Every parent knows that the costs to raise a child can be mind-numbing. No attempts at financial planning can truly prepare parents for every cost associated with child rearing. From diapers and formula to football camp and college, children are expensive. CNN Money estimates the cost to raise a child over 18 years to be $245,340.00. As the NYC metropolitan area is among the most expensive places to live in America and Westchester has the highest property taxes in the country, it is likely that the cost Continue reading
Guardianships Under Article 81 of the Mental Hygiene Law: The Basics
By: Gary E. Bashian, Esq.*
“Non nobis solum nati sumus (Not for ourselves alone are we born)”
― Cicero
Over the past decade, many practitioners have found that there has been an ever-growing need to assist clients with the long-term personal and financial care of a family member or close friend who, due to aging, injury, and/or physical or mental decline, can no longer take care of themselves.
Although there are many ways to address this issue involving joint efforts between healthcare providers, counsel, family, and friends, there is no more effective way to protect an incapacitated person’s rights than having a Guardian appointed for them pursuant to Article 81 of New York’s Mental Hygiene Law.
Enacted in 1993, Article 81 of the Mental Hygiene Law revolutionized the way that State and the Judiciary approached the appointment of a person, or persons, to be the officially recognized decision maker for another who is unable to make financial and/or personal healthcare decisions for themselves. Unlike “Conservatorships” under the prior law, where a person suffered the stigma of being deemed judicially “incompetent,” a “Guardianship” allows for greater flexibility and compassion in dealing with the needs of incapacitated people. Recognizing that the “needs of persons with incapacities are as diverse and complex as they are unique to the individual,”[1] the legislature purposefully designed a means by which the dignity and self-determination of an incapacitated person in need of care could be preserved to the greatest degree possible.
The statute states that “[a] Guardian will be appointed only where it is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person; and that the person agrees to the appointment, or that the person is incapacitated…”[2] An individual is considered “incapacitated” if it is proven, by clear and convincing evidence, that they are likely to suffer harm because they are “unable to provide for personal needs and/or property management; and the person cannot adequately understand and appreciate the nature and consequences of such inability.”[3]
The Article 81 Court manages this by developing an individualized assessment of the functional daily needs and activities of the incapacitated person (the “IP”), and then granting an appointed Guardian the power to intervene and act on behalf of the IP, but in the least restrictive form possible given the situation and circumstances. However, this tailor-made plan does not happen overnight; it involves the cooperation of many parties, can involve significant costs, and is largely achieved by following the expansive procedural framework set forth within Article 81 itself.
An Article 81 Guardianship Proceeding is commenced by filing a Petition with an attendant Order to Show Cause.[4] “Any individual over eighteen years of age, or any parent under eighteen years of age, who is found by the court to be suitable to exercise the powers necessary to assist the incapacitated person”[5] has standing to seek appointment as a Guardian. Guardians may be appointed over the Person and/or Property of an IP[6]. The Petition, a form that can be obtained from the State Court website, must contain specified language and information that informs the Court about the Person Alleged to be Incapacitated (the “AIP”)[7], the Petitioning party, and the facts that support the need for the appointment of a Guardian. There is no need or requirement for a medical doctor’s supporting Affidavit.
The Petition, or Cross-Petition by another person with standing who objects to the appointment of the Petitioner, can be supported by further evidence if necessary, such as Supporting Affirmations and/or Affidavits. The Order to Show Cause must also include required, formal language that the Court will revise as necessary given the situation and circumstances. In the Order to Show Cause, the Court may appoint a Court Evaluator, and, in the event that the AIP does not have private Counsel, will appoint Mental Hygiene Legal Services as attorney for the AIP to protect the AIP’s rights. The Order to Show Cause will also direct the means of service, the specific documents to be served, and the interested parties to be served, based on the information offered in the Petition. Lastly, the Order to Show Cause will set a Hearing date, which by statute must be within thirty (30) days of the signing of the Order to Show Cause[8].
Where there are antagonistic and differing interests in a Guardianship Proceeding, a conclusion by the Court Evaluator that the AIP does not need a Guardian or that the Petitioner should not be appointed; and/or where the AIP, through their counsel, voices objections to the appointment of a Guardian, a contested Hearing will result. In order to avoid this it is always the best practice for counsel to reach out to the various parties and attorneys involved to determine whether or not it will be a contested or compromised proceeding[9].
