A Guardianship On Christmas Eve? Evaluating The Case Of Aunt Matilda
*Analysis based on the plot of the 1947 movie Christmas Eve, starring Ann Harding*
I The Scenario
Matilda A. Reid, age 81, is the sole heir of Harold Reid, a New York City billionaire. She lives alone in the Park Avenue mansion where she grew up, and where she has lived for all of her life. While somewhat frail and occasionally forgetful, her only medical diagnosis is a mild case of arthritis. Her daily needs are attended to by her 65-year-old butler, Stevens, who prepares her meals, cleans the house, drives her to doctors' visits, and takes care of virtually all other household business. Matilda has never executed a Health Care Proxy, a Power of Attorney, or any other advance directives.
Matilda and Harold never had any children. Her closest blood relative is a nephew, Phillip. Phillip lives in New York City, but rarely visits his Aunt Matilda, except on those occasions when he needs to ask her for a monetary loan. During their marriage, Matilda and Harold also adopted three orphan boys -- Michael, Mario, and Jonathan -- and raised them as their sons. None of these three "sons" have visited Matilda for at least five years.
While she has always given large donations to charitable organizations, particularly those involving children, Matilda's recent donations have been significantly larger than before. In the past year alone, she gave away more than $4 million of her inherited fortune to three seemingly bizarre charitable causes. One of these causes is what Phillip calls "half a million dollars in dead rats" -- recruiting several orphan children to kill rats that had been invading the mansion's basement, and paying those children $200 for each rat that they killed. The rest of the money went to opening a camp to counsel unhappily married couples -- which prevented only one divorce -- and to an association of retired scrubwomen. Donations given during the previous two years went to equally unconventional causes. Phillip has asked Matilda on several occasions to tell him just how much of the family fortune is left, but Matilda always flatly refuses to reveal her financial details to Phillip.
Matilda also engages in a number of unconventional behaviors. For instance, every day, she throws birdseed on the floor of her parlor and opens the windows so that bluebirds can fly inside and eat it. She also has a toy train set which covers her entire dining room table, and uses it to transport food items to her guests whenever she holds a dinner party.
About a month before Christmas, Phillip decides that he has seen enough. He contacts his close friend, Judge Austin, and states that his Aunt Matilda has "finally gone off her rocker." He tells the Judge that his aunt needs a guardian, and that he wants to be appointed as that guardian. The Judge is somewhat skeptical, but agrees to pay an "informal visit" with Phillip to Matilda's house. He brings with him Harold Lloyd, an attorney whom he frequently uses as a court evaluator.
On this visit, Judge Austin and Harold Lloyd have high tea with Matilda. Both of them witness Matilda bringing the bluebirds indoors to feed them and using the train set to bring them their tea. Judge Austin also asks Matilda about the donations that she has given during the past year. Matilda tells the Judge exactly how much money went to each cause, and says that she gave away this money because she likes "making people happy, particularly people everyone forgets about." When Judge Austin specifically asks Matilda about the dead rats, she shows him a makeshift broach that the orphan children made for her. "This," she states, "is worth half a million dollars to me."
Near the end of the visit, Harold Lloyd tells Matilda that it must be very difficult managing all of her affairs and taking care of herself in such a large, old mansion. "Why don't you turn all of your affairs over to Phillip and take it easy now?" he asks. Immediately, Matilda becomes upset. She declares that she would never trust Phillip to "look after her affairs." Harold Lloyd then asks Matilda if there is anybody who she would trust. "Any of my three sons," she responds immediately. "Come back here for a cup of punch on Christmas Eve, and I'll have all three sons here for you to meet, and you will surely see for yourselves what fine men they are." Dubious, Judge Austin and Harold Lloyd leave.
The next day, Matilda hires a private investigator to track down Michael, Mario, and Jonathan. Over the next two weeks, he tells her about their whereabouts. As it turns out, Michael is living right in New York City. He exists largely as a playboy, not working and spending money that he received from a lottery winning, and is engaged to marry his longtime sweetheart. Mario owns a nightclub in Havana, where he fled after getting into criminal trouble in the United States. A warrant is still pending for his arrest. As for Jonathan, he works as an itinerant rodeo athlete, drinking away most of his earnings in small town saloons. In the end, the private investigator tells Matilda that "none of her children are likely to show up" at her house on Christmas Eve.
