roca, Determining Decisional Capacity: A Medical Perspective, 62 45. 163 Eng. Rep. 930 (1790). Fordham L. Rev. 1177, 1180 (1994). 46. Id. at 931. 3. Informational Brochure, The Alzheimer’s Ass’n, 2016 Facts and Figures 47. Id. (last visited Oct. 13, 2016), http://alz.org/documents_custom/2016-facts- 48. N.Y. Est. Powers & Trusts Law 3-1.1 (McKinney 1966). and-figures.pdf (2016 Facts and Figures). 49. 487 N.E.2d 271 (1985). 4. Id. 50. Id. at 272. 5. Id. 51. Id. 6. Id. 52. Id. (quoting In re Slade, 106 A.D.2d 914, 915 (4th Dep’t 1984)). 7. Id. 53. 100 A.D.2d 586 (2d Dep’t 1984). 8. Id. 54. Id. at 587. 9. Id. 55. N.Y. Est. Powers & Trusts Law 3-1.1 (McKinney 1966) (practice commen- 10. Id. tary) (Patrick Rohan Pg. 275). 11. Id. 56. Alvarez v. Prospect Hosp., 501 N.E.2d 572, 573 (N.Y. 1986). 12. 2016 Facts and Figures Overview, The Alzheimer’s Association (last vis- 57. Zuckerman v. City of New York, 404 N.E.2d 718, 719–20 (N.Y. 1980). ited Oct. 13, 2016), http://alz.org/facts/overview.asp. 58. Joseph E. G. v. East Irondequoit Cent. Sch. Dist., 273 A.D.2d 835, 836 (4th 13. Robert B. Flemming, Representing the Elderly Client or the Client with Dep’t 2000) (granting summary judgment as the uncertified, unsworn medi- Diminished Capacity, 50 Fam. L.Q. 27, 28 (2016). cal records were not in admissible form). 14. See 2016 Facts and Figures, supra note 3. 59. This is normally accomplished through certification of the medical 15. Id. records pursuant to CPLR 3122-a(c) and CPLR 4518(c). 16. Informational Brochure, Nw. Univ. Feinberg Sch. of Med, What Is Pri- 60. See generally N.Y. Gen. Oblig. Law § 5-1501(c) (McKinney 2009). mary Progressive Aphasia (last visited October 9, 2016) http://brain.north- 61. Id.; 22 N.Y. Jur. 2d Contracts § 26 (2016). western.edu/dementia/ppa/index.html. 62. 22 N.Y. Jur. 2d Contracts § 26 (2016). 17. Id. 63. N.Y. Gen. Oblig. Law § 5-1501(c) (McKinney 2009). 18. Id. 64. Id. 19. Id. 65. In re Imre B.R., 40 Misc. 3d 1237(A) (Sup. Ct., Dutchess Co. 2013). 20. Id. 66. N.Y. Pub. Health Law § 2981 (McKinney 2012). 21. Id. 67. Id. 22. Walter T. Burke, Ethical and Psychological Aspects of Representing the Elderly, 13 Experience 5, 8 (2003). 68. Frolik, supra note 42, at 303. 23. Id. 69. Id. 24. Id. 70. N.Y. Gen. Oblig. Law § 5-1501(c) (McKinney 2009). 25. A. Frank Johns & Bernard A. Krooks, Elder Clients with Diminished Capac- 71. N.Y. Est. Powers & Trusts Law 3-1.1 (McKinney 1966). ity: NAELA’s Response to Specific Case Applications and Its Development of Aspi- 72. N.Y. Pattern Jury Instr. Civil § 7:48 (2015). rational Standards That May Cross Professional Organization Boundaries, 1 Nat’l. Acad. of Elder L. Attorneys J. 197, 214 (2005). Under our law a person of sound mind and memory is said to possess testamentary capacity and may dispose of (his, her) prop- 26. Lindsay Holmes, 11 Statistics That Will Change the Way You Think About erty by will. The question you must decide is whether the testator Depression, The Huffington Post (Jan. 20, 2015, 8:21 AM), www.huffington- possessed these mental qualities at the time (he, she) executed this post.com/2015/01/20/depression-statistics_n_6480412.html. will. The law does not define any particular grade of mental abil- 27. Id. ity necessary to qualify a person to make a will. Wills are made by all types of people, in every stage of life and condition of health; 28. Id. by persons of weak intellect and by those of great ability. The fact 29. Roca, supra note 2, at 1185. that a person is old, or uneducated, or sick, or lacking in business 30. Id. experience, does not prevent him or her from making a valid will. Testamentary capacity, therefore, must be judged by all the circum- 31. N.Y. Rules of Prof’l Conduct Rule 1.14(a) (2015). stances of the case, taking into consideration the particular testator 32. N.Y. Rules of Prof’l Conduct Rule 1.3(a)(b) (2015). and the particular will involved.
NYSBA Journal | January 2017 | 35 73. In re Estate of Donaldson, 38 Misc. 3d 841, 844–45 (Sur. Ct., Richmond Co. interest from, through or under a deceased person or mentally ill 2012); In re Matter of Will of Goldberg, 153 Misc. 2d 560, 565 (Sur. Ct., N.Y. Co. person, by assignment or otherwise, concerning a personal trans- 1992). action or communication between the witness and the deceased person or mentally ill person, except where the executor, admin- 74. Id. istrator, survivor, committee or person so deriving title or interest 75. In re Donovan’s Estate, 47 A.D.2d 923, 924 (2d Dep’t 1975). See In re McClo- is examined in his own behalf, or the testimony of the mentally ill skey, 307 A.D.2d 737, 738 (4th Dep’t 2003). person or deceased person is given in evidence, concerning the 76. In re Estate of Johnson, 6 A.D.3d 859, 860–61 (3d Dep’t 2004); N.Y. Est. same transaction or communication. Powers & Trusts Law 3-2.1 (McKinney 1974). 109. Id. (practice commentary) (Vincent C. Alexander § C4519:1). 77. Id. 110. Id. 78. Id. 111. Id. 79. In re Estate of Vosilla, 121 A.D.3d 1489, 1491 (3d Dep’t 2014). 112. Id. 80. In re Hayes’ Estate, 49 Misc. 2d 152 (Sur. Ct., Bronx Co. 1966). 113. Tworkowski v. Tworkowski, 181 Misc. 2d 1038, 1041 (Sup. Ct., Kings Co. 81. Id. 1999). 114. Laka v. Krystek, 261 N.Y. 126, 130 (1933). 82. Id. at 153. 115. Id. 83. Id. 116. CPLR 4519 (McKinney 1962) (practice commentary) (Vincent C. Alexan- 84. Id. der § C4519:3). 85. 2 Harris N.Y. Estates: Probate Admin. & Litigation 24:278 (6th ed. 2015). 117. De Laurent v. Townsend, 243 N.Y. 130, 132–33 (1926). 86. In re Putnam’s Will, 257 N.Y. 140 (1931). 118. 205 N.Y. 384, 387 (1912). 87. In re Burke, 82 A.D.2d 260 (2d Dep’t 1981). 119. Endervelt v. Slade, 162 Misc. 2d 975, 980 (Sup. Ct., N.Y. Co. 1994), aff’d, 214 88. Petrie v. Chase Manhattan Bank, 38 A.D.2d 206 (1st Dep’t 1972). A.D.2d 546 (1st Dep’t 1995). 89. Estate of Reiner, 86 Misc. 2d 511 (Sur. Ct., N.Y. Co. 1976). 120. In re Chiurazzi, 296 A.D.2d 406. 90. Estate of Arnold, 125 Misc. 2d 265 (Sur. Ct., N.Y. Co. 1983). 121. Id. 91. Estate of Eckert, 93 Misc. 2d 677 (Sur. Ct., N.Y. Co. 1978). 122. Id. at 981–82. 92. Will of Bartel, 161 Misc. 2d 455 (Sur. Ct., N.Y. Co. 1994), aff’d, 214 A.D.2d 123. Id. 476 (1st Dep’t 1995). 124. Id. 93. Matter of Bach, 133 A.D.2d 455 (2d Dep’t 1987). 125. In re ACN, 133 Misc. 2d 1043 (Sur. Ct., N.Y. Co. 1986). 94. 2 Harris N.Y. Estates: Probate Admin. & Litigation § 24:278 (6th ed. 2015). 126. Id. 95. Estate of Kumstar, 66 N.Y.2d 691, 691 (1985). 127. 17 Misc. 3d 1103(A) (Sur. Ct., Kings Co. 2007). 96. Jesse Dukeminier & Robert H. Sitkoff, Wills, Trusts, and Estates 19 (Vicki 128. Id. at *5–6. Been et al. eds., 9th ed. 2013). 129. Id. 97. See generally In re Will of Khazaneh, 15 Misc. 3d 515 (Sur. Ct., N.Y. Co. 130. 83 A.D.3d 153 (4th Dep’t 2011). 2006). 131. Id. at 155. 98. 26 Misc. 2d 843 (Sur. Ct., Suffolk Co. 1960). 132. Id. at 159. 99. Id. at 847 (citing Delafield v. Parish, 25 N.Y. 9 (1862); In re Coddington’s Will, 281 A.D. 143 (3d Dep’t 1952), aff’d, 120 N.E.2d 777 (1954)). 133. Id. at 158. One may be able to make a will though afflicted with a fatal dis- 134. Id. ease. A will is not necessarily rejected because testator does not 135. Id. at 156. make it until near death, nor because he is ill or weak. [O]ne need 136. Id. at 156. not have perfect mind or memory[.] An elderly person may have good days and poor days. Testamentary capacity is not destroyed 137. Id. at 161. retroactively by events happening after execution. (citations omit- 138. ACN, 133 Misc. 2d at 1043. ted) 139. Id. at 1046–47. 100. In re Minasian, 149 A.D.2d 511, 511 (2d Dep’t 1989). 140. Id. at 1047 (citing Ortelere v. Teachers Retir. Bd., 25 N.Y.2d 196, 201–02 101. In re Estate of Buchanan, 245 A.D.2d 642, 645 (3d Dep’t 1997). (1969)). 102. 296 A.D.2d 406 (2d Dep’t 2002). 141. Id. at 1047 (emphasis added). 103. Id. at 407. 142. Id. at 1048. 104. 13 A.D.3d 954 (3d Dep’t 2004). 143. Id. at 1044. 105. Id. at 956–57. 144. Id. at 1047. 106. Id. 145. Id. at 1046. 107. CPLR 4519 (McKinney 1962). 146. Id. at 1048. 108. Id. (practice commentary) (Vincent C. Alexander § C4519:1). CPLR 4519 147. Id. provides in pertinent part: 148. 153 Misc. 2d 560 (Sur. Ct., N.Y. Co. 1992). Upon the trial of an action or the hearing upon the merits of a 149. Id. at 561. special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested 150. Id. at 565. person derives his interest or title by assignment or otherwise, 151. Id. at 561. shall not be examined as a witness in his own behalf or interest, 152. Id. at 565. or in behalf of the party succeeding to his title or interest against the executor, administrator or survivor of a deceased person or the 153. Id. at 566. committee of a mentally ill person, or a person deriving his title or 154. Id. at 567.
36 | January 2017 | NYSBA Journal
Dementia in the Courtroom By David Klein and Kyle Durante
I. Introduction II. Teepa’s Emphasis on Dementia Demographics4 The Touro Law Center’s Institute on Aging and Longev- Teepa explained that dementia is not a normal part of ity Law, supported by a grant from the Jerry Stock Trust, aging, notwithstanding that with an increase in age Phyllis Dubrow, Esq., trustee, and in cooperation with comes an increase in the prevalence of dementia. Teepa the Dementia Spotlight Foundation, the New York State gave us the good and bad news of living a long life: “If Office of Court Administration and members of the New we all make it to 85, 50 percent of us will have it. As a York State Bar Association, sponsored a program titled matter of fact, right now, somewhere between five to 15 “Dementia in the Courtroom,” that featured Teepa Snow years before you show the signs of it, you already have it. (hereinafter “Teepa”).1 It’s already in your brain. It’s already cooking. It’s already Teepa is a nationally recognized expert on dementia.2 changing.” The purpose of her participation was to educate experi- She also explained that often with dementia, the per- enced attorneys and judges as to the important role they son affected is also likely to suffer from comorbidities.5 have in helping to improve quality of life for individuals For every person who has dementia, they have on living with the disability of dementia. Not one to mince average three other health conditions going on. It’s not words, Teepa challenged the program attendees: If the just a dementia. . . . The most common will be a physi- legal profession doesn’t protect and advocate for people cal ailment and the most common of those are arthritis, with dementia, “Who the hell will?” hypertension, diabetes, and blood supply, oxygen- With the input of judges and attorneys, most notably ation, and energy supply issues. Arthritis results in Fern Finkel, Esq., Ira Salzman, Esq., and Louis Levenson, pain, which controls how you move and what you Esq., Teepa began the program with a series of role-play think is happening. segments, which identified common behaviors exhibited Then you have emotional or mental health conditions, by persons with dementia in their homes and in court which are very common in people suffering from settings. She highlighted that those victim to dementia diminished mental capacity. The two most common sometimes, knowingly out of fear or involuntarily due are anxiety and depression . . . 50 percent will have to the effects of the disease, are able to disguise their clinical signals and symptoms that actually have a clin- cognitive decline. This would be difficult to discern in a ical diagnosis of anxiety or depression. Some people have both. Some people have neither. courtroom setting and might come in the form of confab- ulation,3 isolation or through aggressive and combative And the last condition that most people have, the third behaviors or interactions with those trying to help. condition will be a sensory thing. A vision change, a
38 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS
hearing change, or a movement or balance/coordina- forms of dementia, all of which have different effects on tion thing. So it’s due to Parkinson’s, it’s due to things the AIP’s capabilities. like diabetes. They have diabetic retinopathies; they In order for a judge to be able to adequately determine have visual problems. The most common being cata- the form of intervention that is necessary for the AIP, they racts. Cataracts, macular degeneration. Hearing, they need to understand exactly what the individual is suffer- can’t hear high-pitched sounds. ing from and how the illness might affect the AIP. This Once the disease starts it cannot be stopped. Once program has “[p]rovided [judges with] an understand- again, without mincing words, Teepa reminds us, “The ing of the development of the disease [assisting them in] disease literally kills your brain.” understanding how the needs of those afflicted by the Teepa explained that before dementia kills its victims, [illness] will continually change.” in late stages of the disease progression,6 an individual Finally, the program “[p]rovided an in[-]depth view will lose awareness of hunger and thirst and when of how the illness affects the family members.” While a actively dying will refuse to be fed for this reason. Some judge in an Article 81 proceeding is supposed to take into dementia patients may suffer from the side effects of consideration the capabilities of the AIP, they must also medication and/or from other seemingly non-related take other factors into consideration, including family medical conditions and they may be no longer able to members’ abilities to handle the functional limitations of wake/sleep on a regular pattern. the AIP. Judges in Article 81 proceedings prefer to allow a Also palpable during Teepa’s presentation was the family member to serve as a guardian when it is permis- undeniable fact that lawyers and judges are just as likely sible. However, a judge must thoroughly understand the as all other Americans, regardless of professional status toll that this may take on the family member and must be and wealth, to be disabled by dementia themselves, as are able to assess how this illness may affect family members their loved ones, elderly parents, spouses, and children. to be sure that the AIP is adequately protected. It was impossible for the attendees not to wonder about their own morbidity and mortality as Teepa focused on Hon. Tanya R. Kennedy the real-life consequences caused by the current and Judge Kennedy (Sup. Ct., N.Y. Co.) believes this program growing epidemic of dementia. “informed [her] about the various forms of dementia and how they manifest” and “informed her about the tests III. Judicial Perspectives used to diagnose dementia and the misconceptions about As evidenced by the following commentaries of Hon. the disease.” One of the most difficult issues in the area Charles Troia and Hon. Tanya R. Kennedy, two Article of aging and dementia is actually determining whether 81 guardianship judges, Teepa’s presentation provided the person is suffering from diminished mental capac- invaluable insight: ity and if so, determining what the illness is and what can be expected. There are numerous methods used to Hon. Charles M. Troia attempt to diagnosis the different types of dementia. Only Judge Troia (Sup. Ct., Richmond Co.) believes this pro- with the proficient usage of these tools can the judiciary gram has “provided [him with the] tools for communi- adequately determine what the appropriate needs of the cating with and easing the fears of individuals suffering AIP currently are and what they might be in the future. from dementia as they are before the court.” Judges com- This program provided “greater insight regarding monly have difficulty accessing the functional limitations the reasons why AIPs display certain behaviors in the and the severity of a person’s illness because they do not courtroom and that may be perceived as disruptive.” A thoroughly understand the diseases. Court evaluators in judge must be capable of understanding the functional an Article 81 proceeding are there to help bridge a gap limitations of the individual and their ability to under- between the alleged incapacitated person (AIP) and the stand the proceeding before them. Often, an AIP will courtroom; however, if they don’t sufficiently understand have outbursts in the courtroom, but that is not because the illness, a gap will still exist. they are purposely trying to be disruptive, rather their This program has “educated [members of the judi- body is responding to what is before them because they ciary] on the various forms and symptoms of dementia are unsure of what is going on. This program provided and provided [them] with means of accessing whether practitioners with insight on how to approach the AIP someone is suffering from dementia” and has “provided and explain the procedures to them. an understanding of the limitations and fears of individu- David Klein, Esq. is a partner in the firm of Klein & Klein, P.C. Kyle als suffering from their dementia.” It is a common occur- Durante is a Juris Doctor Candidate at Touro College’s Jacob D. Fuchs- rence that untrained people will see an elderly person berg Law Center. He earned a B.A. in Political Science from the University act out-of-character and assume they are suffering from at Buffalo, the State University of New York and an A.S. in Criminal Jus- Alzheimer’s, or hear that a person has dementia and tice from Erie Community College. He is a Law Clerk at Abrams, Fenster- automatically assume that it is Alzheimer’s. However, man, Fensterman, Eisman, Formato, Ferrera, & Wolf, LLP. what people fail to realize is that there are numerous
NYSBA Journal | January 2017 | 39 This program equipped members of the judiciary with to lessen the formalities in order to reduce stress, get an “greater insight and sensitivity as to how AIPs perceive accurate representation of the AIP, and hopefully be bet- language set forth in the Order to Show Cause.” The stan- ter equipped to direct outcomes on that person’s behalf. dard form for an Order to Show Cause is large, bolded Judges can lessen the formalities by meeting around a language in the center of the cover, in an attempt to notify conference table, instead of traditional benches, or not the person receiving such that they need to respond. wearing their robe, for example. Judges should be lenient While a person that is not suffering from diminished and flexible with the AIP due to their changing disability, mental capacity may be able to adequately and appro- as it is necessary to get an accurate representation of the priately receive that information, a person suffering from limitations of the AIP. diminished mental capacity may not be able to under- stand the language. There are ways in which practitioners IV. Conclusion can ease the process for AIPs, which starts with the forms As evidenced by the comments of Judge Troia and Judge they use. Instead of using white paper with large, bolded Kennedy, we in the legal profession must address and black lettering, they should use black paper, with white, recognize the legal, financial, and medical challenges large bolded lettering. White lettering on black paper is that impact millions of Americans who have and will be easier for persons with poor eyesight or poor cognitive diagnosed with dementia. Inevitably these individuals, function to read and comprehend. their family members, business colleagues, and neighbors Finally, this program informed judges of the “greater will reach out to the legal profession for assistance, which sensitivity as to how the courtroom’s physical envi- requires lawyers and judges to more thoroughly under- ronment impacts the AIP.” There are many AIPs that stand and be prepared for the ever-growing dementia come before the court that may have never set foot in a crisis. n courtroom in their entire life. There is also the common misconception of the person living with dementia, that 1. Teepa Snow, www.teepasnow.com. due to the communication and comprehension limits 2. Teepa Snow, www.teepasnow.com/about/about-teepa-snow. of their disease progression, when they come to court, 3. R. Morgan Griffin, What It’s Like to Have Dementia, WebMD, www. webmd.com/alzheimers/features/understanding-dementia-symptoms. they believe they are either “in trouble” or someone is 4. This portion of the article is based on transcripts from the event. The going to impede upon their rights. Practitioners need transcripts are on file with the author. to understand that it is extremely stressful for a demen- 5. Fact Sheet, Ctrs. for Disease Control and Prevention, www.cdc.gov/ tia disabled AIP to attend court. It is stressful for most arthritis/data_statistics/comorbidities.htm (last updated May 27, 2015). people to attend court who have limited knowledge of 6. Angela Morrow, What’s it Like to Die of Dementia, VeryWell, https://www. the court system and do not suffer from diminished men- verywell.com/what-is-it-like-to-die-of-dementia-1132331 (April 27, 2016). tal capacity. This program clarified for practitioners the See also Fact Sheet, Ctrs. For Disease Control and Prevention, www.cdc.gov/ nchs/fastats/alzheimers.htm (last updated October 6, 2016). best ways to approach an AIP and that a judge may wish Are you feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help.