The Court Evaluator will interview the AIP and the other interested parties, and prepare a report to review by the Guardianship Judge. Though not binding, the Evaluator’s report is usually persuasive as the Evaluator has contact with all of the parties, is experienced in Guardianship matters, and is trusted by the Court to provide an honest and forthright appraisal of the AIP’s situation. Importantly, the Evaluator’s report is only available for review by the parties for a brief period of time before the Hearing, and it is critical that it be carefully reviewed by counsel beforehand so that the Evaluator’s position, and reasoning, as offered to the Court is known.
Often, the parties concerns for the AIP are a common ground which – even if there is bitter disagreement about how the AIP should be cared for, and who should care for the AIP – should be used as a starting point for discussion and negotiation. No matter how heated or adversarial that these proceedings may become – and they can often be very acrimonious – so long as the parties involved keep in mind that they are in Court to protect the best interests of the AIP, some form of compromise can often be achieved pre-Hearing. Many Guardianship Parts encourage out of Court discussions between the interested parties so that any issues that can be resolved without Court intervention are addressed before the Hearing even takes place. Any compromises that can be reached will result in a shorter Hearing, and each party having at least some of the issues that they have voiced resolved.
As indicated above, the parties will have the opportunity to review the Evaluator’s report before the Hearing, and, depending on the County, there is a pre-Hearing conference with the Guardianship Judge, Counsel, the Evaluator and any other parties (usually State or County representatives) that can provide insight into the facts. This pre-Hearing conference is another opportunity for the Court to learn more about the AIP, their situation, and the parties that seek to be appointed Guardian. These pre-Hearing conferences typically involve comprehensive discussions about the respective parties’ positions, and the practical needs of the AIP. Although the formal Hearing is the official forum where the Guardianship Judge renders their opinion, have no doubt that the pre-Hearing conference is an essential part of the process, and one that can have can be very fruitful if handled correctly by well-prepared counsel who can clearly and succinctly present their case to the Court.
After the pre-Hearing conference, if a compromise is still not reached, then the parties will proceed to the formal, Judicial Hearing. Witnesses may be called, evidence introduced[10], and the Court will hear the arguments of each respective party. The AIP will almost always be present, unless there the Court is offered a good reason why they should not appear, and has granted permission that they can be absent.[11] Importantly, these Hearings do not need to strictly comply with the CPLR rules of evidence, and are very different from a normal Hearing or Trial.
Post-Hearing, if the Guardianship Judge deems the AIP to be an “Incapacitated Person” in need of a Guardian, one will be appointed. Thereafter, the Court will issue a “Findings of Fact, Conclusions of Law, and Judgment” which outlines the Hearing, the powers granted to the Guardian, and is then reduced to a written “Commission” that grants the newly appointed Guardian the authority to act, and specifies the scope of their powers. Once this process is complete, the real work of providing short and long term care of the IP begins, an undertaking where the Guardian is held to a strict fiduciary duty of care, and must periodically report/account to the Court regarding the care and both physical and financial health of their newly appointed “ward,” the IP.
*Gary E. Bashian is a partner in the law firm of Bashian & Farber, LLP with offices in White Plains, New York and Greenwich, Connecticut. Mr. Bashian is a past President of the Westchester County Bar Association, he is presently on the Executive Committee of the New York State Bar Association’s Trust and Estates Law Section, is a past Chair of the Westchester County Bar Association’s Trusts & Estates Section, past Chair of the Westchester County Bar Association’s Tax Section, and a member of the New York State Bar association’s Commercial and Federal Litigation Section.
Mr. Bashian gratefully acknowledges the contributions of Andrew Frisenda, an associate at Bashian & Farber, LLP for his assistance in the composition of this article.
[1] MHL 81.01
[2] MHL 81.02 (a)
[3] MHL 81.02 (b)
[4] MHL 81.07
[5] MHL 81.19. Note: MHL 81.19 also carves out standing rights for Corporations as well.
