Matter of Loew

Citation: 2022 NY Slip Op 06436Docket: Index No. 500294/18 Appeal No. 16497-16498-16499 Case No. 2022-00247, 2022-00958, 2022-01285, 2022-02741

Court: Appellate Division of the Supreme Court of the State of New York; November 14, 2022; New York; State Appellate Court

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Alison Loew petitioned for the appointment of an article 81 guardian for her brother, Edgar Valentine Loew, on October 2, 2018, citing his mental health issues, physical limitations, and alleged financial exploitation by Rachida Naciri. Naciri countered with a cross petition to dismiss Alison's request or to be appointed as guardian herself. The court appointed a court evaluator, Gary Elias as Edgar's attorney, and Judy S. Mock as his temporary guardian. The evaluator, Britt Burner, conducted multiple interviews with Edgar, Naciri, and others connected to Edgar's care. During these interviews, it was revealed that Naciri and Edgar had entered into a prenuptial agreement shortly after the petition was filed, which promised her $10 million upon divorce and $20 million if Edgar passed away while married to her, despite her claims to the evaluator that marriage was not intended. The marriage occurred two days later, on October 18, 2018. Subsequent court orders led to the appointment of a Special Guardian for Edgar, removal of Mock as guardian, and discharge of Elias as counsel, prompting appeals from Naciri, Mock, and Elias.

Naciri did not inform Burner about her wedding to Edgar because she was unaware they would be marrying; she described Edgar's proposal as a surprise. Hicks, the sole wedding attendant, contradicted Naciri's account, stating she told Edgar she had a "surprise" but withheld details until they were at City Hall, where she announced her desire to marry him. When questioned by Burner, Edgar denied being married, claiming he had wed in Paris. Burner learned that Naciri frequently quizzed Edgar about personal details and attended his psychiatric sessions. Hicks noted that Naciri did not stay overnight with Edgar and typically visited briefly on holidays. Edgar gifted Naciri $90,000, which she claimed was his idea. In October 2018, a $600,000 transfer attempt from Edgar's investment account failed, and he had no recollection of it. A registered nurse reported that Naciri sometimes provoked Edgar, leading to abusive behavior, and other aides described her as "toxic," which upset Edgar and triggered violent episodes. Farley, the building’s managing agent, reported Edgar's erratic behaviors, such as urinating in hallways and wandering outside inappropriately. Friends expressed concern over Edgar’s declining health, with one, Melinda Pillon, recalling that he feared Naciri and had considered a restraining order, though he did not follow through. Pillon described Edgar's apartment as neglected during her last visit. Jackie Swiskey, a long-time friend, noted Edgar's mixed feelings about Naciri and his desire to revoke a financial agreement with her, which required legal assistance to terminate. Edgar had initially sought Alison to be his power of attorney but Naciri was appointed instead. Alison was informed by Pillon about Edgar's critical situation, but Naciri prevented her from entering his apartment, and the doorman later reported a home health aide fleeing in distress.

Edgar was taken to the hospital by police and involuntarily admitted to a psychiatric ward, where a doctor suggested he might have dementia. Naciri claimed to care for Edgar full-time, managing his daily needs and finances, and asserted that he appointed her as his power of attorney due to Alison's failure to complete necessary paperwork. Naciri's attorney informed Burner that she and Edgar had been considering marriage, with Edgar selecting the attorney for their prenuptial agreement. Naciri denied attending Edgar's psychiatric sessions and accused Burner's interviewed "friends" of seeking Edgar's money.

Burner, after interviewing Edgar on October 16, expressed concerns about his capacity to manage his finances and personal needs, indicating he might suffer harm without a guardian. She reported Edgar's lack of engagement during their meetings, often remaining mute and unresponsive, and doubted his ability to participate meaningfully in court proceedings. In a supplemental report from February 2019, Burner noted slight improvements in Edgar's living conditions but observed he remained confused and susceptible to manipulation. She recommended appointing a guardian for Edgar indefinitely, investigating the legitimacy of his prenuptial agreement and financial transactions, and appointing a geriatric care manager.