We understand the competition, constant stress, and high expectations you face as a lawyer, judge or law student. Sometimes the most difficult trials happen outside the court. Unmanaged stress can lead to problems such as substance abuse and depression. NYSBA’s LAP offers free, confidential help. All LAP services are confidential and protected under section 499 of the Judiciary Law.
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40 | January 2017 | NYSBA Journal Experiential Wisdom Insightful Perspectives on Dementia, the Legal Profession and the Law By Robert Abrams
The disease is devastating. It destroys people and ccording to Michael Miller, Esq.1, President-Elect their families. There is no cure and no effective treat- Nominee of NYSBA: ments. Nothing relieves the burden of the care that is ALawyers serve on the front-lines of many com- needed. Family and informal caregiving takes a huge pelling social issues, but few, if any, are more pro- toll on the caregiver. Paid caregiving is enormously found than those relating to dementia. Dementia expensive, often wiping out a lifetime of savings. The poses extraordinary challenges for the individuals burden on the family is enormous. There is very little directly affected, as well as for their loved ones. Law- that can be done. However, there is legal and financial yers can’t cure dementia, but those practicing in the planning that will ease the burden and make it better areas of elder law and estate planning are uniquely for the caregivers and the family. I tell my clients that qualified to help develop an effective financial and I cannot help cure the patient or personally care for care plan. Whether representing individuals and fam- the patient, but I can give advice that will ease (not ily members facing this scourge for a fee or pro bono, eliminate) the financial burden by explaining how to lawyers play an important role in making the best of utilize Medicaid. I can provide legal documents like a an extraordinarily difficult and frightening reality in HIPAA Medical Privacy Release, a Health Care Proxy the human drama. and a Living Will to help the family deal with medical decisions. And I can provide legal documents like a Robert Freedman, Esq.2 provides further insight as to Power of Attorney, Trusts and if necessary a Guard- why dementia has had a major impact on the legal profes- ianship that will allow the caregivers to deal with the sion and the law: legal and financial issues that arise when the patient lacks the capacity to handle them. I cannot solve or There is a high correlation between aging and demen- ameliorate the burden of care and the pain of the dis- tia. The field of elder law is burgeoning not just ease as it destroys a loved one, but I can make it easier because of demographic growth but because of the to deal with. epidemic of dementia that accompanies the increase in life expectancy in the US and across the world. The Robert Abrams, Esq., Abrams, Fensterman, Fensterman, Eisman, Formato, dual phenomenon of contemporaneous growth of Ferrara & Wolf, LLP. Mr. Abrams thanks his colleagues Christopher Renke, dementia and longevity created a vital need for a legal Esq., Sara Clark and Meghan Ivory for their assistance. community response.
NYSBA Journal | January 2017 | 41 I will be the first to acknowledge that the people on the court staff need to look at the person with dementia front line as caregivers, whether informal or paid, or as or any other condition resulting in diminished mental a support group leaders or participants have the more capacity, with a non-judgmental, non-critical, caring difficult roles, but I take comfort in the belief that I can eye in order to accurately evaluate the person’s wishes contribute to make life a little bit easier for my clients and concerns. The stress of being in a new environ- and their families. ment makes it very difficult for the court to be able to competently assess the mental capacity of a frightened, The Hon. Justice H. Patrick Leis, III,3 who has presided defensive and stressed individual and to assess the over hundreds of guardianship matters and has written person’s ability to communicate his/her needs and many seminal decisions, including In re Buffalino (James wishes. D.)4 and Christopher C. v. Bonnie C.5, shares Mr. Freed- I have personally conducted a guardianship hearing man’s belief that lawyers and judges must be sensitive in a nursing home where the initial recommendation The legal community has and also needs to continue to partner with representatives of state government to ensure that the dementia-induced legal needs of all New Yorkers are met. to and understanding of the unique challenges faced of the court evaluator had been that the Alleged Inca- by individuals with dementia and their loved ones. In pacitated Person (AIP) was incapable of meaningfully participating in the hearing, but because of the use of particular, Judge Leis urges his colleagues to be patient a therapy/emotional support dog obtained by family and observant in assessing and communicating with indi- members, the court was not only able to communicate viduals who have dementia: with the AIP but also was able to discern the indi- Dementia is a condition effecting more and more vidual’s needs and wishes. people who enter our Guardianship courtrooms. What Being able to look into a person’s eyes and see the it means to the courts is that the usual and custom- essence that is not affected or limited by the particular ary methods of communicating with an individual mental or physical condition is a great help in relax- need to be reconsidered. Dementia not only affects the ing that individual and enabling him or her to com- individual, it impacts the individual’s family as well. municate. Even if the communication is the blink of This also must be recognized. For the family, it means an eye or the raising or lowering of the thumb, the taking on responsibilities previously handled by the communication has been made possible. Being able to individual which can often create resentment, impa- imagine what it would be like to be in the shoes of a tience and fatigue. person with diminished capacity goes a long way in For the individual who has dementia, a gradual slip opening the door for understanding and communica- in memory and inability to be independent is terrify- tion. Empathy and compassion are indeed a universal ing and at times overwhelming. Dealing with this language in and of themselves. condition requires great patience, understanding and In addition to and in furtherance of the need for judi- tolerance. People with dementia try to hide the fact cial sensitivity expressed by Justice Leis, the Hon. Thom- that their memory is failing and they become anxious 6 performing tasks that they used to do with ease. Anger as P. Aliotta cautions the legal community that a person and anxiety are a common reaction when they perceive who is diagnosed with dementia may not automatically what is happening to them, for make no mistake – they require the appointment of a guardian. If, however, a know something is happening to them. Accordingly, determination is made pursuant to Article 81 of New adjustments to the courts’ interactions with them and York’s Mental Hygiene Law that the appointment of a the court system’s response to their defensiveness and guardian is necessary, the guardian must only be autho- anger, must be made. rized to make decisions on behalf of the incapacitated We also need to recognize that in addition to the tra- person which constitute “the least restrictive form of ditional forms of elder abuse – physical, emotional intervention consistent with the person’s functional limi- and financial – there is another form. This fourth form tations and the likelihood of harm because of the person’s of abuse is the way that we as a society (including inability to adequately understand and appreciate the attorneys, judges and court staff) react to and look at a nature and consequences of such functional limitations.”7 person who is suffering from a mental limitation. Judge Aliotta further reminds us that MHL § 81.29 How to recognize the condition and serve the indi- specifically addresses the rights retained by an incapaci- vidual is an evolving task. Interacting in a kind and tated person if a guardian is appointed: understanding manner is extremely helpful in opening (a) An incapacitated person for whom a Guardian a door of communication. All attorneys, judges and has been appointed retains all powers and rights
42 | January 2017 | NYSBA Journal THE DEMENTIA CRISIS
except those powers and rights which the Guardian is individual perpetrating a criminal act, e.g., traffic acci- granted; [and] dent with grave consequences due to “driving while demented,” shoplifting, or other antisocial behaviors (b) Subject to subdivision (a) of this section, the due to dementia. Yet another set of issues relates to appointment of a Guardian shall not be conclusive an accurate causal attribution of cognitive impairment evidence that the person lacks capacity for any other (e.g., is it due to a medical procedure, an injury suf- purpose, including the capacity to dispose of property fered in a fall, or due to a preexisting dementia). by will.8 A casual reliance on courtroom “common sense” falls Therefore, pursuant to Article 81 and other New York short in addressing these issues. An aging individual statutes, every New York adult is presumed to have may have an intact bank of general knowledge, rela- capacity and, if ultimately a court determines the person tively intact memory, and even a rhetorical ability to has diminished capacity and requires assistance, such answer questions whether it is OK to shoplift if you assistance should be “tailored to the individual needs don’t have enough money to buy what you want, to of that person, which takes into account the personal run a red light when in a hurry, or to trust total strang- ers with your money, yet be unable to make sound wishes, preferences and desires of the person, and which decisions and exercise sound judgment in real life. affords the person to the greatest amount of indepen- Such breakdown of judgment and decision making is dence and self-determination and participation in all the caused by an impairment of so-called executive func- 9 decisions affecting such person’s life.” tions, which is among the earliest manifestations of This legislative objective begs the question as to the dementia and can be quite elusive to the untrained eye competence of judges and attorneys to not only assess of a lay person or a lawyer. capacity but to truly appreciate the capacity continuum. To accurately address these and many other issues Throughout this special issue on the dementia crisis, we arising on the intersect of dementia and the law, spe- have emphasized that there are more than 100 types of cial expertise and specialized procedures are often dementia and each type has its own unique set of conse- required. The field of neuropsychology offers such quences be it, inter alia, an assault on its victims memory, expertise, as well as specialized neurocognitive tests judgment, motor skills, behavior, appetite, sleep habits designed to be sensitive to cognitive impairment and and/or activities of daily living. What training have most to assess various aspects of cognition in a precise judges and lawyers participated in, if any, to truly under- quantitative way. If this approach to diagnosis were to stand the nature, nuances and extent of the dementia be adopted or even considered by the courts, the juris- epidemic? Moreover, should judges and lawyers rely on prudence of capacity could be significantly, perhaps dramatically, altered. That could be a signal moment in anecdotal evidence of an alleged incapacitated person’s reconciling legal and scientific concepts in the interest need for assistance and/or on input from physicians and of justice and the fair administration of the law. other health care professionals? I discussed this dilemma with Harry Ballan,10 Dean of Both Dean Ballan and Dr. Goldberg recognize that the Touro College Jacob D. Fuchsberg Law Center. Dean the dementia epidemic requires a joint “medico-legal” Ballan and I discussed the need for the legal community partnership. to collaborate with other professionals including, but not The legal community has and also needs to continue limited to, scientists and physicians. As a result of our to partner with representatives of state government to discussions, Touro Law Center’s Aging and Longevity ensure that the dementia-induced legal needs of all New Institute plans to present a special program in June of this Yorkers are met. In this light, I was able to facilitate year titled “Dementia, Science and the Law: A Need for the formation of New York State Legal Services Initia- Mutual Collaboration.” tive, which is a collaboration of NYSBA, the New York Elkhonon Goldberg, Ph’D, ABPP-CN,11 an interna- State Office of Court Administration (OCA), the New tionally renowned neuropsychologist and cognitive neu- York State Office for the Aging and other state agencies. roscientist, provided Dean Ballan and I with insight as to According to Vera Propser, Ph’D,12 who recently retired the importance of an inter-disciplinary collaboration: as the Initiative’s director: Increased longevity has resulted in profound demo- The Initiative’s Partnership was established in 2012 graphic changes characterized by a large number of and is an effective collaboration at the policy level aging individuals with dementia in society. This has among the legal community, the court system, and the brought forth a host of unique legal issues requiring human services networks. Promoting this same type of novel approaches and deeper understanding of the collaboration at the community level is a major goal of nature of the clinical conditions at hand. One set of the Partnership’s activities. issues involves the assessment of the elderly individ- We have found that where such collaboration exists, ual’s competence to make testamentary, legal, medi- everyone involved in a client’s presenting problem cal, financial, and business decisions. Another set of understands how the social, health, legal, and familial issues relates to the diminished capacity of an elderly factors shaping that problem are having an interac-
NYSBA Journal | January 2017 | 43 tive impact, and that addressing individual factors Acting Director Olsen and Dr. Prosper both mention or issues in isolation often leads to repeated occur- the challenge for family members of individuals with rences of the same problem. The Initiative’s activities dementia. Bob Lipp14 provides insight regarding the promote using a collaborative, holistic approach to practical and common non-legal challenges attorneys more successfully effect a sustained resolution of a confront when meeting with an individual with dementia client’s situation. Such an approach is particularly and family members: important when assisting caregivers, who, in addition to assuming responsibility for the problems and issues When the subject of the conversation concerns a fam- of the family member receiving the care, can experi- ily member who has been diagnosed with demen- ence their own physical and emotional stress, health tia, it requires a sensitivity and understanding that decline, financial problems, job loss, marital or family addresses a range of issues. These issues run the discord, and other problems as a result of the caregiv- gamut, from the psychological impact, to discuss- ing responsibilities. The multiple impact of caregiving ing and dealing with a myriad of business, financial duties is exacerbated when the individual requiring and legal matters. The attorney’s ability to relate to care and assistance has Alzheimer’s Disease, other and appreciate the possibility that the client may be forms of dementia, or a developmental and/or intel- hampered by various levels of denial, guilt, fear, or lectual disability. even greed, make it incumbent upon him or her to be a great listener and to rely on non-verbal communica- 13 As best told by Greg Olsen, acting director of the tion to fully understand and relate to the concerns of state Office for the Aging, the Legal Services Initiative is the client. It’s a burdensome challenge for an attorney a collaboration that actually provides meaningful data who may find themselves caught up in dealing with a and assistance: range of human emotions, while addressing practical It became increasingly clear that significant numbers and necessary realities. of older individuals, persons with disabilities and families could not find access to affordable legal help Putting the practical realities and family dynamics in civil matters. The intent of the State’s Legal Services aside, attorneys often experience serious ethical chal- Initiative was to move from anecdote to science via 7 lenges as they must confirm “who” is the client – the statewide surveys to understand in more depth the individual with dementia and/or the one or more family experiences of individuals, judges and lawyers and to members. The following is a sample of potential family use that data to set priorities and to develop actions conflicts that may arise: and strategies that will enhance the availability of affordable legal assistance and help people gain access 1. A commencement of a divorce action by the well to this assistance. spouse. Such an action may be commenced to expe- dite the eligibility of the spouse with dementia for While the Initiative focused on the status of legal Medicaid and other government programs, prevent service for older adults, people of all ages with dis- the financial impoverishment of the well spouse and/ abilities, and the unpaid caregivers of these two popu- or simply to enable the well spouse to move on and lations, the activities that the Initiative’s Partnership is not be responsible to pay medical bills or provide care. employing will have a positive impact across all com- munity members. For example, “access” is affected by 2. Concerns by some family members that the cost of the quality of communication skills. As an activity to care will reduce if not eliminate a possible inheritance. improve access, the Partnership is developing a CLE 3. Disputes as to how, by whom, and how often care training course that is meant to improve the effective- should be provided. ness of communication between attorneys from all 4. What family members have a right to reside in or legal disciplines and their clients, many of whom have make a claim of ownership of the personal residence various types of disabilities, or are experiencing aging- of the family member with dementia. related physical and cognitive changes, or have limited English-speaking ability, or their cultural norms and 5. Disputes between children of first marriage and cur- expectations differ from other population groups. rent spouse of individual with dementia. Another example is a program of community-based 6. Family members who pressure a loved one with Learning Sessions that will be available to all commu- dementia to change their estate plan. nity members. The intent is to increase understanding of legal topics (such as power of attorney, hospital The list could go on and on. The stress of caring for observation status, understanding dementia), legal a loved one with dementia combined with an array of processes (such as guardianship, eviction, child custo- related financial concerns, emotional entanglements and dy), court room procedures, and alternative resources the fear of the unknown often results in familial upheav- for affordable legal help. These learning sessions can al. When such scenarios occur, the ability to serve as a help individuals and families better understand situ- family attorney is difficult and arguably inappropriate as ations they encounter and can help prepare them for the objectives of two or more family members may be in actively taking alternative actions before problems conflict. turn into crisis situations.