[6] The statute was recently amended to specifically allow an attorney to be a petitioning party.
[7] Before a person is adjudged to be an incapacitated Person, or an “IP,” they are referred to as a person Alleged to be Incapacitated, or “AIP.”
[8] MHL 80.07[b][1]
[9] Discussions between the Court Evaluator, Mental Hygiene Legal Services, Petitioner, and/or Cross-Petitioner will often result in a compromise. However, if no compromise can be reached, the Court will usually appoint a non-affiliated person as Guardian (see infra).
[10] Note: CPLR Discovery is not allowed in Article 81 Proceedings.
[11] Clearly this Hearing involves more than this brief overview, but for purposes of this brief article the intricacies of the Guardianship Hearing will not be addressed in detail.
Constructive Trusts and the “Elastic” Power of Equity
Law without principle is not law; law without justice is of limited value. Since adherence to principles of “law” does not invariably produce justice, equity is necessary.
- Aristotle, Nicomachean Ethics
By Gary E. Bashian*
Perhaps because of their equitable, ancient, and amorphous nature, Constructive Trusts are often misunderstood by both advocates and, on occasion, the judiciary itself. Nevertheless, though rooted in age old equitable principles, Constructive Trusts have many applications; are not to be underestimated or overlooked; and can prove invaluable tools for Trusts and Estates litigators when and where they are properly used.
Preliminarily, it must be noted that the very purpose of a Constructive Trust as a remedy is often misconstrued. Constructive Trusts may be able to do many things, but the doctrine is limited insofar as it is not an “intent enforcing” mechanism, but rather a “fraud rectifying” device[i]. Advocates sometimes overlook this important distinction and seek the imposition of a Constructive Trust to enforce the stated, or presumed, intentions of an individual or entity, only to be met with dismissal either pre-answer or upon Summary Judgment as it is simply not within the power of a Constructive Trust to force a Defendant’s compliance with an unfulfilled promise.
Indeed, it is sometimes helpful to think of Constructive Trusts as a Cause of Action sounding in Fraud, but one that is subject to equitable review because some essential element necessary to sustain a Cause of Action for Fraud is not present. As Constructive Trusts are often used as Fraud rectifying devices, it should come as no surprise that the applicable Statute of Limitations is six years, with a discovery rule based on the wrongful/proper “taking” analysis used in a conversion action[ii]. A similar, but slightly different way of thinking about Constructive Trusts as a Fraud rectifying device, is to consider it as an equitable tool for preventing Unjust Enrichment[iii].
Generally, Constructive Trusts fall into one of two types.
- The first common situation where the imposition of a Constructive Trust is appropriate is where one party has an equitable interest in an asset, but does not have legal title. Upon the party’s attempt to enforce their equitable interests, the legal title holder refuses to acknowledge that the non-title holder has any rights. A good example of this situation is where one party invests monies in a real property, the deed is in another party’s name, and legal owner of the real property thereafter denies the other party access, use, and/or rights to the real property[iv].
- The second common type of Constructive Trust is where title of an asset is transferred from one party to another based on the promise that it will be returned[v], or turned over to a rightful beneficiary, at a later time. Thereafter, when the party who no longer has, or can claim, legal title to the asset demands its return, the legal title holder refuses, and retains the asset in their sole ownership.
In order to establish these two common types of Constructive Trusts, a Plaintiff must plead, and subsequently prove, that:
- A confidential and/or fiduciary relationship existed between the parties at issue;
- Defendant made either an express or implied promise;
- A transfer was effected by the Defendant’s Promise; and
- The Defendant was unjustly enriched by said transfer.
However, a Plaintiff is not strictly bound by these elements, nor are Constructive Trusts restricted to the two most common examples described above. Equity, after all, has evolved throughout the history of Jurisprudence to ensure justice when and where the rigid formalism of the law cannot. Indeed, given the nature of an equitable action and the fact that a Constructive Trust is primarily a device to prevent Unjust Enrichment, the Courts have allowed flexibility in the pleading standards of a Constructive Trust, i.e.: a Plaintiff need not necessarily prove each element, nor must the facts rigidly conform to the above listed elements. As the Court of Appeals has made clear that when applying Constructive Trusts: “[t]he equity of the transaction must shape the measure of relief”[vi], thus allowing the doctrine of Constructive Trusts to remedy a myriad of wrongs in many situations where the power of equity is appropriately used.