Yet the investigator is wrong. Matilda tells the newspapers hear about Phillip's intentions to petition for guardianship over her, and the papers run front-page stories titled "Reid Fortune In Jeopardy", including quotes from Matilda calling for her sons to return on Christmas Eve. Michael, Mario, and Jonathan all read these stories. And Christmas Eve, they all arrive at Matilda's home. To Matilda's delight, Michael, Mario, and Jonathan tell Judge Austin that they would be happy to "do whatever they can to help and protect our mother and make certain that she is happy."
Phillip is furious. The day after Christmas, he files a petition to be named guardian of Matilda's person and property under Article 81 of the Mental Hygiene Law.
II Step One: Which Form Of Guardianship May The Petitioner Pursue?
New York State offers two major statutes under which a petitioner may pursue guardianship for an incapacitated person: Article 17-A of the Surrogate's Court Procedure Act and Article 81 of the Mental Hygiene Law. See N.Y. SURR. CT. PROC. ACT §§ 1750 et seq. (McKinney 2013); N.Y. MENTAL HYG. LAW §§ 81.01 et seq. (McKinney 2013). Given that these two statutes "reflect different motivations and purposes in their approach to guardianships," it is important to analyze whether Phillip has chosen the correct statute under which to bring his guardianship petition. See Rose Mary Bailly & Charis B. Nick-Torok, Should We Be Talking? -- Beginning a Dialogue on Guardianship for the Developmentally Disabled in New York, 75 ALB. L. REV. 807 (2012).
SCPA 17-A, the older of New York's two guardianship statutes, is "a simple guardianship device, based upon principles of in loco parentis." Id. at 808. Originally created to allow parents to serve as guardians for their children with disabilities, it allows a court to appoint a guardian for a "ward" who is diagnosed with mental retardation, developmental disabilities, or traumatic brain injury. N.Y. SURR. CT. PROC. ACT § 1750-a(1)(a) (McKinney 2013). To be deemed "developmentally disabled" under Article 17-A, an individual must have "an impaired ability to understand the nature and consequences of decisions" and be incapable of managing his or her own daily life and affairs. SURR. CT. PROC. ACT § 1750-a(1). Guardians hold widespread authority -- literally, the authority of a parent -- over person and property under Article 17-A. See, e.g., In re Chaim, A.K., 26 Misc. 3d 837, 843 (N.Y. Cnty. Sur. Ct. 2009).
By contrast, Article 81 of the Mental Hygiene Law, the more recently adopted guardianship statute, authorizes appointment of a guardian whose authority is tailored to the personal and/or financial needs of the incapacitated person. See N.Y. MENTAL HYG. LAW §81.01 (McKinney 2013). Under Article 81, the court may consider a much wider range of factors to decide whether an individual needs a guardian. See MENTAL HYG. LAW §81.01. As long as the court determines that the allegedly incapacitated person needs a guardian to manage certain personal or financial affairs, and the allegedly incapacitated person either consents to a guardianship or is deemed incapacitated by the court, then the court may appoint a guardian. See MENTAL HYG. LAW §81.02(a); MENTAL HYG. LAW §81.02(b). If the court does appoint a guardian, though, powers of that guardian are to be narrowly tailored to impose only absolutely necessary restrictions upon the ward's personal autonomy. See, e.g., In re Albert S., 286 A.D.2d 684 (App. Div. 2d Dep't 2001) (internal citations omitted) ("A guardian is to be appointed solely as a last resort, where no available resources or other alternative will adequately protect the person.").
Here, Article 81 is clearly the appropriate statute for this case. Matilda has never been medically classified to have mental retardation, developmental disabilities, or traumatic brain injury within the diagnosis-driven definitions of SCPA 17-A. Furthermore, the blanket authority granted to a guardian under SCPA 17-A is not proper here, given that Matilda's level of independent functioning still seems quite high. narrow tailoring provided for under Article 81 is a far better fit. Thus, Phillip has chosen the proper statute under which to bring his petition.
Under Article 81, Phillip's petition must include the following "specific factual allegations": a description of Matilda's functional level, including her ability to manage the activities of daily living; specific factual allegations about personal actions and/or financial transactions claimed to demonstrate that Matilda is likely to suffer harm; and the approximate value of Matilda's assets. MENTAL HYG. LAW §81.08; MENTAL HYG. LAW §81.15. Matilda cannot be adjudged incapacitated by the court without a hearing. MENTAL HYG. LAW §81.11(a). She will be entitled to be present at that hearing, to call witnesses, to cross-examine witnesses, and to present evidence in her defense. MENTAL HYG. LAW §81.11(b); MENTAL HYG. LAW §81.11(c).
III Step Two: Is It Proper To Grant Guardianship In This Situation?