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Challenges of a different nature occur when an attor- provided legal services to judges and lawyers who have ney represents a third party and/or entity that is at con- dementia. flict with an individual with dementia. While the attor- Deborah A. Scalise,18 a partner in the firm of Scalise ney’s ethical duty to his or her client is clear, non-legal & Hamilton, LLP, which focuses its practice on the rep- factors may force the attorney to recommend that his or resentation of professionals in professional responsibil- her client exercise restraint and sensitivity beyond what ity and ethics matters, shares her approach to recognize the law requires. dementia in colleagues, in hopes of avoiding embarrass- For example, Lawrence DiGiovanna,15 Esq., provides ment or disciplinary action: the challenges that exist for attorneys representing land- For lawyers who lack capacity, the newly enacted lords: Rules for Attorney Disciplinary Matters, effective In the context of a multiple dwelling, particularly October 1, 2016, at 22 N.Y.C.R.R. § 1240.14 titled Attor- cooperatives and condominiums, the landlord, has an ney Incapacity, provide for a lawyer to be suspended obligation to maintain a level of quiet enjoyment for if he or she lacks capacity. Judges with dementia retire the residents, especially with respect to common areas or are removed based on their conduct. of the building or outdoor portion of the property. This Very often, a lawyer or judge with an exemplary can be particularly challenging when an individual 30- to 40-year career and an unblemished reputation with Dementia is a member of the community. Pos- hits a certain age, usually between their 60s and 70s, sible offensive behaviors can range from excessive and complaints about their behavior or lack of judg- noise, and/or hoarding which presents fire hazard, ment are filed. These complaints may be indicative of
Attorneys often experience serious ethical challenges as they must confirm “who” is the client – the individual with dementia and/or the one or more family members.
to abusive and aggressive conduct although, perhaps, dementia. The complaining party is a client, an adver- not criminal, to a resident’s failure to observe basic sary, a coworker, an employee/former employee, or hygiene standards of both their person and dwelling. a litigant. The complaints are initially made to the The landlord or other management body is obligated lawyer or judge, who assures the complaining party to take action to suppress the disruptive conduct. Of that he or she will address the issue. If there is no course, this should be balanced with a compassionate response and the lawyer or judge works with others, concern for the welfare of the offending individual the complaints are next made to their partners or an who is part of the community. Often it is appropriate administrative judge. And, finally, when the complain- to consult with Adult Protective Service or a similar ing party is frustrated, he or she complains to either a agency for a possible intervention and to determine Grievance Committee or the Judicial Conduct Com- whether that will stem the conduct. Sometimes, family mission. This is where an attorney or an administrative members can intervene. judge may have to get involved. They have the delicate The challenge of balancing the rights and interests of task of identifying the issues in order to defend the an individual with dementia and the rights and inter- lawyer or judge to protect their individual interests ests of others places ethical and legal obligations on all while balancing the interests of a law firm and its cli- counsel. In a litigation context, for example, the attorney ents, or the court, and the litigants. for a plaintiff who commences an action against an ex The first tool is intake. Our firm has a client fill out parte defendant who appears to have diminished mental client intake forms that request information, including capacity must inform the court and request the appoint- date of birth; year of admission; jurisdictions where ment of a guardian ad litem.16 The question for the attor- admitted; the number of pending complaints; whether ney (and the judge) is at what point does the defendant the client has any history of complaints or has ever been sanctioned by any court or in any jurisdiction; meet the statutory definition of a guardian ad litem, i.e., and whether he or she has been subject to malpractice that the party is “incapable of adequately prosecuting or actions. The intake form provides invaluable informa- 17 defending his rights. tion and clues prior to the consultation. For instance, Possibly even more troubling for attorneys are the the following answers raise issues that need to be potential ethical and/or malpractice consequences when explored in the interview: the number of recent com- a working partner or employee in their law firm appears plaints, sanctions, and/or malpractice actions within to be experiencing a cognitive decline and/or dementia. the last five years, and the lack of a prior history in a Moreover, many of us have witnessed and in some cases, career that spans decades. While everyday problems
NYSBA Journal | January 2017 | 45 such as business partnership break-ups, marital issues, 5. Have you ever been arrested or convicted of a vio- or caring for a sick relative may contribute to erratic lation, a misdemeanor or a felony? conduct, there are occasions where the answers to the 6. Have you been involved as a caregiver for any aforementioned questions are telltale signs of demen- family member for medical or psychological or tia. Thus, it is crucial for an in-person meeting. addiction issues? If so, what were they diagnosed The person handling the complaint should not del- with? egate this to someone else because of the sensitive I turn to the New York Rules of Professional Conduct nature of the issues. This is especially so because the (RPC) at 22 N.Y.C.R.R. § 1200 Rule 1.14 – Client with lawyer or judge who may have dementia (or other Diminished Capacity, which sets forth an attorney’s mental health issues) may be adept at covering his or obligations when dealing with clients whose capac- her erratic behavior and/or may not even be aware ity is questionable. Rule 1.14 has three sections that that his or her behavior is erratic. And, I am sure that appear to permit the attorney to use reasonable judg- we can all agree that lawyers and judges are persua- ment to determine whether the client has the “capacity sive, so, in all likelihood, they will be on their best to make adequately considered decisions in connec- behavior to get the interviewer to like, agree with, and tion with a representation is diminished, whether defend them. A seasoned lawyer or administrative because of minority, mental impairment or for some judge should have the requisite experience to observe other reason . . . .” and “the lawyer shall, as far as and scrutinize the lawyer’s or judge’s behavior. reasonably possible, maintain a conventional relation-
Sadly, a few of us have even participated in guardianship matters where the incapacitated person was a former judge or lawyer who failed to plan.
At the beginning of the interview, the facts surround- ship with the client.” If the lawyer has done so and is ing the complaint, including a chronological account unable to maintain the relationship, he or she looks to of what happened, should be discussed with the law- the next section, RPC 1.14(b), which provides, yer or judge present, and in turn, the lawyer or admin- [w]hen the lawyer reasonably believes that the cli- istrative judge to observe. While the lawyer or judge ent has diminished capacity, is at risk of substan- may be upset by the complaint, his or her answers to tial physical, financial or other harm unless action the following questions are useful: does he or she have is taken and cannot adequately act in the client’s command of the facts and is his or her reasoning logi- own interest, the lawyer may take reasonably cal? Does he or she provide incomplete facts or lack necessary protective action, including consulting recall of the facts? Are they missing documents? Is his with individuals or entities that have the ability to or her reaction to the questions posed disproportion- take action to protect the client and, in appropri- ate to what is asked, such as a tirade in response to a ate cases, seeking the appointment of a guardian simple factual question or giggling when you mention ad litem, conservator or guardian. that they may be subject to discipline for their behav- ior? These are all telltale signs of dementia. However, RPC 1.14(c) provides the following caveat: The following questions during the interview are also Information relating to the representation of a cli- helpful in every case alleging misconduct. They allow ent with diminished capacity is protected by Rule us to determine whether outside factors are causing or 1.6. When taking protective action pursuant to contributing to the questionable behavior or judgment: paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the 1. Have you been diagnosed with any medical issues client, but only to the extent reasonably necessary over the past five years? If so, what are they, when to protect the client’s interests. were you treated and by whom? Therefore, lawyers dealing with a client with dementia 2. Have you been treated for any emotional or other must carefully navigate these issues to ensure they mental health issues, including addiction to drugs are protecting the client’s interests and they may not or alcohol, over the past five years? If so, what are substitute their judgment for that of the client. If it is they, when were you treated and by whom? necessary to contact a relative or request that the court 3. Are you taking any medication? appoint a guardian, the lawyer must abide by the cli- ent’s directives, until someone can make decisions for 4. Have you participated in any 12-step programs like the client. This issue is more difficult when the person Alcoholics Anonymous, Narcotics Anonymous, or with dementia is a lawyer or judge, because they, as Gamblers Anonymous? officers of the court, are entrusted with protecting
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the interests of their own clients or the litigants who a Complex World, Oxford University Press, 2009. appear before the court. 12. Vera Prosper, Ph’D, Former Director, New York State Legal Services Ini- tiative, New York State Office for the Aging. I submit that we, as a helping profession, should do our best to compassionately assist any lawyer or judge 13. Greg Olsen, Acting Director, New York State Office for the Aging. afflicted with dementia, who has had an exemplary 14. Bob Lipp, founder of Communication Masters, www.communication- masters.net. career and who has well served the legal profession, to retire with his or her reputation intact. 15. Lawrence DiGiovanna, Esq., Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP. Sadly, a few of us have even participated in guardian- 16. CPLR 1201 provides the statutory circumstances under which a guardian ship matters where the incapacitated person was a former ad litem is authorized or required in a civil action. More specifically, CPLR 1201 states, in relevant part, “[a] person shall appear by his guardian ad judge or lawyer who failed to plan. Timothy E. Casserly, litem . . . if he is an adult incapable of adequately prosecuting or defending Esq., CFP,19 shares his experience: his rights.” The procedure for the appointment of a guardian ad litem is pro- vided in CPLR 1202. I’ve worked with a number of lawyers and judges 17. CPLR 1201, 1203; see Practice Commentaries on CPLR 1203; 1234 Broad- on their estate plans, but it’s surprising how many way LLC v. Feng Chai Lin, 25 Misc. 3d 476, 483 (Civ. Ct., N.Y. Co. 2009); see, of those are in their 70s and 80s who had nothing in e.g., Mills v. Mills, 111 A.D.3d 1306, 1307 (4th Dep’t 2013); see also Stedmans place until we met. Too often, it’s the classic case of Medical Dictionary 437900 (defining mental impairment as “a disorder char- the shoemaker’s kids going barefoot as these lawyers acterized by the display of an intellectual defect, as manifested by diminished do not have a basic will, power of attorney or health cognitive, interpersonal, social, and vocational effectiveness and quantita- tively evaluated by psychological examination and assessment”). care proxy. 18. Deborah A. Scalise, Esq., is the immediate past Chair of the NYSBA CLE Hopefully, this issue of the Journal will motivate all of Committee and a member of the NYSBA Committee on Attorney Profession- us to plan for ourselves, family members and our clients alism. She has served as Vice President of the Women’s Bar Association of 20 the State of New York (WBASNY), where she also serves as the Co-Chair of and, as Joan Robert, Esq. reminds us, allow us to meet the Professional Ethics Committee. She is a Past Presi-dent of the Westchester the needs of our clients in a timely, sensitive and humane Women’s Bar Association and the White Plains Bar Association. She is the manner: former Deputy Chief Counsel to the Departmental Disciplinary Committee for the First Judicial Department. Representing a client with diminished capacity pres- 19. Timothy E. Casserly, Esq., CFP, Burke & Casserly, P.C. ents ethical and practical dilemmas for the attorney. 20. Joan Robert, Esq., Kassoff, Robert & Lerner. The ethical rules direct that as attorneys, we must maintain as normal an attorney-client relationship as possible. We must present the client’s known wishes and advocate for his/her position. However, as human beings, we may wish to act in the best interest of the client, recognizing that the client’s stated position may not be beneficial to him/her. When our client is no longer able to communicate, we must gauge the motivation and veracity of others furnishing us with information upon which we base our advice. In our practices, we must not lose sight of the fundamental ethical question: who is the client? Once we identify and remember whom we are representing, courts with the expertise and sensitivity to handle these matters should enable good outcomes to prevail. n
COURT & LITIGATION 1. Michael Miller, Esq., Law Office of Michael Miller; President Elect Nomi- 370 Lexington Ave. nee, New York State Bar Association. Suite 1101 BANKRUPTCY & DEPOSITORY 2. Robert M. Freedman, Esq. is a partner at the law firm of Schiff Harden, New York, NY 10017 LLP. In 2016, Mr. Freedman received a lifetime achievement award from NYSBA’s Elder Law Section. TRUSTS & ESTATES 212-986-7470 3. Honorable Justice H. Patrick Leis, III, Supreme Court, Suffolk County. 212-697-6091 Fax INDEMNITY & MISCELLANEOUS 4. In re Buffalino (James D.), 39 Misc. 3d 634 (N.Y. Sup. Ct., 2013).
5. Christopher C. v. Bonnie C., 40 Misc. 3d 859 (N.Y. Sup. Ct., 2013). LICENSE & PERMITS [email protected] 6. Honorable Justice Thomas P. Aliotta, Supreme Court, Richmond County, is an experienced and respected Guardianship judge. 7. MHL § 81.15 (c)(7) (McKinney 2004). 8. MHL § 81.29 (a) and (b) (McKinney 2010). 9. MHL § 81.01 (McKinney 1992). SURETY BOND SPECIALISTS 10. Harry Ballan, Dean of the Touro College Jacob D. Fuchsberg Law Center. 11. Elkhonon Goldberg, Ph’D, ABPP-CN, clinical professor of Neurology, www.LevineCompany.com NYU School of Medicine; to learn more about executive functions and their breakdown, see Elkhonon Goldberg, The New Executive Brain: Frontal Lobes in
NYSBA Journal | January 2017 | 47 BURDEN OF PROOF BY DAVID PAUL HOROWITZ David Paul Horowitz ([email protected]) is a member of Geringer, McNamara & Horowitz in New York City. He has represented parties in personal injury, professional negligence, and commercial cases for over 26 years. In addition to his litigation practice, he acts as a private arbitrator, mediator and discovery referee, and is now affiliated with JAMS. He is the author of Bender’s New York Evidence and New York Civil Disclosure (LexisNexis), as well as the most recent supplement to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches New York Practice at Columbia Law School and lectured on that topic, on behalf of the New York State Board of Bar Examiners, to candidates for the July 2016 bar exam. He serves as an expert witness and is a frequent lecturer and writer on civil practice, evidence, ethics, and alternative dispute resolution issues. He serves on the Office of Court Administration’s Civil Practice Advisory Committee, is active in a number of bar associations, and served as Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee.
“Object, Reject, . . . & Move?”
Introduction (which the parties resolved), but failed tion during trial to preclude Dr. October’s column promised a sequel to reject the expert exchange as not Silberman’s testimony was prop- to “I Gotta Guy For That.” Alas life, in being specific.” The court denied plain- erly denied as untimely. Plaintiff’s this case the Court of Appeals’ October tiff’s motion, the defendant’s expert argument at trial for precluding Dr. 20, 2016, unanimous decision in Rivera testified about the cause of death, and Silberman’s testimony was based v. Montefiore Med. Ctr.,1 upended that a verdict was returned for the plaintiff. on the lack of specificity of defen- plan. So, for now, the sequel must wait. Both sides made post-trial motions, dant’s CPLR 3101(d) statement. Readers of this column may and the trial court denied plaintiff’s The statement recited, with regard remember the last time Rivera made post-trial motion seeking, inter alia, to the causation of the decedent’s an appearance: two years ago (to the an order “striking from the record all death, that defendant’s expert day) in “You Better Object . . . Now!”2 testimony that the decedent died from would “testify as to the possible The facts then, as now, were that a sudden cardiac arrest:”3 causes of the decedent’s injuries jury returned a verdict in favor of and contributing factors . . . [and] Admission of an expert’s testimo- on the issue of proximate causa- the plaintiff for the wrongful death of ny is at the trial court’s discre- Wilbur Rodriguez, 44, who arrived at tion”; also included in its formulaic tion. The facts upon which the recitation was the assertion that Montefiore Medical Center’s ER with expert’s testimony is based must respiratory distress at 15 minutes before “the grounds for the expert’s opin- be established or “fairly inferable” ion will be said expert’s knowl- midnight, was admitted to a unit with- from the evidence, rather than out continuous patient monitoring with edge and experience . . . and [the] based on speculation or guessing. trial testimony.”5 a working diagnosis of pneumonia, and Here, plaintiff’s motion to strike died in the hospital between 4 and 4:40 defendant’s expert opinion regard- After reciting the requirements early the next morning. ing the cause of death as sudden for expert disclosure, the court stated cardiac arrest is denied as it was “upon receipt of this 3101(d) state- Rivera in the Supreme Court untimely made at the time of trial.4 ment, the only objection that plaintiff At trial, plaintiff moved to preclude voiced was that the expert’s qualifica- any testimony by defendant’s medical Rivera in the First Department tions failed to include the dates of his expert “regarding any possible causes On appeal, the First Department residency, which deficiency defendant of the decedent’s death as defendant’s affirmed: then cured. Plaintiff neither rejected expert exchange did not comply with We reject plaintiff’s challenge to the the document nor made any objection the requirements of CPLR § 3101(d), aspect of the order that declined to the lack of specificity regarding the in that, it was not specific.” At oral to strike the testimony of defen- cause of death.”6 argument, “[d]efendant opposed the dant’s expert, Dr. Marc Silberman, The court concluded: in which he asserted that the cause application as untimely because, plain- Having failed to timely object to of the decedent’s death was a sud- tiff previously objected to the expert the lack of specificity in defen- den, unexpected cardiac arrhyth- exchange as it did not contain infor- dant’s expert disclosure statement mia. Plaintiff’s in limine applica- mation about the expert’s residency regarding the cause of the dece-