Nevertheless, just because the Court has the equitable power to apply Constructive Trusts in a host of situations, does not mean that they have not had issues determining the limitations of the doctrine, or the standards required to plead and prove why a Constructive Trust should be imposed.
In Bower v Bower[vii], the Monroe County Supreme Court offered a thoughtful and detailed discussion about the “conundrum” the Court faces when asked to impose a Constructive Trust outside the more familiar and commonplace fact patterns. Recognizing the “elasticity” of equity, and being guided by the broad powers outlined by the Court of appeals in Simonds v Simonds[viii], the Court characterized Constructive Trusts as creatures of “[u]nfettered equity” which “converts the doctrine of a constructive trust into a subjective judicial judgment about the fundamental ‘fairness’ of a transaction.”
Ultimately, the Supreme Court’s analysis is that Constructive Trusts are a loose, equitable framework within which the Court identifies wrongdoing, determines damages in terms of the degree to which a Defendant was unjustly enriched, and orders restitution to the Plaintiff so as to prevent the Defendant from receiving a benefit from their wrongdoing.
Though it was not without hesitation that the Court defined Constructive Trusts in this manner – nor without concern or consideration as to how the Court should address the burden of proof; standards of proof; or even the absence of one or more of the accepted elements of the cause of action given the ill-defined boundaries of the doctrine – but its analysis about the nature of the Constructive Trust Doctrine, and the power which it affords the Court to ensure that substantial justice is achieved, could not be more incisive or apt.
As a legal doctrine, Constructive Trusts can offer an effective means to protect a client’s equitable rights. The broad and powerful nature of this form of relief cannot be discounted, and should always be considered where and when, in the presence of unjust enrichment, a more commonplace or familiar remedy simply cannot right the wrong that has been done.
*Gary E. Bashian is a partner in the law firm of Bashian & Farber, LLP with offices in White Plains, New York and Greenwich, Connecticut. Mr. Bashian is a past President of the Westchester County Bar Association, he is presently on the Executive Committee of the New York State Bar Association’s Trust and Estates Law Section, is a past Chair of the Westchester County Bar Association’s Trusts & Estates Section, past Chair of the Westchester County Bar Association’s Tax Section, and a member of the New York State Bar association’s Commercial and Federal Litigation Section.
Mr. Bashian gratefully acknowledges the contributions of Andrew Frisenda, a Sr. Associate of Bashian & Farber, LLP, for his assistance in the composition of this article.
[i] Bankers Security Life Insurance Society v Shakerdge, 49 Ny2d 939 [1980]
[ii] Sitkowski v Petzing, 175 AD2d 801 [2nd Dept 1991]
[iii] Sharp v Kosmalski, 40 N.Y.2d 119 [1976]
[iv] see generally Washington v Defense, 149 AD2d 697 [App Div 2nd Dept 1989]
[v] see generally Farano v Stephanelli, 7 AD2d 420 [App Div 1st Dept 1959]
[vi] Simonds v Simonds, 45 NY2d 233 [1978]
[vii] Bower v Bower, 42 Misc.3d 1231(A) [Monroe Sup Ct 2014]
[viii] ibid
How to Prepare for a New York State Department of Labor Audit
By: Jillian Markowitz, Esq.
Few things frighten business owners more than a notice from the New York State Department of Labor stating that they have been selected for an Audit. Not only do Audits require the preparation of voluminous documents to be reviewed by the Examiner assigned to the case, but they can also result in severe liability, including drastic penalties and fines that have the potential to put small companies out of business. Accordingly, it is imperative that an attorney or accountant retained to defend such an Audit ensures that their client is as prepared as possible.
Misclassification of employees as independent contractors is the most common reason that employers face fines and penalties in connection with a Department of Labor Audit. Further, the New York State Department of Labor has joined with the Federal government and other State departments to police misclassification resulting in a large increase in audits in the last several years. Federal and State agencies share information with each other and it is not uncommon for a Department of Labor Audit to spur a Worker’s Compensation Audit and an IRS Audit and so on. To complicate matters, the analysis regarding whether a person is an independent contractor or an employee is different for each agency and the results for Unemployment Insurance purposes and Workers’ Compensation purposes may be vastly different.