It is an established principle of New York law that awarding guardianship over person and property is an act of last resort, not of first reaction. See, e.g., In re Albert S., 286 A.D.2d 684. Courts are required to consider all other reasonable less intrusive alternatives before they can award guardianship over another individual. See N.Y. MENTAL HYG. LAW §81.01; MENTAL HYG. LAW §81.02; MENTAL HYG. LAW §81.03(d).
Under Article 81, the essential elements for appointment of a guardian are twofold: (1) Necessity and (2) Incapacity or Consent. See MENTAL HYG. LAW §81.02(a). In the instant case, Matilda refuses to consent to appoint Phillip as guardian. Therefore, Phillip, as the petitioner in this action, bears the burden of proving by clear and convincing evidence that Matilda needs a guardian. MENTAL HYG. LAW §81.12(a). Specifically, Phillip must prove that appointment of a guardian is necessary to meet Matilda's essential personal needs, and that Matilda is likely to suffer harm because of her inability to care for herself and her concurrent inability to appreciate the nature and consequences of her actions. MENTAL HYG. LAW §81.02(a); MENTAL HYG. LAW §81.02(b).
Commentators frequently observe the need for judges to avoid "playing doctor" in guardianship cases. See, e.g., Joseph A. Rosenberg, Medical Privacy in Article 81 Guardianship Cases: So What or Now What?, NYSBA JOURNAL, January 2013, at 37-38. Adhering to this advice will be especially important here. Matilda engages in behaviors that most people would consider "outside the mainstream", and her choices of charitable causes could be viewed as odd. However, eccentric behavior and unique charitable giving is not the legal definition of incapacity. Article 81 requires a much higher threshold, including consideration of the "functional levels and functional limitations of the alleged incapacitated person." See MENTAL HYG. LAW §81.02.
For the sake of argument, let us say that Phillip's petition alleges that Matilda frequently engages in unsanitary practices (like spreading birdseed all over her floor and opening the windows so the bluebirds can fly in and eat) and childlike pursuits, squanders millions of dollars of the family fortune without comprehending the consequences of what she is doing (the large-scale donations), belligerently refuses to discuss family financial matters with Phillip even though Phillip is merely trying to look out for her best interests, lives alone in a house that is far too large for an 81-year-old woman to maintain, and has developed an unhealthy attachment to Michael, Mario, and Jonathan even though they are individuals of shady repute and have had no contact with Matilda for years.
Let us also assume that the court evaluator's report brings up the bluebirds, the toy train, the refusal to discuss financial matters with Phillip, the large donations, the size of the house and Matilda's alleged frailty, and the fact that Matilda's three sons all have been out of the picture for some time. However, let us further assume that the court evaluator's report mentions the willingness of Michael, Mario, and Jonathan to help Matilda, the fact that Matilda has never actually been medically diagnosed with a mental or physical illness, the fact that Matilda proved to be well-aware of her financial donations, and the fact that she does not exhibit any signs of wanting for the basic necessities in life (food, adequate clothing, a generally clean living environment, etc.).
Presented with this information, it seems that the court should deny Phillip's petition. In examining Matilda's functional levels and limitations, it appears that her understanding of her actions and their consequences is actually quite high. For example, when asked about her charitable contributions, she knew precisely to whom she gave the money and precisely how much money she gave to each recipient. Furthermore, when pressed by Judge Austin about the "dead rats" money, she articulated a perfectly logical and sensible reason for making this gift to the orphans. This indicates strongly that she is not someone who has "lost her mind," but rather somebody who knows her own mind very well.
Just because Matilda is spending money in a way that Phillip does not like -- and in a way that could be seen as financially unsound -- does not mean that she needs a guardian. See Cassandra G. Jones, Facing a Guardianship? You Are Not Alone, HOUGHTON JONES BLOG, Sept. 18, 2012, http://hou2plan.com/lawyer/2012/09/18/Elder_Law/Facing_a_Guardianship___You_are_Not_Alone._bl5247.htm ("Mismanagement of funds by itself is generally not grounds for a guardianship. A competent adult has the constitutional right to make bad decisions."). Even if the donations were dramatically reducing Matilda's financial situation -- which is not the case here -- a guardianship under Article 81 still would not be guaranteed. See, e.g., In re David C., 742 N.Y.S.2d 336 (2d Dep't 2002) ("[A] precarious housing situation and meager financial resources do not, without more, constitute proof of incapacity such that a guardian is warranted under Mental Hygiene Law §81.02.").