48 | January 2017 | NYSBA Journal dent’s death, plaintiff was not jus- sure. Rather, the issue here was Rivera is cited for the final proposi- tified in assuming that the defense insufficiency. tion, to wit, that there was a waiver by expert’s testimony would comport The trial court’s ruling did not the defendant of an objection to the with the conclusion reached by endorse the sufficiency of the state- plaintiff’s expert exchange, in part, the autopsy report, and plaintiff ment but instead addressed the because the defendant did not object cannot now be heard to complain motion’s timeliness. The lower at the pretrial conferences conducted that defendant’s expert improp- courts were entitled to determine, in the case. erly espoused some other theory based on the facts and circum- So, under DeDona, it appears incum- of causation for which there was stances of this particular case, that bent upon counsel to now advise their 7 support in the evidence. the time to challenge the state- adversaries, at pretrial conferences ment’s content had passed because (where there is generally no record of Rivera in the Court of Appeals the basis of the objection was read- the proceedings), of the assorted short- The Court of Appeals framed, and ily apparent from the face of the comings in their case, or risk having answered, the question on appeal: disclosure statement and could waived the right to object when the The issue on this appeal is whether have been raised – and potentially evidence is ultimately offered at trial. 12 the trial court abused its discre- cured – before trial. Accordingly, In Fermas v. Ampco Sys. Parking, tion as a matter of law in denying there was no abuse of discretion as defendant sought to amend its answer as untimely plaintiff’s motion to a matter of law.9 to assert an affirmative defense that preclude the testimony of defen- plaintiff failed to use an available seat- dant’s expert on the grounds that Other Decisions belt. The trial court had initially denied 10 the CPLR 3101 (d) disclosure state- In Dedona v. DiRaimo, a First Depart- the motion on procedural grounds, but ment was deficient. We hold that ment decision following, and citing, on the second application, granted the it did not.8 the First Department decision in Rive- motion: ra, a trial court precluded the plaintiff To that end, plaintiff can claim nei- After chronicling the prior decisions, from presenting evidence, including ther surprise nor prejudice. Plain- the Court reviewed the broad discretion expert testimony, against the defen- tiff was aware of the existence of trial courts possess to supervise expert dant, based upon the defendant’s in this defense as early as it was inter- disclosure: “‘A determination regard- limine motion made after jury selection posed by codefendants in January ing whether to preclude a party from but before opening statements. 2013. Moreover, moving defen- introducing the testimony of an expert The First Department reversed, dants’ expert witness disclosure witness at trial based on the party’s reinstated plaintiff’s complaint, and clearly indicated that the expert failure to comply with 3101(d) (1) (i) is ordered a new trial: was to be “expected to testify that left to the sound discretion of the court’ The trial court improvidently exer- plaintiff failed to mitigate all inju- (citations omitted).” cised its discretion in granting the ries she did or would have suffered The Court concluded: motion and in dismissing the com- by failing to make use of the seat- Plaintiff made her motion mid-trial plaint based on the preclusion of belts available to her in the vehicle immediately prior to the expert’s evidence. Defendants’ argument in which she was traveling.” It is of testimony. Plaintiff argues that at that they had no notice of plaintiffs’ particular significance that plaintiff the time of the expert exchange, theory and were unfairly surprised made no objection in response to she had no reason to object to the is unavailing. The theory concern- this CPLR 3101 (d) exchange.13 disclosure statement because the ing vascularization of decedent’s statement gave no indication that left leg was adequately disclosed In Fermas, the trial court uses Rivera defendant would challenge plain- in plaintiff’s original and supple- to impose a burden on the plaintiff to tiff’s theory of decedent’s cause mental bills of particulars. Further, object to defendant’s expert disclosure of death. Assuming defendant’s while CPLR 3101(d)(1)(i) does not because it advanced a defense theory disclosure was deficient, such defi- require a party to retain an expert not asserted in the defendant’s answer. ciency was readily apparent; the at any particular time, here plain- Plaintiff is penalized for not objecting disclosure identified “causation” tiff served the CPLR 3101(d) expert to an expert disclosure for what is, in as a subject matter but did not disclosure notice about eight essence, a pleading defect. provide any indication of a theory months before trial, which was suf- or basis for the expert’s opinion. ficient notice. Furthermore, during What to Do Now? This is not analogous to a situation that period, defense counsel were I volunteered the following advice in in which a party’s disclosure was present at several pretrial confer- my 2015 column on Rivera: misleading or the trial testimony ences and raised no objections to Upon receipt, object to the expert was inconsistent with the disclo- the expert disclosure, nor did they exchange (making certain to reject the notice.11
NYSBA Journal | January 2017 | 49 object to each and every potential on fire (more likely to happen to me 3. Rivera v. Montefiore Med. Ctr., 2012 N.Y. Slip defect and/or inadequacy in the since I go to court regularly), we should Op. 33671(U), *1 (Sup. Ct., Bronx Co. 2012). exchange)?; “stop, drop, and roll.” When each of you 4. Id. at *4 (citations omitted). Upon receipt, reject the expert arrives home tonight, you can excitedly 5. 123 A.D.3d 424, 425 (1st Dep’t 2014). exchange?; and tell family and friends that, in the event 6. Id. at 426. they are served with an inadequate 7. Id. Upon receipt, make a motion in expert response, they should “object, 8. Rivera, 2016 N.Y. Slip Op. 06854, *1–2. limine?14 reject, and (maybe) move.” 9. Id. at *3. Two years on, I offer the same Next month, the saga of the “guy” 10. 137 A.D.3d 548 (1st Dep’t 2016). advice, with the understanding that continues, unless another seismic legal 11. Id. at *1–2 (citations omitted). the motion is, for now, a strategic (as opposed to political) event occurs. 12. 2016 N.Y. Slip Op. 32096(U) (Sup. Ct., Queens option to be considered by counsel on Until then, I hope 2017 is off to a good Co. 2016). a case–by-case basis. start and remember, though it doesn’t 13. Id. at *5 (citing Rivera, 123 A.D.3d 424 (1st feel like it today, as you read this Dep’t 2014)). Conclusion column the days are already getting 14. Such a motion would, since it pertains to dis- When my sons were in elementary longer. n closure, require a good-faith affidavit pursuant to 22 N.Y.C.R.R. § 202.7. school their classes were visited by the local fire department and each came 1. 2016 N.Y. Slip Op. 06854 (2016). home excitedly instructing my wife and 2. David Paul Horowitz, “You Better Object . . . Now!” N.Y. St. B.J. (January 2015) p. 18. I that, in the event we found ourselves
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50 | January 2017 | NYSBA Journal NYSBA SUSTAINING MEMBERS
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Stewart D. Aaron Alison Arden Besunder Michael D. Chechanover Richard A. Della Pietra Steven R. Finkelstein Judith Aarons J. Truman Bidwell, Jr. Nancy Chemtob Steven Della Rocca Gerard Fishberg Mario J. Abate Peter Bienstock Yung-Yi Chen Renate M. Dendorfer-Ditges Cheryl Smith Fisher Barry R. Abbott Thomas C. Bivona Lawrence David Chesler Edward K. Dennehy Dr. Petra Fist Samuel F. Abernethy H. Lee Blumberg Kenny Chin Fatos Dervishi Alan P. Fitzpatrick Aaron N. Abraham David Mark Blumenthal Woohyoung Cho W. Robert Devine James D. Fitzpatrick Alton L. Abramowitz Paul E. Blutman Rosemary Cinquemani Ronald J. DeVito Donald J. Fleishaker Lindsay S. Adams Denice M. Bolanos Cristine Cioffi Hon. Thomas A. Dickerson Edward B. Flink Mady A. Adler Jennifer M. Boll Jerri A. Cirino Lawrence F. DiGiovanna William James Florence, Jr. Robert Jacob Adler Hugo K. Bonar William F. Clair Alfred Crosby DiGirolomo, Ellen L. Flowers Khwaja M. Ahmad Annamarie Bondi-Stoddard Alan W. Clark Jr. Erin Kathleen Flynn Arthur L. Aidala Wilhelm G. Boner Linda Jane Clark Louis P. DiLorenzo Blaine V. Fogg Mark H. Alcott Adrienne Danielle Bonilla Robert D. Clark Joseph Dinardo Lucille A. Fontana Virginia L. Allan Christopher J. Bonner Sheilagh M. Clarke David M. Dince Alexander D. Forger Eleanor B. Alter Jeanne Bonney Dr. Rudolf F. Coelle John K. Diviney Patrick Formato Andrew B. Amerling R. Daniel Bordoni John P. Coffey Gital Dodelson Paul S. Forster Mark L. Amsterdam Robert L. Boreanaz Peter V. Coffey Donald C. Doerr Emily F. Franchina Marvin Anderman Mitchell F. Borger Stephen R. Coffey Rico V. Domingo Paul M. Frank Jeffrey K. Anderson Hon. Kathleen M. Boyd David Louis Cohen Antonia M. Donohue David R. Franklin Gregory K. Arenson Hon. Seymour Boyers Edmund S. Cohen Sean M. Doolan John A. Frates Oliver J. Armas Bruce L. Bozeman Harriet Newman Cohen Brian F. Doran Raymond J. Freda Daniel J. Arno RoseAnn C. Branda Mitchell Y. Cohen Charles E. Dorkey, III Hon. Helen E. Freedman John D. Aspland, Jr. Katherine Diane Brandt Orin J. Cohen Maureen Dougherty Robert M. Freedman Richard N. Aswad Dianne C. Bresee J. Peter Coll, Jr. David J. Doyaga, Sr. Gary B. Freidman Frederick G. Attea Zygmunt Brett Ernest J. Collazo Yvon Dreano Andrew Michael Friedman Jack C. Auspitz Daniel E. Brick Robert Colletti William J. Dreyer Joseph N. Friedman James B. Ayers Louis T. Brindisi Thomas J. Collura Clover M. Drinkwater Richard B. Friedman Hong Oo Baak Alan J. Brody Paul R. Comeau John R. Dunne Jeffrey L. Futter Pamela M. Babson H. Bruce Bronson, Jr. Michael J. Comerford Mary Amelia Duty John Gaal Ricardo A. Baez Janiece Brown Spitzmueller Brian S. Conneely Patrick J. Dwyer Michael J. Gaffney Rosalia Baiamonte Robert E. Brown Martin E. Connor Mary Jane Eaton Glinnesa D. Gailliard Carl T. Baker Matthew C. Browndorf Terrence M. Connors Therese Connors Ebarb Catherine A. Gale Kenneth J. Balkan Robert E. Buckholz, Jr. Louis P. Contiguglia Mark J. Eberle Michael W. Galligan Ronald Balter Mary Anne Bukolt-Ryder David C. Cook Martin W. Edelman Karen L. I. Gallinari Karin J. Barkhorn William Anthony Burck Ilene S. Cooper Judith A. Eisen Vincent J. Gallo James R. Barnes Carole A. Burns Michael A. Cooper Todd Mitchell Eisenbud Jerry A. Gambino Toni Ann Christine Barone Teresa K. Burns-Sagalow Steven M. Cordero Aref El-Aref Yee-Min Gan Alyssa M. Barreiro Blair Burroughs Matthew R. Coseo Hon. Betty Weinberg Ellerin William G. Gandy Ernest T. Bartol Jeffrey D. Buss Edward C. Cosgrove Lawrence Elmen, Jr. Barry H. Garfinkel Gary Edward Bashian A. Vincent Buzard Martin John Costello Anthony J. Enea Max G. Gaujean Mona L. Baskin Philip A. Byler Michael L. Costello Denis A. Engel Dolores Gebhardt Robert C. Bata Michael H. Byowitz Edward F. Cox Dennis M. Englert Janet Thiele Geldzahler Jorge L. Batista Michael J. Byrne Roderick John Coyne Klaus Eppler Ilyse Gellar-Sternberg Ravi Batra JulieAnn Calareso Hon. Stephen G. Crane Michael Ettinger Ralph A. Gerra, Jr. Steven C. Bauman Toni Camacho Robert H. Crespi John A. Fantauzzi Sharon Stern Gerstman Edward F. Beane Paul J. Cambria, Jr. Paul J. Curtin, Jr. Angelo G. Faraci Michael E. Getnick Jeffrey H. Becker Dennis J. Campagna Hon. Melanie L. Cyganowski Alfred L. Fatale, III Neil V. Getnick William H. Behrenfeld Anthony J. Carbone Kevin R. Czinger David W. Feeney Martha E. Gifford Jonathan B. Behrins Christopher J. Carey Jaclene D’Agostino Dean John D. Feerick Joan M. Gilbride Leonard A. Bellavia Robert C. Carlsen Christopher A. D’Angelo Hon. Paul G. Feinman Harlan B. Gingold Susan L. Bender Richard E. Carmen Frank G. D’Angelo Louis E. Feldman Mary P. Giordano Howard Benjamin Zachary W. Carter Christina Ciaramella D’Elia Alfred G. Feliu Rudolph W. Giuliani Hon. Catherine M. Bennett, Eric Thomas Carver Ronald F. Daitz Alan Fell David L. Glass ALJ Donna J. Case Harvey P. Dale Timothy J. Fennell Evan M. Goldberg Jeffrey P. Bennett Moira E. Casey Gary M. Darche Hermes Fernandez Michael Max Goldberg David H. Berg June M. Castellano Willard H. DaSilva Lucas A. Ferrara Neil A. Goldberg Daniel Joseph Bergeson Jerome J. Caulfield Kianga Daverington Samuel Joseph Ferrara Charles A. Goldberger James Michael Bergin Orlando A. Cavallo, Jr. Malcolm H. Davis Wayne Fidyk A. Paul Goldblum Michelle D. Bergman Gregory T. Cerchione Francis P. Dec David A. Field Shawn D. Golden Philip M. Berkowitz Deborah J. Chadsey Francis X. Dee Robert P. Fine Ira S. Goldenberg Henry S. Berman Hon. Cheryl E. Chambers Joseph F. DeFelice Margaret J. Finerty Stuart J. Goldring Mark Arthur Berman Alec Yung-Chou Chang Deborah Deitsch-Perez Raymond L. Fink Willis J. Goldsmith Christine Beshar Mudita Chawla Alex C. Dell Fern J. Finkel Ronald B. Goodman
NYSBA Journal | January 2017 | 51 Kenneth Gordon Jonathan M. Houghton David Lashway Kaname Masuda Richard P. Neimark Marcia Z. Gordon Richard R. Howe Jaime Lathrop Richard L. Mattiaccio Joseph E. Neuhaus Mark S. Gorgos Petal Hwang Glenn Lau-Kee Christopher S. Mattingly Jacqueline N. Newman David M. Gouldin Liberatore J. Iannarone Louis M. Laurino John F. Maxwell Amanda Sue Nichols Ronnie A. Gouz Anthony R. Ianniello C. Bruce Lawrence Allan E. Mayefsky Paul B. Nolan Edward Gozigian Charles P. Inclima Bernice K. Leber Harold A. Mayerson John M. Nonna Colleen Mary Grady Souren Avetick Israelyan Richard M. Leder Judith A. Mayne Douglas Edward Nordlinger Mark Steven Granger LaMarr J. Jackson Bruce N. Lederman Maureen Anne McAndrew Karen S. Norlander David B. Grantz Joseph Jaffe Lawrence Lederman David J. McCabe James A. Notaris Taa R. Grays Seymour W. James, Jr. Regina S. Lee John T. McCann Nathan C. Nudelman Guillermo Malm Green Sharon L. Jankiewicz Matthew J. Leeds Maureen W. McCarthy Amanda H. Nussbaum William H. Green Z. Robert Jankowski Wallace Leinheardt Sharon L. McCarthy Bernard W. Nussbaum Henry M. Greenberg David Jaroslawicz Edward K. Lenci Kathryn McCary Carolyn G. Nussbaum Maurice R. Greenberg Robert J. Jenkins David Lerner Dennis R. McCoy Hon. John F. O’Donnell Ronald David Greenberg R. Kenneth Jewell Perry A. Lerner Elizabeth J. McDonald Sean R. O’Loughlin Stephen C. Greene, Sr. Martin T. Johnson Ann B. Lesk Gerald T. McDonald Timothy M. O’Mara Richard F. Griffin Robert William Johnson, III Pearl M. Lestrade-Brown Brian T. McGovern Michael S. Oberman Judith D. Grimaldi E. Stewart Jones, Jr. Marc M. Levey Bruce J. McKeegan Larisa Obolensky John H. Gross Kevin Charles Jones A. Thomas Levin Peter J. McKenna Avery Eli Okin James S. Grossman Diane Barbara Kadlec Hon. Howard A. Levine Sarah Diane McShea Victor A. Oliveri Michael J. Grygiel David Frederic Kaenzig Jerome L. Levine Norma G. Meacham Marne L. Onderdonk Gregory J. Guercio Alan E. Kahn Lance I. Levine Christopher Blake Meagher Melissa H. Orlen Hon. Frank A. Gulotta, Jr. Michele Kahn Marilyn M. Levine Gerard M. Meehan Dr. Helmut Franz Ortner Claire P. Gutekunst Yi Kang Jerome T. Levy William J. Mendrzycki Robert L. Ostertag Richard M. Gutierrez Arnold Y. Kapiloff Peter H. Levy Patricia Maria Menendez Gregory E. Ostling Elizabeth M. Haag Paul Richard Karan Brian N. Lewandowski Cambo Tomoyuki Otsuki Mark J. Hackett, Jr. Ashok Kumar Karmaker Burt A. Lewis Lawrence G. Mentz Steven A. Pagones George J. Haggerty Louis P. Karol Marc J. Lifset Ricardo A. Mestres, Jr. Anthony Robert Palermo Michel P. Haggerty Scott M. Karson Susan B. Lindenauer Diana Milanesi Frances M. Pantaleo Robert L. Haig Dr. Barbara H. Katsos Michael Loening Claire C. Miller William Parsons, Jr. John G. Hall John Katsougrakis Peter C. Lomtevas David S. Miller Ernest T. Patrikis Thomas J. Hall Robert M. Kaufman Richard B. Long Henry G. Miller Michael A. Patterson Mark S. Hamburgh Keelin Kavanagh Mark A. Longo Howard B. Miller John Paul Sarah Jo Hamilton Elena DeFio Kean Anthony J. Loscalzo Michael Miller Mark G. Pearce David B. Hamm William F. Keenan Larisa Love-Chaleff Richard J. Miller, Jr. Steven E. Pegalis James H. Hancock Matthew J. Kelly Hon. George H. Lowe Scott Douglas Miller Dr. Christodoulos G. Gretchen Harders John J. Kenney George T. Lowy Peter Milne Pelaghias Michael T. Harren Russell William Kessler Ryan J. Lucinski Martin Minkowitz Robert N. Pelier Mark T. Harrington Michael T. Kiesel Martin Richard Lueck David P. Miranda Robert M. Pennoyer Arlene Harris Kenneth Seo Kim Alisa A. Lukasiewicz Douglas A. Miro James J. Periconi Helene W. Hartig Alison King Bertil P. Lundqvist Hon. Michael M. Mohun Michael F. Perlis James M. Hartmann Henry L. King Jonathan D. Lupkin Brem Mica Moldovsky Joseph J. Perrini, III Anthony J. Harwood Donald T. Kinsella Richard A. Luthmann Lisa A. Mondschein Daniel J. Persing Annette G. Hasapidis Ralph M. Kirk Margaret Comard Lynch James C. Moore Martin Petroff Paul Michael Hassett Jed N. Kirsch Michael Lynne Rafael Avelino Morales Hon. Stacy L. Pettit Edgar H. Haug Patricia G. Kitson Desmond C.B. Lyons Angelicque M. Moreno Michael G. Pfeifer Michael J. Hausman Junho Ko Louis J. Macari Mark J. Moretti John J. Phelan, III Gerald J. Hayes James B. Kobak, Jr. Victor A. Machcinski, Jr Margreta Maria Morgulas Thomas N. Pieper James E. Hayes Eve Green Koopersmith Kathryn Grant Madigan Karen L. Morris Hon. Emily S. Pines Thomas B. Hayner Kristine M. Koren Patricia M. Magid William Thomas Morrison Bradley Marc Pinsky Warren H. Heilbronner Cheryl F. Korman Harold A. Mahony Dr. Mary Beth Quaranta Vincent F. Pitta David M. Heim Edward S. Kornreich Shalom S. Maidenbaum Morrissey Tara Anne Pleat David J. Hernandez Eric D. Koster Ellen G. Makofsky Peter J. Moschetti, Jr. Judy L. Plumley Bryan D. Hetherington Roberta Kotkin Heidi A. Malaczynski Dr. Charles Moschoudis Faye M. Polayes Adria S. Hillman Victor A. Kovner Gary B. Mandel Elissa Moskowitz Paul E. Pontiff Joy Henry Hinton Kenneth A. Krajewski Kenneth A. Manning Logan Vansen Moss Anthony N. Portera Linda B. Hirschson Stephen J. Krass Alan Mansfield Lillian M. Moy John K. Powers Jonathan L. Hochman Ronald Kreismann Denise Marangos Christopher K. Munoz Bruce J. Prager Jack S. Hoffinger Robert Kresse John Zachary Marangos Kay Crawford Murray Gregory P. Pressman Stephen D. Hoffman Hon. Rachel Kretser Michael A. Marinaccio Stephen J. Murray Robert M. Preston Jacob S. Holberg Abraham B. Krieger Linda Markowitz Kathryn I. Murtagh Peter M. Puleo C. Randolph Holladay Hon. William F. Kuntz, II Thomas J. Maroney Carolyn Marcia Myers- A. Craig Purcell P. Daniel Hollis, III Joseph G. LaCapra Paul B. Marrow Simmonds Thomas F. Purcell William J. Hooks Robinson B. Lacy Harvey S. Mars Gary P. Naftalis Corey B. Rabin David Stephen Hope Jagat Paul Lall Scott Allan Martin Robbi Dawn Nagel Rory J. Radding Martin M. Hopwood, Jr. George E. LaMarche, III Hon. Christine P. Martindale Domenick Napoletano John Thomas Rafter Hon. James F. Horan, ALJ Stephen B. Land Michael R. Martone William Nazal Raun J. Rasmussen, Jr. John R. Horan Robert D. Lang Hon. Vincent J. Martorana Susan R. Necheles Susan P. Read Michael J. Horvitz William Mark Lanier John S. Marwell Martin S. Needelman Harry M. Reasoner
52 | January 2017 | NYSBA Journal Margaret Z. Reed Michael L. Schler Jeong-Ho Sun David A. Tyler Robert Andrew Wild Christopher McLeod Reekie Sanford J. Schlesinger Michael R. Suprunowicz Sydney E. Unger Michelle H. Wildgrube Richard Reich Alex Schmitt Robert P. Sweeney Laurie A. Vahey Steven Wimpfheimer James E. Reid Robert C. Schneider Kathleen Marie Sweet Thomas P. Valet James W. Winslow Elizabeth L. Reilly Ira A. Schochet Douglas T. Tabachnik Tino Van Den Heuvel G. Robert Witmer, Jr. Hon. Vincent J. Reilly, Jr. Robert T. Schofield, IV Margaret C. Tabak Dr. Thomas O. Verhoeven Valerie Wolfman Gerarda M. Rella Michael J. Schoppmann Gary H. Tabat Anthony L. Verrelli Melanie Slaughter Wolk Jeff Reynolds William H. Schrag David J. Taffany Justin L. Vigdor Hon. Paul L. Wollman Sharlene Sharmila Richards David M. Schraver Robert D. Taisey John Vito Vincenti Hon. Geoffrey D.S. Wright Ambrose M. Richardson, III Max F. Schutzman Lewis C. Taishoff Gerard Virga Philip B. Wright M. Catherine Richardson A. Joseph Scott, III John E. Tavss Joseph Vona Gerard Michael Wrynn Morghan Leia Richardson Hon. Frank R. Seddio Marc D. Taylor Maria T. Vullo Angela Shing Yan Yeung David E. Richman Thomas F. Segalla Zenith T. Taylor Lauren J. Wachtler Pauline Yeung-Ha Michelle F. Rider Raymond H. Seitz Michael F. Teitler Dr. Otto Waechter Oliver C. Young George E. Riedel, Jr. Pia Monica Sen David H. Tennant David Matthew Waks Stephen P. Younger Kieth I. Rieger David Edward Seubert Arthur N. Terranova Dr. Byron C. L. Wallace Helen Yu Michael Rikon Howard S. Shafer Jessica D. Thaler-Parker Gerard W. Wallace Steven Mark Zager Sandra Rivera Robert M. Shafer Gilles Jean Yves Thieffry Sherry Levin Wallach Matthew Jesse Zangwill Kathy Robb Rona G. Shamoon Arthur H. Thorn Richard Pender Walsh, Jr. Mark C. Zauderer Joan Lensky Robert Steven B. Shapiro Nicholas E. Tishler Victor Waters Steven L. Zelkowitz Adam L. Roberts Stephen E. Shay Elizabeth C. Tomson Ellen Stempler Weinstein James D. Zerafa George Hunter Roberts Sonya Hashim Shaykhoun Claudia O. Torrey Steven J. Weiss Jiusu Zhao Oriana Jane Robertson Kyle Patrick Sheahen Geraldine N. Tortorella Richard L. Weisz Prof. Robert M. Zinman Nathan J. Robfogel John B. Sheehan Peter Pearson Traub, Jr. Andrew L. Weitz Howard Zucker Barbara Paul Robinson Judith Treger Shelton Hon. Jonah Triebwasser Justin J. Weitz Adrian Zuckerman Prof. Nicholas Adams Mary E. Sheridan Dana L. Trier Thomas H. Welby John F. Zulack Robinson Isaac Sherman John N. Tsigakos Joseph M. Wentland Jose A. Rodriguez Jeffrey J. Sherrin Louis Tuchman Michel N. Werthenschlag List as of November 23, 2016 Patricia L. R. Rodriguez Peter J.W. Sherwin Lenore W. Tucker Vivian D. Wesson Theodore O. Rogers, Jr. Lisa Lynn Shrewsberry Manuel A. Romero Arthur E. Shulman Thomas M. Rood Michael S. Shuster NEW YORK STATE BAR ASSOCIATION James C. Roscetti William D. Siegel David B. Rosenbaum Hon. Jacqueline W. David Rosenberg Silbermann Executive Director Leonard M. Rosenberg Rebecca J. Simmons Ruth H. Rosenhaus Kenneth J. Simon The New York State Bar Association is soliciting applications for the Kathy N. Rosenthal Dean Michael A. Simons position of Executive Director, the chief administrative officer of the Lesley Rosenthal David C. Singer Association. In addition to oversight of the 125-person staff operation Mitchell J. Rotbert Georgiana James Slade Richard S. Rothberg Barton L. Slavin in Albany, New York, the Executive Director is responsible for leading, Marguerite E. Royer Deborah A. Slezak managing and executing the affairs of the Association and Seth Rubenstein Pamela M. Sloan implementing its policies to the overall benefit of the organization and Herbert Rubin Hon. George Bundy Smith its membership. The Executive Director will ensure that the daily Laurie Rubinow Hon. Martin E. Smith activities of the Association are consistent with its strategic direction. Aaron Rubinstein Richard L. Smith Nancy J. Rudolph Donald S. Snider Founded in 1876, the New York State Bar Association is the largest Michael J. Rufkahr Andrew L. Sokol voluntary state bar association in the nation. It has 74,000 members Hon. Richard N. Runes Enet Clover Somers-Dehaney from across New York, all 50 states and Washington, D.C., and 120 Betsy R. Ruslander Eugene P. Souther countries. William T. Russell, Jr. Evan J. Spelfogel Eric J. Russo Hon. Robert A. Spolzino Additional information about the New York State Bar Association is Brad R. Sacks Gerald F. Stack available on the State Bar website (www.nysba.org), as is the Dana L. Salazar Kenneth G. Standard complete job description, including requirements (www.nysba.org/ David J. Saleh Joseph Stanzione EDjob/.) Owolabi M. Salis Todd Jeremy Stearn Catherine Sammartino Jamie B.W. Stecher Indications of interest, inquiries and applications should be directed James R. Sandner Joshua Stein by email to: John E. Sands Harriette M. Steinberg Barbara Mendel Mayden Jon N. Santemma Hon. Marsha L. Steinhardt Young Mayden, LLC Charles Saperstein Robert D. Steinhaus Tzvi Saperstein Michael V. Sterlacci [email protected] Evan Sarzin Mindy H. Stern Walter A. Saurack Stephen R. Stern The New York State Bar Association Deborah A. Scalise Joel B. Strauss is an Equal Opportunity Employer. Stephanie Scarborough Deborah Jean Stropole Edmund A. Schaffzin Risa S. Sugarman Davida S. Scher Bradford J. Sullivan Dennis Bruce Schlenker Peter Sullivan