An Audit Notice will assign a specific Examiner to your client’s case. It is recommended that you reach out to the assigned Examiner as soon as possible in order to introduce yourself and establish a rapport. Many Examiners know from this first contact whether the Audit will be easy or difficult and the first contact colors their impressions of the client and informs them on the attitude they should take during the Audit. If a representative is hostile to an Examiner during the first contact, the Examiner may think they have something to hide and may take a harder tack when reviewing documents. Examiners have wide discretion with regard to the classification of individuals as employees or independent contractors based on numerous factors set forth by the Department of Labor, and, since their recommendations regarding an Audit are rarely overruled, it’s your job to make their job as easy as possible.
Documentation requested for an Audit includes copies of ledgers and journals, payroll records, disbursement records, copies of checks, corporate books, records relating to reimbursements, income tax returns, payroll returns and 1099s. Audits cover a span of 3 years and, depending on the number of employees at the company, these records can easily be in the thousands, or tens of thousands, of pages. Therefore, it is important that these documents are gathered in advance of the Audit and are well organized. Once again, your job is to make the Examiner’s job simple; you do not want them to have to scan through stacks of loose paper to find one particular document. Documents should be organized and tabbed by year and by type and pages should be bate-stamped for easy reference. Creating a Table of Contents so that the Examiner can easily find all documents is recommended; this will also enable you to gain familiarity with the papers so that you can assist in pointing the Examiner towards specific requested information.
At the Audit, the Examiner will first review the employee payroll records, or W2s. Examiners select a “test year” from the 3-year period. If no discrepancies are found, they may then choose not to proceed with a review of the remaining years. Again, it behooves your client to be organized. If all the information required by the Examiner is readily accessible and in good order, they may choose not to examine all the years of the Audit period.
Next, the Examiner will review the documents relating to independent contractors. Not only should you gather documentation relating to how the independent contractors were paid, but you should also request that your client outline the details of the employment of these individuals, specifically related to how they are supervised and controlled. While this information does not need to be immediately shared with the Examiner, unless requested, it is imperative that you have a working knowledge of the responsibilities and working situation of each independent contractor in the event that the Examiner asks you to defend a classification. Once again, misclassification determinations are based on many factors that often require subjective decisions. Examiners are rarely overruled and if you convince them, it is unlikely that you will have to convince someone higher up at the Department of Labor. The Department of Labor’s website provides a vast array of information relating to the factors used when classifying employees for both Unemployment Insurance and Workers’ Compensation proposes. Further, they maintain a searchable index of Appeal Board decisions that can be searched by industry and profession and are invaluable in preparing to defend a client’s classification of an individual as an independent contractor.
Once the review of documents is complete, the Examiner will let you know immediately if they believe that money may be owed. Back at the office, the Examiner will write and submit his report to his immediate supervisor who reviews same. Thereafter, the report is submitted to the Department of Labor for a final review and for the issuance of a final determination. This process typically takes 3-4 months. If a party wishes to appeal a final determination, they must do so in writing within 30 days.
The takeaway regarding the preparation for a Department of Labor Audit is twofold. One, be organized and prepared; make the Examiner’s job as easy as possible. If they see you have nothing to hide, your documents are well-organized, and you are trying to simplify the process, they will likely be less hostile and may rule on on-the-cusp classifications in your favor. Two, be kind to your Examiner from the first contact onwards. Examiners often make a decision regarding the tenor of an Audit from first contact and if you establish yourself as difficult or hostile, then the Examiner will approach the Audit in the same manner and may use their discretion to your client’s disadvantage.
Bashian & Farber Hosts a Webinar on Successfully Contesting a Will
On October 14, 2015 the Law offices of Bashian & Farber, LLP were proud to host a live, 90 minute “webinar” presented by the New York State Bar Association entitled “Winning a Will Contest Using Medical Records to Support Lack of Capacity.”