On February 14, 2019, Judge Tanya R. Kennedy began a hearing to assess Edgar's need for a guardian, emphasizing that the focus was solely on his guardianship, not the prenuptial agreement. The judge found Edgar lacked the capacity to consent to a guardian, citing his inability to recognize familiar faces, confusion about his situation, and nonresponsive answers to court inquiries. During a continued hearing on May 6, 2019, Edgar displayed similar confusion regarding his surroundings and the purpose of the proceedings.

Edgar mistakenly identified Mock as his wife and exhibited confusion regarding his guardianship and personal care. He lacked clear understanding of his age and care management, though he was aware of one bank account. Samantha Fox, a geriatric care manager, testified about Edgar’s short-term memory loss and inability to care for himself or manage finances. Following the hearing, the court approved Alison's petition for guardianship, appointing Mock as the guardian of Edgar's person and property, with a specific order dated September 23, 2019, allowing Mock to provide a monthly stipend of $2,000 for Edgar's personal expenses but prohibiting other payments, including spousal support to Naciri.

Despite Edgar being declared incapacitated, appellants (Naciri, Mock, and Elias) argued that Judge Kennedy intended for Edgar to retain some financial autonomy. Alison, however, accused Naciri of exploiting Edgar and sought judicial protection for him. Mock submitted a final account as temporary guardian revealing substantial personal expenses charged by Naciri and significant payments from Edgar's assets. Alison challenged the accounting, prompting her request for visitation and an investigation into Edgar's marriage to Naciri, which she deemed fraudulent, claiming Mock and Elias neglected their fiduciary duties.

Mock maintained her position that she had no obligation to investigate the marriage or prenuptial agreement under her appointment order, which she interpreted as limiting her actions. Alison's efforts to reappoint a court evaluator to look into these matters were met with opposition from Naciri, but not from Mock or Elias. The new judge, Hon. Carol Sharpe, noted that while certain issues raised in previous reports were not to be addressed during capacity hearings, they were to be handled by the appointed guardian.

Judge Sharpe outlined key findings regarding the issues surrounding Edgar's marriage and prenuptial agreement, emphasizing the need for further investigation into financial expenditures and Edgar's current living situation in a home. The court appointed Lissett C. Ferreira as a special guardian on August 24, 2021, allowing her limited powers to investigate Edgar's potential discharge to his community residence, the circumstances of his marriage and prenuptial agreement, and financial transactions related to his guardianship over the previous five years. 

From November 2021 to February 2022, contentious litigation ensued, with Ferreira filing a motion on January 13, 2022, to remove existing guardians Mock and Elias, claiming they had conflicts of interest and failed to act in Edgar’s best interests. Alison supported Ferreira’s motion. In response, Naciri moved to remove Ferreira, arguing she was causing Edgar distress and that Edgar preferred Mock and Elias as his fiduciaries. 

On February 1, 2022, during a court session regarding Ferreira's motion, it was revealed that Edgar had been hospitalized, prompting the court to assess whether he could safely return to his apartment or should go back to the assisted living facility (ALF). The court ordered Fox, Edgar's geriatric care manager, to provide a report on his living situation, stressing the guardian's responsibility to investigate and arrange Edgar's discharge. Subsequent correspondence indicated that while it was deemed feasible for Edgar to return home, Mock’s attorney later informed the court he would instead be released to the ALF.

Mock's decision to discharge Edgar to an Assisted Living Facility (ALF) lacked explanation despite recommendations against it. Mock's attorney informed the court that Edgar wished to return to the ALF but did not clarify the reasoning behind this choice. Correspondence highlighted confusion among healthcare professionals regarding who had the authority to decide Edgar's discharge, leading to concerns about the status of his discharge. On February 24, Mock's attorney requested a court order to facilitate Edgar's transfer to the ALF, but Mock failed to provide a comprehensive rationale for this decision.

Alison's attorney expressed concern about a lack of communication regarding Edgar's care, particularly his end-of-life status. Following these developments, the Supreme Court issued an order on February 24, 2022, removing Mock and discharging Elias, citing their neglect of Edgar's best interests and their focus on unrelated litigation matters. The court appointed Ferreira as a special guardian to investigate Edgar's circumstances, including his financial situation and need for quality care at home, as he had the means to secure it. 