NYSBA Journal | January 2017 | 53 ATTORNEY PROFESSIONALISM FORUM
To the Forum: have also been thinking about the offer Guide2016. Unfortunately, it appears I have a new client that is a party to a to buy the practice. Here, it would kill that your client’s prior counsel did number of related actions with many three birds with one stone: I would not prepare such a plan and that you parties. My client’s prior attorney was a get the file for my client, help out the and your client are now left to unravel solo practitioner and she recently passed prior counsel’s husband, and expand the difficult ramifications from that away unexpectedly. My client relied on my practice. Would I create a conflict oversight. the prior attorney implicitly, doesn’t of interest with my client by perform- As a general matter, Rule 321(c) of have any of the voluminous files for the ing due diligence and negotiating to the N.Y. Civil Practice Law and Rules litigation, and believes that the attor- purchase the practice? What if I wasn’t (CPLR) protects parties where their ney was holding money in her escrow buying the practice, but just offering to attorney unexpectedly passes away in account pending the resolution of the assist in dissolving the practice? that it prohibits further proceedings litigation. I have been in communication Sincerely, against the party, “without leave of with the prior attorney’s husband, who Somewhat Conflicted the court, until thirty days after notice is attempting to wind up the law office. to appoint another attorney has been It is clear, however, that in addition to Dear Somewhat Conflicted: served upon that party either person- being completely distraught about the Your dilemma is a cautionary tale for ally or in such manner as the court loss of his wife, he is not an attorney all solo practitioners who have not directs.” However, it appears that you and doesn’t have any idea what to do. created a plan in the event that they have already been substituted as new He is so concerned that he is going to should unexpectedly pass away or counsel and your client may no longer turn over the wrong files to the wrong become disabled and unable to practice be entitled to this statutory protec- person, or turn over files without hav- law. Rule 1.3(b) of the New York State tion. While we would hope that both ing collected all of his wife’s fees, that Rules of Professional Conduct (RPC) opposing counsel and the judge on he just refuses to turn anything over. states that a “lawyer shall not neglect the matter would be sympathetic to He isn’t sure if he is going to try to sell a legal matter entrusted to the lawyer.” your client’s situation, and that you the practice or just dissolve it. It doesn’t Comment 5 to RPC 1.3 addresses the have explained your efforts to obtain seem like he will be able to resolve this ramifications of an attorney who sud- the file, we are cognizant that oppos- quickly. Meanwhile, I am having a very denly is unable to practice: “To avoid ing counsel similarly faces a diligence difficult time moving forward with my possible prejudice to client interests, burden for their clients under RPC 1.3. client’s cases without her file, and the a sole practitioner is well advised to client and remaining parties are begin- prepare a plan that designates another The Attorney Professionalism Committee ning to lose patience. competent lawyer to review client files, invites our readers to send in comments Although I am sympathetic to the notify each client of the lawyer’s death or alternate views to the responses husband’s dilemma, my client is begin- or disability, and determine whether printed below, as well as additional ning to suffer from the delays. I am there is a need for immediate protec- hypothetical fact patterns or scenarios to worried that I am not doing enough tive action.” Similarly, the American be considered for future columns. Send to convince the former attorney’s hus- Bar Association has stated that “[t]o your comments or questions to: NYSBA, band to assist me in getting the files fulfill the obligation to protect client One Elk Street, Albany, NY 12207, Attn: and turn over the escrow funds. In files and property, a lawyer should Attorney Professionalism Forum, or by our last conversation, he even asked prepare a future plan providing for the email to [email protected]. me, “Do you have any thoughts about maintenance and protection of those This column is made possible through whether I should dissolve the practice client interests in the event of the law- the efforts of the NYSBA’s Committee on or try to sell it? Would you be inter- yer’s death.” ABA Comm. on Ethics Attorney Professionalism. Fact patterns, ested in purchasing it?” When I asked and Prof’l Responsibility, Formal Op. names, characters and locations presented my client if he had fully paid the prior 92-369 (1992). The New York State in this column are fictitious, and any resem- attorney’s fees, the client told me he Bar Association (NYSBA) publishes an blance to actual events or to actual persons, thought he might owe some fees, but excellent tool to assist in creating such living or dead, is entirely coincidental. These due to the recent delay, he believed a plan entitled, NYSBA Planning Ahead columns are intended to stimulate thought that he no longer had to pay them. Guide: How to Establish an Advance Exit and discussion on the subject of attorney Is there anything I can do to encour- Plan to Protect Your Clients’ Interest in professionalism. The views expressed are age the prior attorney’s unrepresented the Event of Your Disability, Retirement those of the authors, and not those of the husband to turn over the file and or Death. This free guide is available Attorney Professionalism Committee or escrow funds? Should I be concerned online and is highly recommended the NYSBA. They are not official opinions that I am trying to get the file even for any solo practitioner or practice on ethical or professional matters, nor though the prior attorney may not that has not prepared an exit plan. should they be cited as such. have been fully paid by my client? I See www.nysba.org/PlanningAhead-
54 | January 2017 | NYSBA Journal As we read your question, you are Plan to Protect Your Clients’ Interests in escrow accounts where the sole signa- trying to obtain your client’s files and the Event of Your Disability, Retirement or tory attorney on the escrow account escrowed funds in an expedited man- Death (2015), www.nysba.org/Plannin- passes away. It requires an application ner from the deceased lawyer’s hus- gAheadGuide2016, at 7. The guide also to the Supreme Court of the State of band, a non-lawyer and unrepresented states that if the “executor [of the solo New York for an order designating party, and there is a reasonable pos- practice] is not an attorney, it is impor- a successor signatory for the escrow sibility that your client has conflicting tant that he or she avoid inappropriate account who is a member of the bar interests with the deceased lawyer’s access to client files and information and admitted to practice in New York. estate due to your client’s intent to and rely instead on an attorney or See RPC 1.15(g)(1). This application contest legal fees owed to the estate. office staff to attend to these matters.” may be made by, among others, a As an initial matter, we note that Id. at 9. These risks may be avoided if legal representative of the deceased RPC 4.3 governs your communication the husband were to retain counsel to lawyer’s estate or any person who has with the former attorney’s husband review the files to make sure that only a beneficial interest in the funds in because he is unrepresented. See RPC the appropriate files are turned over. the escrow account, such as your cli- 4.3. It provides that an attorney “shall This analysis applies even if you ent. See RPC 1.15(g)(2). The New York not give legal advice to an unrepre- are engaged in discussions to poten- Supreme Court can then designate a sented person other than the advice tially buy the deceased attorney’s prac- successor signatory and direct the dis- to secure counsel if the lawyer knows tice. Indeed, RPC 1.17(b) specifically bursement of escrowed funds where or reasonably should know that the restricts the information that a seller appropriate. See RPC 1.15(g)(3). interests of such person are or have a may disclose to prospective buyers In light of the foregoing ethical con- reasonable possibility of being in con- providing that only certain informa- siderations, if you find that the husband flict with the interests of the client.” tion about clients may be disclosed, is not inclined to retain an attorney for Id. Moreover, RPC 4.3 prohibits you such as the identity of the clients, the the estate, or is not acting expeditiously from stating, or even implying, to the status and general nature of the mat- to hire one, your best option here may prior lawyer’s husband that you are ters, material available in public court be to move before the appropriate court disinterested in his situation and, if files, and the financial terms and pay- for an order directing that the files be you should reasonably know that the ment status of the clients’ accounts. See turned over and appointing a successor husband misunderstands your role in RPC 1.17(b)(2). Absent the informed signatory to the escrow bank accounts the matter, you must take reasonable consent of the client, the seller is pro- pursuant to the procedure set forth in efforts to correct the misunderstand- hibited from revealing confidential RPC 1.15(g). See In re Hickey, 142 A.D.3d ing. See id. Therefore, it goes without information or information that would 753, 754 (3d Dep’t 2016) (application saying that you should not assist him cause a violation of the attorney-cli- made by Tompkins County Bar Asso- in dissolving the practice or other- ent privilege under RPC 1.6. See RPC ciation for the appointment of one or wise. Indeed, if you have not done 1.17(b)(1), (5). While RPC 1.17 does more attorneys as custodian of the files so already, you should make clear to not explicitly state that a non-lawyer is of a law office of a solo practitioner the deceased lawyer’s husband that prohibited from providing prospective who died without a plan for his practice you cannot provide him with advice buyers with information as to indi- after his death and for the appointment concerning his wife’s estate or law vidual clients, an attorney is clearly of a successor signatory to decedent’s practice, other than to recommend to needed to review the files to assess law office and escrow bank accounts him that he hire counsel immediately which materials are confidential and under RPC 1.15(g); granting bar asso- to advise him on the various issues he protected by attorney-client privilege. ciation’s motion to become a limited is confronting as a result of his wife’s The husband’s concern about releas- custodian of the law office files, but death. See id. ing the funds held in the practice’s denying the motion for appointment With respect to the husband’s refus- escrow account is similarly a legitimate of a successor signatory on the escrow al to turn over the files, we note that one. As a non-lawyer, the husband is account, without prejudice, because the while the files belong to the client and prohibited from being an authorized motion failed to comply with procedure the delays caused by his refusal may signatory to the escrow account. See set forth in RPC 1.15(g)(2).) A motion be problematic, the husband’s posi- RPC 1.15(e) (“Only a lawyer admitted would circumvent any conflicts that tion is not entirely unreasonable. The to practice law in New York State shall may arise from any direct communica- NYSBA Planning Ahead Guide states be an authorized signatory of a special tions with the husband, and may also that “[c]are should be taken to safe- account.”); NYSBA Comm. on Prof’l ultimately encourage the husband to guard against improper access to client Ethics, Op. 693 (1997) (“[I]t is clear retain an attorney to review the files files and information by unauthor- that only a lawyer may control the and make determinations as to which ized persons, e.g., non-attorney fam- lawyer’s client escrow account and be files should be turned over. Even if the ily members.” NYSBA Planning Ahead a signatory of it”). RPC 1.15(g) identi- husband chooses not to retain counsel Guide: How to Establish an Advance Exit fies the procedure regarding control of once you have filed your motion and
NYSBA Journal | January 2017 | 55 proceeds pro se, at that point, a judge is sonal representative of a deceased law- New York Rules of Professional Conduct likely to appoint a custodian of the law yer “may sell a law practice, including Annotated, at 1424 (“The drafters [of firm’s files and successor signatory to goodwill, to one or more lawyers or law the RPC] may have believed that there the attorney’s escrow account in order firms, who may purchase the practice.” would be too great a risk that a widow, to protect the deceased lawyer’s clients’ RPC 1.17(a). According to Professor Roy child, or relative of a deceased lawyer funds. Simon’s annotation on RPC 1.17(a), this would seek to influence the handling The decision to make such a section “will not come into play unless of a particular pending matter in order motion and have a successor signatory a court appoints a legal representative” to increase or expedite the payment appointed is not without risks to your for the deceased lawyer. Roy Simon, of the deceased lawyer’s share.”). You client. If an attorney is appointed by the Simon’s New York Rules of Professional may be able to avoid the conflict by court as a successor signatory, the out- Conduct Annotated, at 983 (2016 ed.). resolving the file, escrow, and attorney standing legal fees issue is likely to be Moreover, the rule “requires that the fee issues to your client’s satisfaction brought to the forefront since the suc- seller’s entire practice be sold” and that before considering the sale offer and cessor signatory will likely review the “[t]he buyers are required to undertake then obtaining the informed consent of file, and any outstanding charged fees, all client matters in the practice subject your current client in writing (see RPC before releasing any escrowed funds or to client consent.” RPC 1.17 Comment 1.7(b, d)). your client’s files for that matter. Even 6. The purpose of this rule is to protect The unexpected death or disabil- though you may have replaced the the clients whose matters are less lucra- ity of an attorney will be devastating former attorney as counsel of record tive and might have a hard time find- to family, coworkers, colleagues, and in the litigation, the estate may claim ing other counsel. See id. Accordingly, clients on a personal level and creates a retaining lien and retain the file until unless a court has already appointed numerous issues particularly where the estate has been paid. See RPC 1.8(i) the husband as the legal representative there is no plan in place providing for (1) (a lawyer may “acquire a lien autho- for his wife’s estate, he may not even be the continuity of the law practice and rized by law to secure the lawyer’s fee able to sell the practice at this point and maintenance and protection of client or expenses”); see, e.g., Roe v. Roe, 117 he certainly cannot sell off certain cases. files and interests. The designation A.D.3d 1217, 1218–19 (3d Dep’t 2014) But even if a legal representative has of an another attorney to manage or (“A retaining lien . . . permits the dis- been appointed for the estate, and that dissolve a solo practice in the event of charged attorney to retain the contents legal representative approaches you death or disability, with basic written of the client’s file until such time as the about a potential sale offer, a conflict instructions and authorizations for the attorney has been paid or ‘the client of interest may exist here with your designated attorney, should be con- has otherwise posted adequate secu- current client, which may prevent you sidered a bare minimum for all solo rity ensuring [the] payment [there] from purchasing the practice unless practitioners. In other words, it is wise of’”) (internal citation omitted); Sec. certain conditions are met. Specifically, to plan ahead for the benefit of your Credit Sys., Inc. v. Perfetto, 242 A.D.2d RPC 1.7(a)(1) prohibits representation family and clients. For substituting 871, 871 (4th Dep’t 1997) (“Plaintiff of a client if a reasonable lawyer would counsel, your best option to retrieve submitted no proof that defendant was conclude that “the representation will your client’s files and funds is to rec- discharged for cause. Thus, defendant involve the lawyer in representing dif- ommend to the unrepresented party was entitled to reimbursement for his ferent interests.” RPC 1.7(a)(1). Com- that he retain counsel immediately disbursements before returning the ment 10 to RPC 1.7 notes that, “[t]he and to communicate with the attorney files to the client.”). In any event, this lawyer’s own financial, property, busi- assuming responsibility for the client may nevertheless be the best option to ness or other personal interest should files of the deceased lawyer. Alterna- get what you need. not be permitted to have an adverse tively, you should make a motion to With respect to your interest in effect on representation of a client.” Id. the appropriate court seeking an order potentially purchasing the deceased If you are seeking to have the seller turn directing that the files and escrowed lawyer’s practice, we see two issues: (1) over litigation materials and escrowed funds be turned over to you. the husband may not be in a position at funds for your client at the same time Sincerely, this time to make decisions regarding you are negotiating the purchase price The Forum by the sale of the practice unless he has of a solo practice for your personal ben- Vincent J. Syracuse, Esq. been appointed as a legal representa- efit, your client’s needs could become a ([email protected]) and tive of the deceased lawyer’s estate; source of leverage in the sale negotia- Maryann C. Stallone, Esq. and (2) you should know that you will tion thereby creating a significant con- ([email protected]) and not be able to pick and choose which flict of interest between you and your Carl F. Regelmann, Esq. cases you want and do not want to take client. Professor Simon examines a simi- ([email protected]) over from the practice. The estate’s sale lar risk in his discussion of payments to Tannenbaum Helpern Syracus of the law practice is controlled by non-lawyers after an attorney’s death Hirschtritt LLP RPC 1.17, and provides that the per- under RPC 5.4(a)(2). See Simon, Simon’s
56 | January 2017 | NYSBA Journal BECOMING A LAWYER BY LUKAS M. HOROWITZ Lukas M. Horowitz, Albany Law School Class of 2019, graduated from Hobart William Smith in 2014 with a B.A. in history and a minor in political science and Russian area studies. Following graduation, he worked for two years as a legal assistant at Gibson, McAskill & Crosby, LLP, in Buf- falo, New York, and with the New York Academy of Trial Lawyers hosting CLE programs. Lukas can be reached at [email protected].
