Letter From The President Of The New York County Lawyers' Association

2006-11-01 01:00

To The Readers Of The Metropolitan Corporate Counsel :

Everyone remembers the adage 'nothing is certain but death and taxes.' In the 21st century, we can add 'the infirmity of old age' to that dismal duo because of advances in modern medicine and public health. Our generation's ubiquitous concern is having to care for an elderly parent or relative. Thirty or 40 years ago, will preparation was a universal component of most lawyers' skill sets, but that skill is no longer enough as our aging population's need for legal planning has grown exponentially.

New York County (i.e., Manhattan to outlanders) faces this problem with somewhat greater urgency than most of the country. According to the 2000 census, approximately one third of Manhattan's one and a half million residents were 60 years of age or older. These older citizens become ill, infirm and increasingly less able to care for themselves.

Many affluent people provide for the inevitability of time by preparing powers of attorney, health care proxies and other thoughtful responses in anticipation of what is, after all, inevitable. Unfortunately, most of our other fellow citizens cannot afford this type of legal planning. Even older people with a comfortable lifestyle are often unwilling to spend the money necessary to obtain competent legal advice on these matters.

Hence, when an infirm person has not executed a durable power of attorney or health care proxy allowing someone else to act in the event of a disability, that individual's financial affairs and medical decisions slide into legal limbo. Checks cannot be cashed, bills cannot be paid and vital medical decisions may be delayed due to the inability of anyone else to step forward and act. The only solution for these problems in New York is the appointment of a guardian under Article 81 of the Mental Hygiene Law, which provides the legal framework to declare that a person is incapable of caring for himself or herself and to declare that someone else be appointed to serve as the guardian of that person and/or of his or her property. All newly appointed guardians are required to take a training course and even professional guardians must take a training course of Part 36 on our Court Rules.

Guardians are generally family members who are unfamiliar or unsophisticated regarding the necessity for action and/or may not understand their legal constraints and obligations. Moreover, grief, emotional turmoil and stress are likely to undermine their decision-making abilities.

In November, NYCLA becomes the only local bar association to have a pro bono program designed to provide assistance to lay guardians in Article 81 proceedings. Our Article 81 Guardianship Program was spearheaded by Carol A. Sigmond, a member of our Supreme Court Committee, and Anthony L. Soudatt, co-chair of our Pro Bono Committee, who presented a report to the NYCLA Board in September. Together, they thought 'outside the box' of traditional ways to tackle this problem and devised an innovative 'unbundled' approach. Their focus is on training lay guardians and providing them with the resources necessary to comply with the various court requirements for training, accounting, record-keeping and court filing, in addition to handling such issues as marshalling assets and providing for nursing home arrangements and pre-paid funeral contracts. Given New York's unique ethnic mix, there are also requirements for translation services because guardianships often involve people who are not English speakers.

As part of this program, we will initiate discussions with representatives from the New York County Supreme Court to facilitate court personnel's referral of prospective lay guardians to NYCLA's program. Currently, lay guardians act pro se in court and when they try to obtain the necessary forms and rudimentary advice from clerks and other court personnel, they are confronted with the practical and ethical constraints that disable the Courts' staff from giving legal advice to private parties.

We anticipate that the need for Article 81 guardianship training will not abate as our aging population cohort continues to grow. Our systematic approach will enable us to provide unbundled services combined with the use of high-tech tools in order to evaluate costs and improve efficiencies. We intend to work closely with court personnel to determine whether the Office of Court Administration should create a uniform set of guardianship rules similar to the rules governing proceedings in the Commercial Division of our Supreme Court. We also will investigate whether any charitable institutions will wish to serve as guardians when no 'professional guardian' can render this service or the infirm person lacks a relative or friend willing to serve.

In conclusion, I am certain that this will be a pro bono initiative that our Association's members can put not only their hands on but also their hearts in.

Sincerely,

Edwin David Robertson