The court noted a "dangerous situation" had arisen, necessitating immediate removal of Mock and Elias. A new attorney and successor guardian for Edgar were appointed on March 8, 2022, with the order being part of the ongoing appeal. During the appeal process, a stay was granted pending a hearing on Ferreira's motion, which was later scheduled despite challenges from appellants. 

Alison's standing in the article 81 proceeding was upheld, affirming her status as someone concerned with Edgar's welfare, regardless of any estrangement. She retains the right to participate in further proceedings regarding the guardian's discharge or modification of powers and to seek collateral relief related to the investigation of the alleged sham marriage.

Naciri's assertion that Alison lacks standing to annul her marriage to Edgar misapplies Domestic Relations Law §140 (c). The court clarifies that Alison's petition was not aimed at annulling Edgar's marriage but rather sought relief from the guardian due to Mock's inadequate investigation regarding the marriage's annulment. An article 81 guardian has the authority to manage an individual’s property, including marriage contracts, and can pursue annulment if the individual is deemed incapable of understanding the marriage's implications. 

The court rejects the appellants' claim that the appointment of a special guardian violated Edgar's due process rights, noting that it stemmed from Alison's motion for an independent investigation, of which the appellants were aware. The appellants' argument against appointing a "special guardian" is dismissed, as Ferreira, despite her title, served as an independent investigator with specific, limited duties, not as a guardian responsible for managing Edgar's assets or making decisions. Ferreira was tasked with investigating the circumstances of Edgar's marriage and why he was placed in an assisted living facility despite having sufficient resources for better care. 

Concerns about Naciri's misuse of Edgar's credit cards for personal expenses were raised but not investigated by Mock. The court found no legal basis preventing the investigation ordered by the court, which was necessary to protect Edgar's interests. The appellants' claim that Ferreira's appointment harmed Edgar's health was also rejected, as the investigation did not conflict with the existing guardian's authority. 

Procedurally, appellants argued that the motion to remove Mock and discharge Elias was decided too early and without a hearing. However, the court determined that the motion had been sufficiently briefed by that time, and the lack of a reply from Ferreira did not prejudice the appellants, who were not entitled to submit a surreply. Thus, the court affirmed the decision to remove Mock as guardian and discharge Elias.

The Mental Hygiene Law does not grant appellants the right to a testimonial hearing prior to their removal. According to Mental Hygiene Law § 81.35, a guardian can be removed for noncompliance, misconduct, or other justifiable reasons determined by the court, without a statutory requirement for a hearing. This contrasts with Mental Hygiene Law § 81.11(a), which mandates a hearing for the appointment of a guardian when the liberty interests of the individual are at stake. A guardian lacks a "property interest" to protect, which means they do not possess a due process right to a full hearing before removal. In this case, the court had sufficient information and undisputed facts to justify the removal of Mock and Elias without a hearing, as they had ample opportunity to present their arguments.

The court exercised its discretion appropriately in discharging Mock and Elias based on undisputed facts, including Mock's failure to investigate the legitimacy of Edgar’s marriage and prenuptial agreement. Concerns were raised regarding Edgar’s competency at the time of these actions, and Mock's defense, based solely on Edgar's preferences, was inadequate. The guardian has an obligation to investigate potential financial abuse and ensure that actions taken are in the best interest of the individual, which Mock failed to do. Additionally, Mock did not comply with a court order to assess Edgar's safe discharge options, demonstrating further neglect of her responsibilities.

The court determined that an evaluation was necessary to understand why Edgar, despite his significant financial resources, could not be cared for at home. This finding justified the removal of Judy S. Mock as guardian and the discharge of Gary Elias as counsel, prioritizing Edgar's best interests as supported by legal precedent and the Mental Hygiene Law. Following Mock's removal, the appointment of a successor guardian was essential, leading to the appointment of Donald Duboulay as successor counsel and Katherine B. Huang as successor guardian. Mock's claim that her removal stemmed from Judge Sharpe’s personal bias was unsupported by the record. The appeal regarding the trial court's June 21, 2022 order was dismissed as moot since no hearing was conducted on the relevant issues. The orders from August 24, 2021, February 24, 2022, and March 8, 2022, which included the appointments and removals, were affirmed without costs. The appeal from the June 21, 2022 order was also dismissed as moot, with all justices concurring.