Contracts, Torts, and Property, Oh My!
hat a semester it has been. will enjoy the long holiday break from I have been thinking quite a bit Midterms, objective memos, the library. lately about how I have changed in the Wunhealthy quantities of cof- As I gear up for what I expect will last three months, and ask myself from fee, a presidential election, and, in the be a difficult finals period, I cannot time to time: What is the most impor- next two weeks, finals. The thought help but notice that I am quite the dif- tant take-away from my first semester of finals brings to mind a line from ferent 1L than I was three short months at law school? Surprisingly, it sounds one of my favorite childhood movies, ago. While I am by no means proficient more physical than mental. Put simply, “The Wizard of Oz.” In the words of in the language of law, I have acquired it is that I can work in a way I did not the Cowardly Lion, “Talk me out of a few key phrases. My uncle Brian think possible in late August. Did I it!” Feeling a bit like the Andrea Gail in once told me the most important thing ever think that I could spend 60 hours “The Perfect Storm,” I remind myself to know in another language is to be a week working? Never! Read hun- that all storms pass, and with every able to ask, “Where is the bathroom?” dreds of pages a week, and describe it passing storm comes a new day. Within the language of law, I am con- as, “Oh yeah, homework?” Impossible! Finals came so quickly, the first fident that I can, at the very least, I am actually capable of far more than I sign being the notification that the navigate to the bathroom. The only gave myself credit for. library, my home away from home, thing different about the language of So the rewards of choosing to attend was extending its already generous law is that the answer will probably be law school, and pursue a career in law, hours. I have never spent so much time something along the line of “There are have made up for the sleep depriva- in a single place, and I know every ceil- several possible bathrooms, and some tion, caffeine-heavy diet, and constant ing tile above my study carrel. While of them are correct, however, one is the intestinal distress. Things just seem I joke about it being a second home, I most correct.” Continued on Page 60
What are our ethical obligations to Does the firm have an obligation to QUESTION FOR THE retain and preserve client files after notify our clients before destroying the NEXT ATTORNEY the matter has concluded? After a files? One of our partners destroyed PROFESSIONALISM FORUM litigation has been resolved, either his copies of a client’s transaction- through a settlement or judgment, al documents 30 days after the deal I am the managing partner in a must we continue to maintain the cli- closed. The client called a year after 50-plus attorney firm. We are in the ent’s files, and if so, for how long? Are that deal closed asking for the files and process of re-evaluating our document the rules the same for transactional has threatened to sue the firm because retention policies for closed litigation matters? How long after a transaction those files were destroyed. The part- and transactional files. While some has closed or been completed before ner never contacted the client to tell attorneys at my firm retain their files we can destroy the client files for that him that he was disposing of the files. indefinitely, others destroy their client representation? However, our engagement letter with files 30 days after the representation has I am also concerned about elec- that client expressly provides that we concluded. We would like to develop tronic files and emails, since I recently can dispose of the client’s files upon a firm policy, not only for consistency learned from one of my partners that the conclusion of the engagement. We sake, but primarily to reduce the costs he routinely deletes all emails after understood that to be permissible but associated with the mounting volume of reading them and does not keep cop- would appreciate your guidance. documents being stored in our records ies of “sent” emails. Do lawyers have Sincerely, department, off-site and on our servers. an obligation to keep emails? John Q. Manager
NYSBA Journal | January 2017 | 57 The Legal Writer express terms of a governing instru- sum of $50,000 to my friend John D. Continued from Page 64 ment. . . .” Thus, it’s possible to draft Rockefeller, founder of Standard Oil, they create to realize the testator’s a will making a testamentary gift to a if he survives me. If he does not, then intent.15 former spouse if that’s the testator’s I give make this gift to his wife, Laura, This is no easy task. Will draft- desire. The potential for litigation on if she survives me.” Create a reciprocal ing requires attention to detail, dif- this issue heightens the importance of bequest to Laura first and then contin- ficult and sensitive question asking, drafting clearly, precisely, and specifi- gently to John. So drafted, the bequests a thorough understanding of many cally. are clear, independent, and not subject EPTL and SCPA provisions, as well as, Divorce or separation also has the to construction.24 quite often, banking, real-property, tax, effect of revoking a nomination of a and business corporation, LLC, and spouse as executor or trustee.19 This Identifying the Property and the partnership laws. The extraordinary revocation, however, doesn’t apply to Bequest number of reported and unreported the spouse’s family members.20 It’s An area ripe with pitfalls concerns decisions construing will terms and important for the estate-planning bequests of tangible personal property. declaring parties’ rights shows what It’s customary to draft will clauses giv- happens when a will is unclear. ing specific items of the testator’s tan- An area ripe with gible personal property to particular Identifying Beneficiaries pitfalls concerns persons. For example, a testator might Perhaps most fundamental to will clar- make a specific bequest as follows: ity is accurately and completely iden- bequests of tangible “I give and bequeath my collection tifying the intended beneficiaries. Full personal property. of vintage Libby glassware, regard- names, including middle names or less of what design, pattern or condi- initials, and relationship to the testa- tion, wherever located, to Edward J. tor are essential. If a name is common attorney to discuss what the testa- McLaughlin, if he survives me.” Clear or if more than one person in a fam- tor’s wishes are concerning the in-laws enough, but many cases demonstrate ily shares a name, it’s appropriate to in the event of a divorce so that the pitfalls for the unwary. include the address of the beneficiary will can be drafted to contemplate In In re Estate of Phillips, the dece- when the will is drafted. what happens to appointments of in- dent owned a house on a small lot Another area of importance in iden- law fiduciaries upon divorce. In In re and 88 acres of farmland adjacent to tifying beneficiaries is to name chari- Lewis, the Court of Appeals in dicta the lot the house was on. His will table organizations. Charities might agreed with Surrogate’s Court that gave his “house and the plot of land have similar names. Charities may even though the decedent divorced her appurtenant thereto” to his girlfriend have multiple offices and divisions, or husband in 2007, her nomination of her and the residuary to his daughters. The be located in more than one country. father-in-law in a 1996 document pur- Surrogate found that the preresiduary Drafting clearly which branch of a ported to be her last will and testament language unambiguously meant the charity the testator wishes to benefit was not revoked by the divorce.21 This house, the lot, and the farmland. On is important to avoid litigation among might not necessarily be a clarity issue. appeal, the Appellate Division ruled charities or between divisions of the Nevertheless, if the will had provided that it was impermissible to assume same charity.16 for the revocation of the appointment that the decedent knew what “appur- of the father-in-law upon divorce, the tenant” meant and remitted the case Revocatory Effect of Divorce Lewis case might never have arisen.22 to the Surrogate to consider extrinsic It’s also important to identify a spouse evidence.25 by name. This is so especially when Identifying Who Gets What Once the specific bequests of gifts or powers of appointment are Bequests must be written clearly.23 “things” are drafted, or if there’re no made to prior spouses or to avoid any Consider the following bequest: “I give specific bequests, a clause giving the question of which spouse the testator the sum of $50,000 to my friend John testator’s tangible personal property is desires to be buried or interred with. D. Rockefeller and his wife, Laura.” typical. It might read like this: When it comes to anticipating divorce, Does that mean John gets $50,000 and I give my tangible personal prop- EPTL § 5-1.4(a) provides that divorce Laura gets $50,000? Do they share the erty including without limitation, or annulment has the effect of revok- $50,000? Who gets the $50,000 if John wearing apparel, personal effects, ing any testamentary gifts to a spouse and Laura don’t survive the testator? jewelry, furniture, furnishings, pic- 17 named in a will. EPTL § 5-1.4(a) is Do they both have to survive? Instead, tures, paintings, and other objects one of the EPTL sections that contains assuming that the testator wants to of art, silver, china, glassware, and a set of words to opt out of the stat- give $50,000 each to John and Laura, other household effects, books, 18 ute. In this case, the words in EPTL § it would be best to draft separate and automobiles to my children 5-1.4(a) are “Except as provided by the bequests for each of them: “I give the
58 | January 2017 | NYSBA Journal 5. New York is a solemn-probate jurisdiction. The who survive me, to be divided controls. The legislature introduced person or bank named in a will is the nominated among them in substantially equal New York’s version of RUFADAA this executor who’ll become the executor only upon the shares as they may agree. To the year. On September 29, 2016, Governor court’s issuing a decree admitting the will to pro- bate and directing that letters testamentary issue to 30 extent my children do not agree, Cuomo signed the bill into law. It the executor. See Surrogate’s Court Procedure Act my executor shall make a determi- took effect immediately. (SCPA) §§ 1414(1), 1408(1) & 103(20). nation how to distribute or to sell 6. An executor is a natural person who’s eligible the property and my executor’s Conclusion to receive letters as a fiduciary, SCPA § 707, or a financial institution authorized to act as a fidu- decision is final, absolute and unre- The topics in this column are but a ciary, Banking Law (NYBL) §§ 100(4), 100-a(1), 131 viewable by any person interested few examples noting the importance & 201-b; SCPA § 103(20). or court of law. of clear will drafting. The Legal Writer 7. SCPA § 103(21). Seems clear enough, but in In re encourages readers to consult one of 8. See Meinhard v. Salmon, 249 N.Y. 458, 464, Estate of Rothschild, the court found that the several excellent treatises on New 164 N.E. 545, 546 (1928) (“A trustee is held to something stricter than the morals of the market a collection of stamps and coins worth York will drafting and estate planning place. Not honesty alone, but the punctilio of an millions of dollars wasn’t part of the before drafting a will. n honor the most sensitive, is then the standard of bequest of tangible personal property behavior.”); cf. In re Estate of Rothko, 43 N.Y.2d 305, 320, 372 N.E.2d 291, 296–97, 401 N.Y.S.2d 449, but rather investment property that 455 (1977) (applying Meinhard standard to execu- passed to the remainder beneficiary, Gerald Lebovits ([email protected]), an act- tors). 26 which was a charity. This was so ing Supreme Court justice in Manhattan, is an 9. Michael E. O’Connor Estate Planning and Will despite the words “without limitation” adjunct professor of law at Columbia, Fordham, Drafting § 4.0, at 4-3. (N.Y. St. Bar Ass’n 2015). in the will.27 and NYU. For their research, he thanks judicial 10. Estate planning often involves will or testa- A contrary result was reached in In interns Evelyn Lederman (Miami) and Herbie mentary substitutes, among which the most promi- nent is the revocable living trust. Jointly owned 28 re Estate of Faggen, in which the court Rosen (Fordham) and former interns Ian W. assets that pass by right of survivorship and found that a coin and medallion col- MacLean, Esq. (New York Law School and NYU), contractual agreements with designated benefi- lection was part of the specific bequest and William T. Shepard, Esq. (New York Law ciaries such as IRAs, 401k, pension and deferred- School). compensation plans, annuities, and life insurance of tangible personal property because are almost generally not “probate assets” unless that bequest contained the words “of there’s no designated beneficiary or the estate is every kind” and, the court reasoned, 1. A testator, most usually the client, is the liv- named as the beneficiary. Any further discussion of these topics exceeds the scope of this column. the testator clearly favored his spouse ing person who makes an oral declaration or puts in writing and declares the document to be the 11. See, e.g., In re Manufacturers & Traders Trust, over the remainder beneficiary. last will and testament. Once the testator dies, the 42 A.D.3d 936, 937, 839 N.Y.S.2d 642, 643 (4th testator is called the decedent. Dep’t 2007); 11 Hershon et al., supra note 3, at §§ Digital Assets and RUFADAA 2. Estates, Powers & Trusts Law (EPTL) § 187.01[2][a] & [4][a]-[b]. Perhaps one of the newest areas war- 1-2.19(a). 12. E.g., In re Estate of Cord, 58 N.Y.2d 539, 544- 45, 449 N.E.2d 402, 404–05, 462 N.Y.S.2d 622, 625 ranting clarity in drafting is accessing 3. See Surrogate’s Court Procedure Act (SCPA) § 1420(1-5). For some cases and an article on this (1983); 11 Hershon et al., supra note 3, at § 187.01[5] 29 and controlling digital assets. Noth- topic, see In re Estate of Bieley, 91 N.Y.2d 520, 522, [a]. ing is new about disputes between 695 N.E.2d 1119, 1120, 673 N.Y.S.2d 38, 39 (1998); 13. See EPTL § 1-2.19(a). In re Estate of Sponholz, N.Y.L.J., June 16, 2014, at executors and the service providers 14. E.g., id. § 5-1.4(a) (“Except as provided by the 17, col. 3 (Sur. Ct. Kings Cnty); In re Estate of Phil- express terms of [the will],” a divorce, judicial sep- who act as gatekeepers and custodians lips, 101 A.D.3d 1706, 957 N.Y.S.2d 778 (4th Dep’t aration, or annulment revokes bequests in the will of digital assets and accounts over who 2012); In re Estate of Gourary, 34 Misc. 3d 486, 932 to the former spouse, powers of appointment to N.Y.S.2d 881 (Sur. Ct. N.Y. Cnty 2011); In re Estate of may access digital assets. The main the former spouse and nominations of the former Faggen, N.Y.L.J., Mar. 3, 2010, at 33, col. 3 (Sur. Ct. spouse to serve in any fiduciary or representative area of contention has been whether N.Y. Cnty); In re Estate of Pease, 50 A.D.3d 132, 850 capacity); SCPA § 806 (whenever an executor or the Terms of Service (TOS) agreement N.Y.S.2d 312 (4th Dep’t 2008); In re Estate of Richard, testamentary trustee is appointed “who is required N.Y.L.J., July 7, 2003, at 20, col. 1 (noting that the or a decedent’s will controls who may to hold, manage or invest real or personal property goal of every construction proceeding is to “ascer- for the benefit of another, he shall unless the will have access to digital-asset accounts. tain [the] decedent’s intent in order that it may provides otherwise, execute and file a bond”); After much negotiation with service be effectuated”); 11 Linda B. Hershon, Andrew L. EPTL § 11-1.2(b) (“Unless otherwise expressly pro- Martin, James D. Pagones, Eugene E. Peckham, providers, many states have adopted vided by a will under which a disposition is made C. Raymond Radigan & Joshua S. Rubenstein, to or for the benefit of the surviving spouse. . . .”); the Revised Uniform Fiduciary Access Warren’s Heaton on Surrogate’s Court Practice § EPTL § 2-1.8(c) (“Unless otherwise provided in a to Digital Assets Act (RUFADAA). It 187.01[4][a]-[b] (7th ed. 2016); Mary E. Mongioi. & will or non-testamentary trust … (1) the [federal Stephanie M. Alberts, Draft Once, Proofread Twice: provides a three-tiered approach: (1) and state estate] tax shall be apportioned among Take Extreme Care in Formulating Personal Property the persons benefited in the proportion that the Directions given in an online tool on Bequests, N.Y.L.J., Jan. 30, 2012, at S1. the Web site of the service-provider value of the property of interest received by each 4. See SCPA §§ 2205 & 2206; In re Fabbri’s Will, such person benefited bears to the total value of controls; (2) if none, or if no tool is 2 N.Y.2d 236, 238–39, 140 N.E.2d 269, 270, 159, the property and interest received by all persons available, then directions in the user’s N.Y.S.2d 184, 186 (1957) (determining how prin- benefited. . . .”). cipal should be divided); In re Estate of Chernik, 15. O’Connor, supra note 9, at § 4.0, at 4-3. will or other document (e.g., will or N.Y.L.J., Jan. 22, 2015, at 31, col. 3 (Sur. Ct. Suffolk power of attorney) prevails; (3) absent Cnty) (construing tax clause); Faggen, N.Y.L.J, Mar. 16. E.g., In re Estate of Scale, 38 A.D.3d 983, 985–87, either an online tool or the decedent’s 3, 2010, at 33, col. 3 (accounting proceeding and 830 N.Y.S.2d 618, 620–22 (3d Dep’t 2007) (finding tangible personal property). written direction, the TOS agreement Continued on Page 60
NYSBA Journal | January 2017 | 59 The Legal Writer demonstrative bequests (“I direct that my gavel Becoming a Lawyer Continued from Page 59 collection be sold and the proceeds I give to my Continued from Page 57 sister, Agnes.”); and bequests of specific stock. For that testator made a general bequest of cash to the a thorough discussion of this topic, see O’Connor, less daunting now. Will I stress out Audubon Society of New York State but that two supra note 9, at Chap. 4. over finals? Absolutely. Will I be able so-named societies were doing business in the New York). 24. See, e.g., In re Estate of Levy, N.Y.L.J., Dec. 18, to control that stress and methodi- 2009, at 34, col. 3 (Sur. Ct. N.Y. Cnty) (determining, cally move through my exams? I’ll 17. EPTL § 5-1.4(a). in a trust that directed the trustee to pay the prin- tell you in the next column. 18. Id. cipal to the then-surviving issue of two grandchil- dren upon the two grandchildren’s death, whether And with that final note, I shift 19. Id. to pay principal upon the death of the first to die my attention away from this column, 20. In re Estate of Lewis, 25 N.Y.3d 456, 459, 34 of the grandchildren or not until after all died). N.E.3d 833, 835, 13 N.Y.S.3d 323, 325 (2015) (remit- and back to my Federal Civil Proce- 25. Phillips, 101 A.D.3d at 1710, 957 N.Y.S.2d at ting to Surrogate’s Court to determine whether the 778. Similarly, in In re Application of D’Elia, the dure outline. I have my umbrella, 1996 instrument should be admitted to probate). Surrogate found that when the will read that “I boots, and rain jacket ready, and 21. Id., 34 N.E.3d at 835, 13 N.Y.S.3d at 325. grant a life estate in the real property which I regard the approaching storm with occupy as my primary residence at my death,” 22. In 2015, legislation was introduced in both the guarded optimism. Come December New York Assembly and Senate that, if passed, the testator meant to give a life estate only for his will create a rebuttable presumption that disposi- upstairs apartment and not for the entire two- 21 I am a (relatively) free man: and tions and presumably nominations of fiduciary or family home he owned when he died. 2005 N.Y. to make as dramatic a break as pos- Slip Op. 51700(U), **2–3, 862 N.Y.S.2d 807, 2005 WL representative capacity to relatives of ex-spouses sible with law school I embark on a are revoked. A.7638 & S.5684 (2015); Sharon L. 2715662, at **1–2 (Sur. Ct. Kings Cnty). Klein, NY’s Latest Legislative Session: What 26. N.Y.L.J., Oct. 28, 2014, at 22, col. 4 (Sur. Ct. birthright trip to Israel on December Passed, What Didn’t, What’s Next, N.Y.L.J, Aug. Bronx Cnty). 28 for 10 days. This is the light at 29, 2016, at S2, col. 1-6, S7, col. 1-3. 27. Id. the end of this dark tunnel they call 23. It’s beyond the scope of this column to dis- 28. N.Y.L.J., Mar. 10, 2010, at 36, col. 2 (Sur. Ct. finals. Wish me luck! n cuss at any length the different types of bequests. N.Y. Cnty). But there are general bequests (“I give $5000 cash to my son, Kenneth.”); specific bequests (“I give 29. See Klein, supra note 22. my gavel collection to my daughter, Natalie.”); 30. N.Y. Chap. L. 354 (Sept. 29, 2016).
