Supreme Court, Nassau County, May 21, 2021

Rosenthal Law LLC, Garden City (Elisa Strassler Rosenthal of counsel), and Seltzer Sussman Habermann & Heitner LLP, Jericho (Brian R. Heitner of counsel), court-appointed counsel for Nancy K., respondent.

Nassau County Department of Social Services, Uniondale (David Zachary Carl of counsel), for petitioner.

Novick & Associates, P.C., Huntington (Donald Novick, Kimberly Arlen Schechter and Albert Vincent Messina of counsel), for cross-petitioner.

Edward Francis Cunningham, Garden City, Court Evaluator.

The Weinstein Group, P.C., Syosset (Lloyd Jeffrey Weinstein of counsel), Temporary Guardian.

This court has been presented with an issue of apparent first impression in a Mental Hygiene Law article 81 guardianship proceeding which has arisen during direct examination of Alexander von Kiel, Esq., the attorney who drafted a power of attorney and living will executed by the alleged incapacitated person, Nancy K.: whether the temporary guardian and court-appointed counsel for the alleged incapacitated person could waive, and did waive, by their advocacy on behalf of the alleged incapacitated person in this proceeding, the protective cloak of the evidentiary attorney-client privilege between Nancy K. and von Kiel.{**72 Misc 3d at 531}

CPLR 4503, the codification of the attorney-client privilege, and article 81 of the Mental Hygiene Law, do not specifically address, at any stage of a proceeding, whether a temporary guardian, or court-appointed counsel to the alleged incapacitated person, has the authority to waive the attorney-client privilege on behalf of the alleged incapacitated person. During von Kiel's direct examination by cross-petitioner's attorney (cross-examination by counsel for Nancy K. has yet to begin), court-appointed counsel for Nancy K. invoked the attorney-client privilege and objected to the beginning of a line of questioning to von Kiel about conversations von Kiel had with Nancy K. pertaining to the advance directives he prepared. This court sustained the objection by counsel for Nancy K., and prohibited questions pertaining to inter alia all conversations von Kiel had with Nancy K. regarding the preparation and execution of a power of [*2]attorney and living will. Although the reasons for the ruling were orally spread on the record, the court has taken this opportunity, in view of cross-petitioner's counsel's post-ruling letter submission elaborating on a case he cited in support of the waiver of the attorney-client privilege, to formally reduce its oral decision on the record to a written order. The court notes that it has not deemed the letter from cross-petitioner's counsel to be a motion to reargue the court's ruling.

This proceeding, commenced by the Commissioner of the Nassau County Department of Social Services pursuant to article 81 of the Mental Hygiene Law, seeks a judgment appointing an independent guardian for the personal needs and property management of Nancy K., an alleged incapacitated person (AIP). The petition also seeks to set aside and void the advance directives executed on October 8, 2019, and to void the marriage entered into on November 6, 2020, between Nancy K. and the cross-petitioner, William McEnaney.

Upon the presentation of the order to show cause and after reviewing the serious allegations in the 50-plus page petition, this court appointed a temporary guardian pursuant to Mental Hygiene Law § 81.23, an attorney for the alleged incapacitated person pursuant to Mental Hygiene Law § 81.10 (c), and a court evaluator pursuant to Mental Hygiene Law § 81.09 (a).

The cross-petition seeks to dismiss the petition and permit the cross-petitioner to be appointed guardian for the AIP. Cross-petitioner alternatively seeks, if the court determines that an independent person should be appointed the guardian of the{**72 Misc 3d at 532} person and property of the AIP, that the temporary guardian, Lloyd Weinstein, Esq., be removed and not be appointed a permanent guardian, and that either the court appoint an independent guardian or appoint cross-petitioner as guardian of the person and property of the AIP, with the power to handle her property management affairs and determine her medical and personal care.

The cross-petitioner, through his attorney, conceded during the hearing of this proceeding that Nancy K. is presently incapacitated and in need of a guardian.

This court, in an order dated April 15, 2021 (71 Misc 3d 1217[A], 2021 NY Slip Op 50401[U] [Sup Ct, Nassau County 2021, Knobel, J.]), found that the health care proxy prepared by von Kiel and signed by the AIP is void.

The main issues which remain to be determined by this court are whether Nancy K. had capacity when the power of attorney and living will were executed, whether Nancy K. had capacity when she and the cross-petitioner were married by the City Manager of Long Beach on November 6, 2020, and whether the cross-petitioner or a family member or an independent fiduciary qualified to be a guardian should be the guardian, or a guardian, for the personal needs and property management of Nancy K.

Cross-petitioner's counsel contended at trial, and argues in his letter to the court that permitting von Kiel to testify "about conversations he had with Nancy K. [regarding the power of attorney and living will] would provide relevant evidence regarding her intentions and her mental capacity at that time." Counsel relies on a Nassau County Surrogate's Court decision which permitted disclosure of a decedent's conversations with her attorney to resolve a dispute over a will (see Matter of Bronner, 7 Misc 3d 1023[A], 2005 NY Slip Op 50705[U] [Sur Ct, Nassau County 2005]) to support his argument that Nancy K. "would want the confidentiality of those communications [with von Kiel] to be lifted to assist the Court in the determination of whether the power of attorney is valid and, if so, whether the Court should refrain from appointing a property guardian based upon this advance directive."