Regarding Matilda's refusal to discuss personal financial matters with Phillip, this is likewise not an indication that Matilda actually lacks capacity. Indeed, at least one New York court has found that an allegedly incapacitated person's refusal to disclose financial information "may be some indication of awareness as opposed to incapacity." In re Parker, 619 N.Y.S.2d 238, 239 (Onondaga Cnty. Sup. Ct.1994). The same principle applies here. Matilda is lawfully permitted to withhold this highly personal information without this choice being used against her as a sign of incompetence.
Matilda's decision to feed the bluebirds indoors on her parlor floor could be seen as unsanitary. However, nothing indicates that she is living in filthy or otherwise dangerous conditions. Perhaps one of her butler's household duties involves cleaning up after the birds each day. Similarly, Matilda's decision to use the train set to bring people their meals, while eccentric, does not show that she cannot appreciate her actions and their consequences.
Concerns about Matilda living in such a large house are certainly understandable. Given that she is 81 years old and in somewhat frail physical condition, it is reasonable to believe that she might be better suited to live in a different environment. Again, though, the court must be cautious about substituting its own judgment for Matilda's right to make choices. Nothing indicates that Matilda has let her house fall into disrepair. Nor are there signs that Matilda is frequently injuring herself because she cannot manage in this large house. Stevens seems to do a fine job of looking after her and attending to her daily needs. Indeed, when Judge Austin and Harold Lloyd wanted to come over, Matilda did not shut them out, but instead invited them in and served them high tea. She also invited both of them to come back on Christmas Eve. Notably, the court evaluator's report makes a point of stating that Matilda seems to be living quite well in a clean, safe environment.
Matilda potentially could benefit from certain adaptations and alterations to the mansion that might help her "age in place" in greater safety and comfort. Yet in keeping with the principle that a guardian is a measure of last resort, this alone does not mean that she needs a guardian to exercise control over her decisions in this area. For now, she appears to have worked out arrangements so that she can function safely and comfortably in this familiar environment. Giving somebody guardianship power over her person, and thus allowing that guardian to remove Matilda from this environment or alter it without Matilda's consent merely because she might be better off with these changes, does not meet the purposes for which Article 81 was enacted. See, e.g., In re Eugenia M., 867 N.Y.S.2d 373 (2008) (denying the guardianship petition because although the allegedly incapacitated person lived in an apartment that needed several repairs, the flaws were not blatantly dangerous to her health, and she had acclimated to those particular flaws in a way that worked well for her).
Lastly, there is Matilda's relationship with Michael, Mario, and Jonathan to consider. Once again, Phillip's arguments in his petition seem unfounded. Matilda and her husband legally adopted Michael, Mario, and Jonathan, and raised them as their sons. It is perfectly understandable that Matilda should "dote on them" and trust them even though they had all been out of contact with her for a long time. This is not a sign of incapacity. Plenty of perfectly "sane" parents would do the same. Furthermore, there is no sign that Michael, Mario, or Jonathan are preying on Matilda in any way. In fact, they seem quite earnest in their statements that they will do anything to help her.
In addition, there are other facts which demonstrate that Matilda is aware of her decisions and their consequences. For instance, her choice to hire a private investigator to locate her sons was independently made and aimed at a specific desirable outcome. Likewise, her decision to tell the newspaper reporters that she needed her sons to come back and visit her on Christmas Eve proved to be a brilliant plan for reaching Michael, Mario, and Jonathan when she had no other way to contact them. These are rational, thoughtful, and even creative choices -- not the types of decisions one would expect from a person in need of a guardian.
In one notable case, the trial judge emphasized that guardianship "is not some pro forma legal vehicle to be used merely to perpetuate parental control of an incorrigible child." In re John Doe, 696 N.Y.S.2d 384, 386-87 (Nassau Cnty. Sup. Ct. 1999). By the same token, Phillip cannot be allowed to exploit a guardianship law just to "perpetuate control" over his aunt's behaviors because he finds her eccentric. Deprivations of an individual's constitutionally protected liberties should never be awarded lightly. Given the degree of capacity exhibited by Matilda in this case, it certainly should not be awarded here. Phillip's Article 81 petition should be denied.
IV Step Three: What Alternative Measure(s) May Be Proper Here?