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† Delegate to American Bar Association House of Delegates * Past President
NYSBA Journal | January 2017 | 63 THE LEGAL WRITER BY GERALD LEBOVITS
Will of Fortune: New York |Will Drafting – Part 2
art 1 of this two-part column, and desires as expressed in a will are testators’ affairs to draw a will that which appeared in the last edi- called fiduciary duties. Carrying out communicates clearly and with speci- Ption of the Journal, outlined the these fiduciary duties requires a high ficity the testators’ intent and instruc- basics of will drafting. This column is standard of behavior and undivided tions for the orderly disposition of about the importance of clarity in will loyalty.8 A will must provide clear the estate. A court will determine the drafting. directions to the fiduciary. testator’s intent from the four corners It’s impossible in a column of this Although a will is the most basic of a will if the will is unambiguous.11 length to address all the areas of writ- of instruments to carry out a testa- But a court will entertain extrinsic evi- ing a will. Will drafting is often com- tor’s intentions, a will is also “often dence if it finds that a disputed term plex and always detail-oriented. This the most important . . . estate plan- in a will is ambiguous.12 This opens column focuses, instead, on select will- ning document.”9 Estate planning can the door to introducing documents the drafting topics in which clarity is criti- cal. We’ll also include some pitfalls and solutions. Perhaps most fundamental to will clarity The purpose of a last will and tes- tament is to wind up and settle the is accurately and completely identifying testator’s1 affairs and to communicate the intended beneficiaries. the testator’s intent and instructions for the orderly and efficient distribu- tion of the testator’s assets.2 Without be complex. It involves understanding testator might not have wanted made clarity, as well as specificity and thor- and addressing a host of topics. These part of the public record. For these and oughness, the likelihood that a will include the nature and value of the tes- other reasons, clarity in will drafting might accomplish these goals becomes tator’s assets, family dynamics, earlier is critical. merely aspirational. An unclear will marriages and the children and grand- Because New York’s Estates, Pow- can be the cause of time-consuming children from those marriages, which ers and Trusts Law (EPTL) both autho- and expensive legal proceedings, most family members have survived the rizes and governs wills in this state,13 often in the form of a construction testator, the quality of the relationships and because other laws, most promi- proceeding3 or a contested accounting among the family members, the exis- nently the Surrogate’s Court Procedure proceeding.4 tence of preexisting planning devices Act (SCPA), also affect the drafting A will is also the instrument by (e.g., inter vivos trusts, earlier wills, process, familiarity with these laws is which a testator appoints one or more contractual agreements such as IRAs, crucial to draft a clear and concise will. persons of trust and confidence to 401(k)s, pension and deferred compen- The EPTL and SCPA establish many accomplish the purposes set forth in sation plans, annuities and life insur- default provisions and rules. The EPTL the will and to do so according to the ance),10 loans by the testator, business and SCPA frequently contain a phrase testator’s intent.5 In New York, the relationships, and debt. emphasizing the importance of clarity person responsible for carrying out The attorney draftsperson is in will drafting. That phrase is “unless the testator’s wishes is the executor.6 charged with the responsibility of tran- the will specifies otherwise” or similar If the testator wants to create one or scribing into a document the testators’ words to that effect.14 It’s up to the more testamentary trusts, the person intentions about settling their affairs attorney draftsperson to be familiar responsible for administering a trust is and disposing of their assets, so that with these opt-out provisions and to called a trustee. Executors and trustees the final document accomplishes the take advantage of the opportunities are fiduciaries.7 The responsibilities testators’ goals. The drafting attorney of fulfilling the testator’s intentions must gain detailed knowledge of the Continued on Page 58
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First District Cristina Rose Delise Robin Rae Kravitz Alex Atticus Parkinson Marc J. Veilleux Angelo A. Adam Jennifer Audrey Depalma Anna Kreimerzak Zeina Pasquini Nicole Hallie Velazquez Amanda Gibbons Addison Ryan Eschert Dibble Preeti Krishnan Anastasia Mcletchie Pastan Sofia Anna Vitiello Tumi Adebiyi John Raymond Dillon Guy Michael Kulman Kushal Naishad Patel Jolene L. Wang Esinam Mawuena Daisy Justin Rivlin Druke Hiroyuki Kurihara Edward Perkins Alexander Jack Warents Agbemenu Zachary Daniel Dugan Alvin Kwong Kelsey Ann Pfleger Ariana Sahar Watson Gabriella Asal Ahdoot Jaren Blake Dunning Nicholas Kypriotakis Eric Andrew Plourde Herbert Weisburgh Robert Kyle Alagood Ana Maria Estrada Sierra Jose Landivar Maria Lourdes Pomares Mas Matthew Bret Weiss Taimur Alamgir Matthew David Evans Adam Carmelo Bergman Amanda Casal Pompeo Cort Welch Jesus Alejandro Albarran Julia Valli Stark Feldman Lanza Jennifer E. Poon Michael Frederick Werno Hernandez Genevieve Xinxin Feng Jonathan Andrew Laplante Meagan Emily Potter Matthieu Olivier Wharmby Natalia Arango Botero Michael Brian Fingerhut Sam Lawand Patrick Leonard Prin Hannah Kelly Whiteker Judith Ann Archer Noah Jordan Forrest Michelle Kay Letourneau- Jessica Leigh Prince Jonathan Wilcon Maria Arueira Chaves Michelle L. Fox Belock Jessica R. Pulitzer Karen Elizabeth Wiswall Ilana R. Atlas Sarah Hastings Fries Jesse Phillips Levine Patrick Thomas Quinn Kaileigh Elisabeth Wright Thomas Banwell Ayres Naoki Peter Fujita James Yi Li Omar Raddawi Jingjing Wu Avraham E. Bakst Jee-eun Jasmine Gahng Limunga Doris Milena Irina Razumovskaya Peter Hunt Wyman Priya K. Baranpuria Danielle Garbi-etedgi Litombe Matthew Zachary Reed Mona Xianjing Xia Daria Morgan Barry Ryan Harrison Gerber Matthew James Livingston Ashley Danielle Reinhardt Mengshan Xu Jaswinder Kaur Basra Dana A. Gibber Naeema Shahiydah Caue Rezende Myanaki Yifei Yang Lawrence Albert Bauer Avery G. Gibson Livingston Eileen Vanessa Rhein Yilin Yang Emilia Bechrakis Neil Gold Joshua Joseph Loring Megan Beth Richardson Alexander Richard Yarm Joan F. Bennett Levon Golendukhin Matthew Justin Luchs Maria Del Pilar Rivera Ruiz Janice Xiaoying Ye Miller Kathryn Blalock Jeffrey N. Gordon Mircea Alexandru Lupu Nicolas Guillermo Rodriguez Gary L Yeung Natalia Blanco Germosen Yass V. Grayeli Joshua Joseph Lustiger Gaziglia Dongyuan Yin Nathaniel Elias Blood- Steven Robert Green Kurt Lloy Lyn Ashley Elisabeth Rose Alex Lester Young Patterson Caroline Longenecker Tianyu Ma Evan Matthew Rosenberg Zichao Zhang Matthew Neil Bobrow Greenwood Sean Patrick Madden Harlan Philip Rosenson Yi Zhao Samuel Alexander Borland James Matthew Gross Seymour Magier Emily Suzanne Rosenthal Michael Brandon Zytnick Nora Lynne Brady Aaron Grunberger Bachar Mahmoud Reuven Roslyn Second District Melanie Francine Braverman Phara S. Guberman Hugh Hamilton Manahan Thomas Spencer Rosso Shahzadi Baez Ahmed Luke Daniel Brindle-Khym Telisa Ann Gunter Jose Manalo Rachelle Leora Tenenbaum Jason Andrews Walter James Bristow Sumit Gupta Eric Scott Marder Rubin Yousef Annab Robert Donahue Broderick Lindsey Rae Gutierrez Dylan Rob Marvin Cameron Charles Russell Jared Byrne Arader Benjamin Pinchas Brookstone Michael Robert Gynn Anthony Matos Michael Kristopher Sala Michael Drew Ashton Alexandra Bruno Carlo Henry Ha Russell Allen Mawn Lauren Jane Salamon Dyon D. Auguste Ngoc Quang Huy Bui Paul Hanft Ashley Evin May Andrew George Sangster Nimra Azmi Jordan Lee Bunn Syed Shaheerul Haq Jonathan Ira Mayblum Daryl L. Saylor Andrew Stirling Baker Arthur M.T. Burke Bernard E. Harcourt Nicholas Mayer Paige Hamilton Schmidt Michael William Bethoney Steven Joseph Bushnell Drew Michael Harmon Andrew Michael Mazzarella Katelyn Helene Seigel David Carl Billingsley Eugene Bykov Charles Lawrence Hauch Susan Huang McClure Erica Kristie Senat Nickolas Milan Bogdanovich Alida Diane Camp Thomas John Hennessey Lauren Blair McGlothlin Wan Jun Seow Oleg Bolehivskyy Christina Ann Campanella Jillian Shafer Hewitt Christine Megan McGrath Carolyn Elizabeth Shanahan Stefania Boscarolli Mariya Antonova Chakarova Christopher Hilbert Joshua I. McLaurin Alexander Brandt Shiffman William McKinney Brown Vishal Chanani Matthew Nathan Holbreich Maura Glynn McNamara Yo Watanabe Shiina Michelle Marie Carmon Sharon A. Cheren Christopher Willis Holiman Spencer Cullings Meade Sang Min Shim Xavier Eddie Carr Michelle Kay Chu William Patrick Hubbard Matthew Peter Tobago Sahar Shirazi Christopher Carter Lauren Giselle Citrome Elizabeth Huh Merritt Merav Shor Brett Evan Cattani Austin Cohen Leneer Lorraine Hutchinson Gerard Anthony Messina Diana Mary Sidlowski Sasha Neema Chegini James Hubert Coil Shin Young Hwang Alexandra Sage Messiter Brian Sieben Benjamin David Clack Olta Collaku Sumiah Ashley Jaber Luke Woods Meyers Mary Rollings Silverman Richard Brendan Corde Mark E. Conrad Noah Tom S. Jaffe Michelle Meng-si Miao Michelle Julie Skalrud Amanda Rose Cottingham Micaela Conte Alexandra Simpson James Kristina Bianca Moehle George Kimball Smith Geoffrey Kingston Crary Sean F. Corrigan Jennifer Jimenez Kaitlin Amanda Morrison Justin James Sommerkamp Jonathan W. Croft Kelly Beth Cosby Nicholas Malino Joseph Elinor Hart Murarova Tania Stephanie Soris Andrew D. Dellaripa John F. Coverdale Michael Ju Patricia Murguia Paul Joseph Springer Kaitlyn Taylor Devenyns William Laurence Cranch John Peter Kane Arman Naraghi-pour Geoffrey Keith Stauffer Helen Downes Nathaniel Adam William Rachel F. Katz Caelah Elizabeth Nelson Nathan Caine Stein Jessica Briana Downes Crider Mark William Kelley Laura Meredith Nelson Samuel Winston Stelk Alexandra Villamia Drimal Nathaniel Desmons Cullerton Martha Lynn Kellogg Kensing M. Ng James Tai Jessica Drury Connie Lee Dang Susie Kim Julianne Thu Nguyen Elinor Lynn Tarlow Collet Ebadi Eric Michael Daniel Yoojin Lorelle Kim Mark Oliver Norell Beau Vivod Taylor Elizabeth Christa Zen Douglas J. Danzig James W. King Lyndon Jackson O’Connor Emily Victoria Thomas Encinas Debolina Das Leni Beth Kirschenbaum Ololade Olayemi Oladapo Yukiko Tomimatsu Miles Davenport Freeman Robert Bernard Davis Nicholas Joseph Klenow Molly Cassandra Olsen Tin-fu Tsai Aliona Gherasimov Matthew Ryan Deatley Joshua Scott Knoll Christopher Pacelle Jameelah Hanan Tucker William Jang Giacofci Aaron Clyde Deditch Tilak Jesudasan Koilvaram Daniela Jeaneth Paez Salgado Alita L. Tulsi Samuel Zachary Goldfine Luisanna Del Rosario Leigh Simon Krafchek Tali Michal Panken Katherine Tyurin
NYSBA Journal | January 2017 | 1 Bruce Liang Gottlieb Patrick Joseph Santos Abigail Kennedy Horrigan Erica Michele Meyer Abraham Jacob Jeger Roohi Jitendra Gupte Tobias Dylan Schad Kristan Lynn Lansbery Joseph Anthony Myers Shang Jiang Taisa Gurshumova Viviane Kim Scott Konstantin Yefimovich Brianna Leigh Nelson Colin Michael Johnson Daniel John Haley Vanessa Selbst Lantsman Alison Nicole Noonan Eric Cormier Johnson Andry Henriquez Jill Kassandra Serpa Michael Thomas Lee Meinert Matthew Todd Rutchik Kimberly Samantha Juszczak Grisell Hernandez Christina Marie Sindoni Tamara Regina Levi-Weiser Daniel Sadeh Jongchan Daniel Kang Luke Herrine Perla Solis-Silva Paul Vincent Levine Michael David Schultz Robert Kellogg Peter Michael Hertzog Alessandra Spina Janine M. Lewis Jawad Yusuf Shaikh Joshua David Kingsley John Andrew Hreno Jeni Lynn St. George Ruey-chiang Lin Rachel Lea Shkolnik Andrew Klaben-finegold Norly Samantha Jean-Charles Noah Gates Susskind Andrew Mark Lippman Lawrence Isidore Singer Sonu Lal Kyoung Jung Perry Isaac Teicher Jacklyn Marie Macias Aidan B. Slevin Nancy Lam David A. Karopkin Neige Augusta Celeste Steven Magi Andrew Bennett Smith Illana Devorah Leiser Omar Husain Kazmi Thebault Vera Quimba Malanyaon Brian David Stefanovic Stephanie Y. Lin Maxwell Haviland Kelly Alina Titievskaya Stefan Mikhail McDaniel Sheraz Minhaj Syed Constantine Loizides Sabreena Khalid Priya Madhavi Varaprath Delphine Francoise Adam James Theo Nitasha Madan Urooj Khan Eszter Agnes Vincze Nougayrede Gerard Raymond Vanleuvan Lunar Mai Julia Khokhlova Cheryl Wang Erin L. O’Dea Kelsey Nicole Walker Leo Lanny Mensah Dohyung Michael Kook Elizabeth Lisa Wang Michael O’Keefe Rachel Kate Warren Caitlin Isobel Mullan Nicole Kornblum Brandon Montrell Whittaker Asha Rajen Pandya Jennifer Marisa Wickers Gregory Robert Musso Vinay Ram Krishnan Bailey Kathleen Williams Anu Paulose Emily R. Zerkel Michael Papson Kristian Curtis Krober Jonathan William Wood Timothy Edward Pavelka Devi Patel Eleventh District Katelyn Ann Krueger Percy K. Xu Hector Jose Perez Michael Amilcar Perez Benjamin Joshua Adelson Chaka Shakira Laguerre Maggie C. Yang Michelle Jessica Piantadosi Richard Quatrano Sumaiya Aftab Ahmed Joanna Corrie Laine Jordan G. Zimolka Derek Michael Robinson Jessica