Counsel's arguments are not applicable to the unique nature of an article 81 proceeding. A guardianship proceeding, seeking the appointment of a guardian and setting aside advance directives on the ground that the alleged incapacitated person did not have capacity at the time of their execution, is not analogous{**72 Misc 3d at 533} to a will contest in Surrogate's Court. This court recognizes that the invocation of the attorney-client privilege, or any evidentiary privilege, can constitute "an 'obstacle' to the truth-finding process" and function of the court (see Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 624 [2016], quoting Matter of Jacqueline F., 47 NY2d 215, 219 [1979]).

However, what is analogous within the context and confines of an article 81 guardianship proceeding is the doctor-patient privilege, which can only be waived, according to [*3]the precedent established by the Appellate Division, Second Department in 2003, if the alleged incapacitated person waives the privilege, or affirmatively places his or her mental condition in issue by contesting the allegations against him or her and affirmatively asserting his or her mental condition at trial (see Matter of Rosa B.-S. [William M.B.], 1 AD3d 355, 356 [2d Dept 2003]).

"Since the reign of Elizabeth I" (Matter of Jacqueline F., 47 NY2d 215, 218 [1979]), the common-law evidentiary rule of the attorney-client privilege forbids the attorney from disclosing communications made to him or her by a client, for the purpose of obtaining or facilitating legal advice, during his or her professional employment relationship with that individual (see Ambac Assur. Corp. v Countrywide Home Loans, Inc. at 623). This privilege, codified in CPLR 4503 (a) (1), "fosters the open dialogue between lawyer and client that is deemed essential to effective representation" (see Ambac Assur. Corp. v Countrywide Home Loans, Inc. at 623, quoting Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]). "Unless the client waives the privilege, evidence of a confidential communication shall not be disclosed in any action (see CPLR 4503 [a] [1])" (Saran v Chelsea GCA Realty Partnership, L.P., 174 AD3d 759, 760 [2d Dept 2019]).

Neither the codification of the attorney-client privilege in CPLR 4503, nor the vast powers and authority conveyed upon a guardian pursuant to article 81 of the Mental Hygiene Law, specifically address the invocation or waiver by a temporary guardian, or counsel to the alleged incapacitated person, of the attorney-client privilege which exists between an alleged incapacitated person and her (or his) prior attorney.

CPLR 4503 (a) states in relevant part:

"1. Confidential Communication Privileged. Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without{**72 Misc 3d at 534} the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local governmental agency or by the legislature or any committee or body thereof . . .

"2. Personal Representatives. (A) For purposes of the attorney-client privilege, if the client is a personal representative and the attorney represents the personal representative in that capacity, in the absence of an agreement between the attorney and the personal representative to the contrary: . . .

"(B) For purposes of this paragraph, 'personal representative' shall mean (i) the administrator, administrator c.t.a., ancillary administrator, executor, preliminary executor, temporary administrator, lifetime trustee or trustee to whom letters have been issued within the meaning of subdivision thirty-four of section one hundred three of the surrogate's court procedure act, and (ii) the guardian of an incapacitated communicant if and to the extent that the order appointing such guardian under subdivision (c) of section 81.16 of the mental hygiene law or any subsequent order of any court expressly provides that the guardian is to be the personal representative of the incapacitated communicant for purposes of this section" (emphasis added).

Article 81 of Mental Hygiene Law provides a permanent guardian or a temporary guardian with the same but specified broad authority to inter alia enter into contracts and legal relationships. Mental Hygiene Law § 81.16 (c) (2) simply states that

"[i]f the person alleged to be incapacitated is found to be incapacitated and the court determines that the appointment of a guardian is necessary, the order of the court shall be designed to accomplish the least restrictive form of intervention by appointing a guardian with powers limited to those which the court has found necessary to assist the incapacitated{**72 Misc 3d at 535} person in providing for personal needs and/or property management."

As to temporary guardians, Mental Hygiene Law § 81.23 (a) (1) provides that

"[a]t the commencement of the proceeding or at any subsequent stage of the proceeding prior to the appointment of a guardian, the court may, upon showing of danger in the reasonably foreseeable future to the health and well being of the alleged incapacitated person, or danger of waste, misappropriation, or loss of the property of the alleged incapacitated person, appoint a temporary guardian for a period not to extend beyond the date of the issuance of the commission to a guardian appointed pursuant to this article. The powers and duties of the temporary guardian shall be specifically enumerated in the order of appointment and are limited in the same manner as are the powers of a guardian appointed pursuant to this article."

This court finds that neither the temporary guardian for Nancy K., the alleged incapacitated person, or court-appointed counsel for Nancy K., have waived on behalf of Nancy K. the attorney-client privilege. Neither have affirmatively placed the subject matter of the privileged communications between von Kiel and Nancy K. in issue. The petition alleges serious improprieties and overreaching by the cross-petitioner, and invoking the attorney-client privilege and cross-examining cross-petitioner's witnesses on behalf of an alleged incapacitated person, whose best interests and personal civil liberties are at stake, do not constitute the waiver of the attorney-client privilege between von Kiel and Nancy K.

The court notes that although generally communications made in the presence of third parties are not privileged from disclosure because they are not deemed confidential, statements made to the agents of the attorney or client retain their confidential or privileged character where the presence of third parties is deemed necessary to enable the attorney-client communication, and the client has a reasonable expectation of confidentiality (see Ambac Assur. Corp. v Countrywide Home Loans, Inc. at 624).

Accordingly, this court further finds that the presence of witnesses to the execution of the subject advance directives did not waive the attorney-client privilege since the presence of these third parties are deemed necessary to enable the attorney-client communication and the alleged incapacitated{**72 Misc 3d at 536} person would have a reasonable expectation that the confidential nature of her communication with her attorney would be maintained (see Ambac Assur. Corp. v Countrywide Home Loans, Inc.).