Article 81 requires the court to consider alternatives to appointing a guardian, including but not limited to "visiting nurses, homemakers, home health aides, adult day care, trusts, and representative and protective payees." See N.Y. MENTAL HYG. LAW §81.03(e) (McKinney 2013). Guiding these decisions is the question of which measure is "the least restrictive alternative yet adequate to meet the (individual's) needs." See MENTAL HYG. LAW §81.01; MENTAL HYG. LAW §81.02(a)(2); see also In re Joseph V., 307 A.D.2d 469, 470 (App. Div. 3d Dep't 2003). This final section looks at which alternatives may be appropriate for Matilda in this case.
The most logical and least restrictive step here is to encourage Matilda to draft and execute advance directives, preferably with the help and guidance of an attorney. As already discussed above, Matilda certainly seems to possess the capacity necessary to execute a Will, a Health Care Proxy, and a Power of Attorney. With these validly executed directives stating her intentions in place, there should be no need for any dissension about appointing a guardian if Matilda ever does become incapacitated. It will allow Matilda's wishes to be not only expressed, but memorialized in legal documents.
Worthy of discussion, however, is the question of whom Matilda should appoint to positions of responsibility in these directives. Certainly, Phillip should not be chosen as Matilda's health care agent or attorney-in-fact, nor should he be selected as executor of her Will. The interactions between Matilda and Phillip demonstrate a definite apprehension, if not a complete lack of trust, between the two relatives. In addition, the fact that Phillip has rarely visited Matilda except when he wants to borrow money from her indicates that he may be more interested in helping himself than helping his aunt. Lastly, the fact that Phillip brought a guardianship proceeding against his aunt over her vehement objections sends up red flags against the notion of Phillip serving in any of these positions of trust and responsibility.
Matilda likely would be willing to appoint Michael, Mario, or Jonathan in these positions. The greatest challenge will be making her wishes known to these individuals who have been out of her life for a significant period of time. However, all three men have stated that they would help Matilda in any way that they can. Assuming that they do hold true to this promise, any one of these three individuals would probably say "yes" if asked by Matilda to serve.
The key hurdle, though, would be selecting which son would be best. The fact that a warrant is still pending for Mario's arrest probably eliminates him as a logical choice. If he ever came back to the States for a significant period, he would be arrested. This would not make him very useful to Matilda if she became incapacitated and needed him to make decisions on her behalf. Next, we look to Jonathan. He lacks Mario's criminal history, which is good. Yet his drinking is a concern. An even greater worry is his job, which constantly keeps him away from New York City. His itinerant lifestyle could be problematic if he should need to suddenly assume responsibility for Matilda.
This leaves Michael. His extravagant habits are a mark against him when it comes to being appointed as Matilda's attorney-in-fact. However, if appointed in this role, Michael would be under strict fiduciary obligations imposed by state law. See N.Y. GEN. OBLIG. LAW §5-1505 (McKinney 2013). This would require him to make financial transactions in his aunt's best interests, preventing him from abusing her finances. See N.Y. GEN. OBLIG. LAW §5-1505 (McKinney 2013) (establishing that the attorney-in-fact owes a fiduciary duty to the principal, and must enter into transactions only in the principal's best interests). What's more, the fact that Michael is extravagant with his own money does not mean that he will be the same way with his aunt's resources. Additionally, Michael lives in New York City, and plans to remain there with his new bride. Of the three sons, he resides closest to Matilda, and would presumably be the best person to have "on call" if his aunt needed him. Therefore, it seems that Michael would be the best choice among the three sons to be Matilda's attorney-in-fact and health care agent.
Other alternatives listed in Article 81 seem overly restrictive in these circumstances. Phillip might argue for appointment of a representative or protective payee, but the court definitely should not do so. The evidence described earlier shows that Matilda understands her finances and the details about how she is spending her own money. There is no determination that she cannot manage her funds on her own. Similarly, there is no current need for Matilda to have a home health aide or a visiting nurse, as she seems to be managing quite well with Stevens' assistance. Naturally, should her health later take a turn for the worse, these options can be re-visited.
Phillip chose the proper form of action in pursuing a guardianship under Article 81 of the Mental Health Law rather than Article 17-A of the Surrogate's Court Procedure Act. However, since Matilda did not consent to the guardianship and does not meet the criteria for incapacity under Article 81, Phillip's petition for guardianship should be denied.
Matilda would be well-advised to draft and execute advance directives in order to avoid a situation of this nature in the future. She has the capacity to do so, and it would be in her best interest to memorialize her wishes in these documents. Assuming that she would want to appoint one of her three adopted sons in these positions of responsibility, it appears that Michael, while not perfect, would be the most logical choice. However, should she wish to appoint a different son in any of these important roles, or somebody else entirely, she naturally could do so.