Louise Richman Usman Ahmed Octavius Lamour Natasha Rose Sabot Edward John Robinson Third District Ogochukwu Anthoninus Keith Adam Langlais Lee J. Sauerhoff Whitney Alexandra Robinson Mary Elizabeth Burgess Akunefo Wei-fang Luo Michael Joseph Segreto Natasha Devi Sahadeo Thomas A. Capezza Cody Alongi Vara Gartin Lyons Francis Phillip Taylor Farrell Schwartz Joyce Ingrid Crawford Nathaniel Caleb Ament-Stone Nawal Katrina Maalouf Matthew Charles Toal Wishuporn Shompoo Jeffrey Carmine Gautsche David Benjamin Angel William Alan Macrae Kimberly Lauren Tracey Christine Shyu Lori J. Mason Violeta Arciniega Amelia Anne Maddox Marissa Vitolo James Francis Simermeyer Kathleen Maura O’Hare Erin Virginia Bergey Clementine Malvarosa Zachary Ross Waldman Harpreet Singh Kimberly August Prince Archana Arvind Bhakta Jacob Marks Aida A. Zapata Tamara Rachelle Slogosky Walsh Nitisha Bishnoi Charles Thomas Mather William Joseph Smolinski Jeffrey John Pritchard Tenth District Kelsey Monique Burgess Viola R. Mathews Syeda Mazida Tasnim Binish Anjum Gregory S. Choi Theodore Odland Mcbride Fourth District Boyan R. Toshkoff Jenna S. Atwell Nuzhat Jahan Chowdhury Michael Ryan McDonald Lynn Anne Pucciarelli Carlos Alfredo Valenzuela Jonah H. Blumenthal Alexander Blake Cohen Rachel Lynn McGhee Luis Antonio Velez- Fifth District Eilleen Cathryn Buckley Donial Dastgir Jessica Montes Hernandez Aidan Bryden Cleghorn Ariel Buziashvili Stephanie Yvonne Day Tyler Harrison Morris Brandon Israel Walker Maria Mastriano Peter James Callaghan Anthony Francis Delury Shira Moyal Lauren Dianna Zaccagnino Jennifer Ashley Camillo Rose Ding Caroline Margaret Murphy Seventh District Guoyang Zhang Cristina Esperanza Ceron Dolgora Dmitrievna Scott Morgan Murrish Brian R. Becker Yujian Zhang Inyoung Jenny Choi Dorzhieva Dmitriy Nam Holly Lynn Eicher Toi Lashawn Clifton Christelle Ducray Twelfth District Daniel R. Neer Aaron Matthew Griffin Justin Stephen Curtis Ignacio Vladimir Duran Anthony Alba Abimbola Olusegun Christine Carol Lachnicht Leor Oved Edo Timothy John Durbin Michael J. Antolini Onafuwa Kenneth Maynard Smith Michael Bradley Engle German Andres Fernandez Bernard Benyayezor Armoo Justin Ronald Orr Deirdresha Sasha Gaye Wint Laura Michele Esposito Octavian Marian Florescu Hayden Nadine Briklin Ariana Alcasabas Pabalan Eighth District Liying Feng Peter Richard Flynn Noelle Christina Forbes Roman Koropeckyj Pazuniak David John Exterovich Thomas Joseph Frederico Michael Anthony Forsette Ashley Nichole Guarino Stephanie Marie Persson Lindsay Karas Stencel Donald J. Friedman Christopher Marshall Makousse Bintou Ilboudo Justin Pierre-louis Michael Robert Tucci Alexana Gaspari Forstrom Scott Gary McDonald Lauren Frances Daneu Price Lauren Gaye Gatto Afrodite Fountas Devin Edward Millbower Daniella Raveh Ninth District John Henry Geager Sini Fu Alexander Ramirez Simcha Rechnitz Francois Annabi Barney James Giannone Gayatri Galav Jordan Lehner Silver Ryan Sebastienne Redway Katherine M. Baldwin David William Goodge Derek Robert Garman Kirby Jermaine Smith Rafael Reyneri Dianna Amy Borow Katerina Grinko Quezada Christen Giannaros Iris Ismelda Ventura Lidia Helena Souza Rezende Julian David Buffa Jamie Robert Huntley Andrew Kiiru Gichuru Christopher William Joseph A. Capozzoli Thirteenth District Alexander Ip Victor Gorman Robinson Sophia Malyne Sarah Carter Peter Cusick Ashleigh Georgia Candi Green Shawn P. Roche Graham Robert Chapman Charles Ryan Luk Kashimawo Alexander S. Gutierrez Stephanus Johannes Ronen- Shafi Chowdhury David Machado Shiva Prasad Khanal Kehkeshan Hafeez van Heerden Andriana Nicole Chryssikos Paul S. Metcalf Susanna Elizabeth Laruccia Albert Hakimi Daniella Roseman Alessandra Liana Cortina Michael Joseph O’Beirne Evan Reid Levtow Eleni Marie Hatzis Beth L. Rosner Gerard A. Djate Lisa M. Parisio Anastasiya Lipatov Jillian Marie Hernandez Jacques-andre Roussel Irena O. Feofanova Joanna Plonska Krystal Matos Jimei Louise Hon John Francis Ryan Kristin Nicole Gualano Robert James Ramsey Brittany Rae McCormick Wonhee Hong Kevin Michael Ryan Faizan Tariq Habeeb Jill M. Spinelli Rebecca Medina Valerie Bukola Igbinoghene John Christopher Henschel Gregory Stone
2 | January 2017 | NYSBA Journal Serenay Taysin Patrick Michael Carey Katherine Anne Cole Xiaofu Huang Gabrielle Margaret Lyons Josephine Weiss Elizabeth Louise Carter Erickson Yi Huang Bahareh Mahdavi Nicholas Angelo Caselli Shreya Fadia Yueyue Huang Irene Mainar Borao Out-of-State Zita Eleanor Casserly Yurima Francia Falcon Christopher W. Hughes Sara Maktouf Joseph Elias Abboud Kyle Hudson Cassidy Dennis Fan Mikella Marie Hurley Gabriel Maldoff Anthony Salvatore Abiuso Samantha Rose Catanese Zhongyi Fan Claudio Eduardo Iannitelli Charles Alan Malloy Cevdet Nuri Acar Wan Cha Jun Fang Mamoru Ikeda Yuelei Mao Adam Jacob Adler Lih Yik Chang Thomas Robert Fanizzi Kaori Itoh Alyson R. Marcucio Andres Afanador Tung Chang Travis Michael Farr Michael Richard Jackson Leticia Mariz Schweizer Al Waleed Yahya Al Kiyumi Tarasi Chantladze Layne Alison Feldman Annella Marella James Ana Carolina Markowskyj Samantha Tilipman Ruipu Chen Silvia Pereira Fernandes Jessica Floyd Jensen Jonathan L. Marks Alexander Xueyao Chen Jordan Robert Firestein Joshua Rene Jeyaraj Bernard Mary Marshall Rodrigo Alejandro Alvarado Zhao Chen Simon Lewis Fischer Yanting Ji Tiffany Lynn Martinez Stephanie Tiboah Amoako Zhuo Chen Gregory W. Fortsch Niao Jiang Charlette Lachez Matts- Judy Pei Xia Ang Zhe Cheng Andrea Michelle Fraleigh Jin Jin Brown David Michael Angeloff Zixuan Cheng Colin Francis Joseph Brian Johns Beverley Mbu Danielle Angotta Rita Chertorivski Juliette Marie Fraudeau Karla Monique Johnson Joseph P. McDonald Justin Lewis Ankerman Vivien Wei Mun Chia Valentina Frignati George Francisco Jorges Kyle Sellers McGuire Mari Aoyagi Michelle Hui Shan Chiang Rao Fu Henna Jung Jack Eli Meek Amulya Appalaraju Ian Thomas Childs Ryan Kevin Gallagher Jonathan Zeev Kahana Charles Michel Merveilleux Brian Arbetter Yuen Pui Chiu Lauren Ann Galvani Eun Joo Kang Du Vignaux Justin Vincent Arborn Hansang Cho Annabelle Gantelmi D’ille Jun Kashio Shahrukh Mian Melodie K. Arian Karen M. Cho Qian Gao Gulen Begum Kayum Meghan Grace Michael Rebecca Michelle Arian Anna Rose Christenson Yan Gao Stephen Deverall Kelly Mike Phillip Michel Christopher Michael Ha Young Chung Zachary Richard Geneseo Jamie Olivia Kendall Benjamin Cale Cameron Armstrong Michael Dominick Cilento Michael Fayez Georgi Megan Chauffe Kiefer Miller Bjorn Rudolf Arp Jessica Kate Cochrane Emily Layla Ghadimi Youyoung Kim Christopher Michael Miller Vincent Justin Arpey Sarah Louise Cockrum Matteo Giangaspero Rudolph Graham Klapper Jason Falk Miller Jeffrey Ira Auerbach Michael Frederick Cockson Ian Paul Goldstein Shana Adele Knizhnik Olivia Zimmerman Miller Marian Awad Bradford M. Cohen Agnieszka Elzbieta Yuma Kotake Heather Colleen Milligan Ama Gyamfuaa Awua- Paul Jay Cohen Goliszewska Saso Kraner Brian Manuel Miranda kyerematen Lauren Elizabeth Connell Madeline Michelle Gomez John Francis Kroto Andrew Perry Moore Soraya Rose Bagheri Laura Kateri Conroy Elizabeth Ann Gonzalez Sharanyaa Kruti Vasan Louis Morelli Sang Woo Bang Alexander Mikhail Cooke Jorge Arturo Gonzalez David Michael Kubiliun Ryoji Moroi David Ellis Barclay Christian Edwin Corkery Randy Lee Gori Andrew Ernest Lahey Reza Mostafavi Jose Guillermo Baron Nahila Agostina Cortes Robert J. Gorrie Elena Lapina Ryan Francis Murphy Kevin Hugh Bell Cristina Luisa Costa De Chloe Louise Isabell Gouache Elizabeth Marie Lautenbach Brittany Marie Murray Adriana Elena Bello Roosen Almeida Kurt P. Goudy Byoungjoo Lee Alexander Frederic Caleb Andrew Benadum Brett Rosenbloom Cotler Valeria Granata Christopher Jesu Lee Murugasu Michael Stephen Bennett Lisa Marie Coutu Laurel Frankston Grass Grace Yeeun Lee Moshe Bennie Nachum Samuel Simon Berrebbi Barry Scott Crane Erin Nicole Gray Jae Hoon Lee Christopher Takeshi Napier Veronica Berruz Ralph Bruce Crelin Kristoffer Agner Gredsted Ji Hae Lee Lauren Kimberly Neal Patrick Michael Birney Alice Royce Bancroft Cullina Lash Lenard Green Kyungjae Lee Kevin Michael Neylan Claire Michael Blakey Christina Marie Culver Steven Douglas Green Minjae Lee Khanh Ngoc Nguyen Aimee Blenner Johnlee Scelba Curtis Lueka Suzanne Groga Bada Robert Han Gang Lee Ryan Scott Nichols Bethany Anne Blood Deborah Anne Cussen Ran Gu Sang Yub Lee Taro Nishide Gianni Boffelli Kate Schuler D’agostino Fredrik Sven Birger Gunnard Su Yeon Lee Hideyuki Nishimura Luz Danielle Ortega Bolong Nia Ariel Davis Stephanie Nicole Gwillim Tina Yura Lee Robert J. Norcia David Bondanza Robert Linley Dawson Timothy Curtis Haas Thomas Michael Lent Kaitlyn O’Shaughnessy Bobbi Borsellino Mignon De Wilde Gerard Jay Habas Saskia Laura Leopold Osarugue Courage Amaury Alfredo Boscio Taylor Anne Dean Christopher William Hale Chunbei Li Obayuwana Colon Pelin Demirdere Eski Marcelo Halpern Jia Li Michael Peter Olel Okayo Sasha Jung Ae Boshart Lee Joseph Fitzgerald Pablo Eugenio Hamilton- Kantong Li Kelechi Emem Okengwu Sixtine Bousquet Deppermann Silva Shanshan Li Peter Jordan Oliveri Allison Shirlene Brehm Justin Andrew Dews Iris Hammerschmid Xuxu Li Tomasz Pacholec Hunter John Briegel Matthew Dias Jingwen Han Yan Li Daniela Paez Cala Fatima Guadalupe Brizuela Lisa Ann Difilippo Jiawei He Dandan Lin Jeongyeol Park Zachary James Brumbaugh Simranjeet Kaur Dolla Sarah Ahmed Heba James Chih Kai Lin Jiyoung Park Fernando Burman Nicolau Michael David Downs Heather Grace Hensley Po Yen Lin Sungbin Park Dakotah Michael Burns Zhouyuan Duan Netanel Hershtik Xi Lin Tatiane Park Thomas John Burns Heather Marie Eichenbaum Daniel Eric Herz-roiphe Clinton Thomas Lipscomb Nuria Pastor Martorell Maria Florencia Cadagan Benigna Chibuanuli Ejimba Helen Holcomb Aaron Michael Littman Dhara Janak Patel Maximilian De Cuyper Smahane El Yacoubi Michael Thomas Hollister Qinghe Liu Sonal Pankaj Patel Cadmus Sherif Alaaeldin Elatafy Christopher Benton Hopkins Yaqin Liu Yiheng Peng Ana Maria Calero Rhani Abd Elrahman Mark Ronald Arthur Horn Tania Loghmani Kali Peterson Azzurra Camillieri Carolin Andrea Emmert Chauyin Rebecca Hsu Anaid Arlet Lopez Uribe Robert Gabriel Pethick Conor Thomas Campbell Michelle Alayne Emmons Muyun Hu Yuhao Lu Vu Pham Alissa Christine Cantrell Brandi Kalena Shaddick Siyu Hu Nijia Luo Daniel Pierre John Thomas Capetta Endres Weiying Huang Pujun Lv Chelsea Alexandra
NYSBA Journal | January 2017 | 3 Plushanski Yuki Sakurada Daniel Long Sockwell Kamala Marian Vasagam Jerry Yang Laura Possessky Cagla Salmensuu Sara Soleymani Matthew Edward Vigeant Jingping Yang Robert Seaver Powel Aderayo Oluwaseun Sanusi Chiyin Song Laarni Victoria Quidoles Xiaoting Yang Supriya Prasad Nivedita Shrivalli Lijie Song Vinas Zhi Yang Sandeep Avinash Prasanna Sathiakumar Yiping Song Amir Moshe Vitale Yao Yao Brian Neil Quarles Alexander Nelson Schachtel Natalie Sookhoo Nguyen Cam T Vo Thoi Lai Kengo Yaoi Dylan Joseph Quinn Michael Bradley Scher Maya Kiera Steite Masri Alyssa Ailleo Wade Shengjie Ye Suhey Ramirez Eric Anthony Schmidt Lunga Su Lawrence Francis Walker Inhyuk Yoo Louisa Mandy Ramsammy Courtney Elyse Schneider Jei Suh Christine Walz Sungmin Yoon Kristen Grace Rasnic Dominik Schoeneberger Jennifer Marie Sullivan Airun Wang Kristin Y. Yu Sara A. Ravich Baxter Thomas Schooley Al-amyn Shiraz Sumar Lei Wang Morris Charles Zarif Genevieve Grace Redd Joseph James Schuster Xinru Sun Lillian Li-chien Wang Evan Patrick Zatorre Karthik Pottipati Reddy Adam Block Schwartz Ryan Anthony Sykora Sen Wang Monika Elzbieta Zdzieborska Courtney Ann Reed Keren Yannick Frederic Schweizer Minli Tang Wei Wang Benjamin James Zellner Jeffrey M. Reisner Andrew W. Scott Tsai-ping Tang Yuzhong Wang John Zervas Aleza Simone Remis Jennifer Elizabeth Scro Yuan Tao Robert Allan Watson Min Zhai Alicia Reyes-hernandez Sergio I. Scuteri Alexey Valerievich Tarasov Dongjing Wei Linna Zhang Amanda Louise Reynolds Nadia Sofia Segura Narvaez Jeremy Richard Teaberry Jill J. Weinberg Qian Zhang Solomon Rho Anushka Sehmi Elise Tek Pierre Bruce Whyte Xiaoyu Zhang Alice Audrey Riviere Jessica Eun Seo Ellen Starling Tenenbaum Mckenzie Ann Wilson Yi Zhang Sarah Alice Roache Vidhi Sharma Stanton J. Terranova Ian Zev Winograd Fang Zhao Milena Rose Yvonne Nidhi Shetye Adrija Thakur Kaitlin McHugh Wojnar Jingyun Zhao Robotham Hui Shi Andre Thiollier Jessica Wu Jun Zhao Gabriela Maria Rodriguez Kevin Lloyd Shildneck Sophia Tong Junkun Wu Wei Zhao Lori Ellen Romano Jee Won Shin Adela Troconis Qiongjie Wu Yanan Zhao Casen Baker Ross Jonathan Mackenzie Short Erika Danielle Trujillo Yiwen Wu Yufeng Zhao Benjamin Lee Rouder Cameron Kinsley Sim Alda Falicia Tsang Ye Xia Jacqueline Bei Ni Zheng Alexandros Roussos Samantha Simms Atsushi Tsujii Feiyue Xu Yunlong Zheng Jennifer Irene Douglas Nandini Singh Mayuko Tsujimoto Miao Xu Ziqing Zheng Rovelli Michael Alexander Skazick Caitlin Bennett Tully Mingyang Xu Hao Zhou Judith Gabriele Rubin Mark J. Skinner Elizabeth Barnwell Kelly Siyi Xu Weiwei Zhou David John Rundle Mariam Smairat Turley Rony Yaacoub Weiqiong Zhu Emmanuel Benson Kwame Elliott Aaron Smith Victoria Usova Runa Yamamoto Wenjing Zhu Saah Aaron Philip Snellenbarger John Meade Van Deventer Jing Yan Umar Zulqarnain Naoto Nelson Saika
4 | January 2017 | NYSBA Journal