Partners Gary E. Bashian and Irving O. Farber lectured in detail about the nature of Testamentary Capacity under New York law, the use of medical records to establish a Testator’s lack of capacity, and Continue reading
What to Expect When Purchasing a Co-op
In many areas, co-op apartments are viewed as affordable housing that offer a gateway to home ownership. First-time homebuyers and seniors are often drawn to co-ops as they require less upkeep than houses and the repairs and management of the common areas are cared for by a management company. Co-ops also offer owners seeking to cap their monthly housing costs a set maintenance fee that will usually encompass the costs of heat, hot water, upkeep of the common areas and real estate taxes in addition to any mortgage payments. While co-ops have much to offer, it is important to understand that buying a co-op is very different than purchasing other real estate. Here are a few tips to consider: Continue reading
Estate Planning & Asset Protection For Physicians
By: Irving O. Farber, Esq.
The asset protection planning legal scholar, Duncan E. Osborne reminds us that, in the absence of a nefarious reason, asset protection planning is a right. He has written that:
“Almost all estate planning lawyers, almost all of the time, represent honorable , law abiding clients, men and women who daily contribute to society by their productivity and with their generosity, who pay their bills and their taxes, and who are not deadbeats, cheats, frauds, or criminals. These same good people, some of whom have acquired significant wealth by their own hard work or that of their forebears, are legitimately concerned about the success of an American litigation system which sometimes more Continue reading
The NYSBA House of Delegates Meet
On November 7, 2015, attorneys from across the State of New York met in Albany, New York, to participate in the New York State Bar Association House of Delegates Meeting. These Delegates represent the legal community from local bar associations and districts and come together several times a year to discuss important issues impacting the legal profession and the greater community. At this meeting, the Delegates discussed preparation for a possible New York State Constitutional Convention, changes to the manner in which the legal community addresses professional discipline, modification of how members of the judiciary may receive retirement benefits and other important topics.
Bashian & Farber Partner, James L. Hyer, Esq. commented on the meeting:
“It was an honor to have been appointed as a delegate to represent the Westchester County Bar Association and to have the opportunity to participate in such an important body. We discussed some very important issues pertaining to the legal community, which discussions will continue during this next week, and I look forward to continuing my service with the House of Delegates in the future.”
“It was an honor to have been appointed as a delegate to represent the Westchester County Bar Association and to have the opportunity to participate in such an important body. We discussed some very important issues pertaining to the legal community, which discussions will continue during this next week, and I look forward to continuing my service with the House of Delegates in the future.”
10 Best in Client Satisfaction
Each year the American Institute of Family Law Attorneys recognizes the top 10 practitioners in every state with the “10 Best in Client Satisfaction Award” for attorneys who handle matters in the areas of family and matrimonial law. This year Bashian & Farber partner, James L. Hyer. Esq, was presented with this distinguished recognition. When receiving the award, Mr. Hyer commented,
“At Bashian & Farber, we handle a wide range of litigation including matters pertaining to family and matrimonial law and it is wonderful to receive this recognition as we constantly seek to ensure that each client is highly satisfied with our work product. This award confirms that we are reaching our goal.”
Bashian & Farber, LLP handles matters relating to family including divorce, annulment, child custody, child support, paternity, and family offense. Several of our attorneys are also trained mediators who are available to mediate such family disputes.
Bashian & Farber, LLP Sponsors Meet the Judges Event at Pace Law School
Every year members of the legal community come together at Pace Law School at the annual Meet the Judges Event. Hosted by the Westchester County Bar Association, the event’s mission is to provide a venue for students attending Pace Law School to meet members of the judiciary.
This year the event was sponsored by Bashian & Farber, LLP, and attended by several of the firm’s staff including: Partner James L. Hyer, Associate Andrew Frisenda, Associate Jillian K. Markowitz, Associate Jordan C. Conger, and Paralegal Caitlin Baranowski. Mr. Hyer commented, “I am so proud that Bashian & Farber, LLP, had the opportunity to support such a fine event which attracted the participation of members of the bench at all levels of government, who interacted with the students in attendance,” and we look forward to sponsoring the event next year as well.
Bashian & Farber, LLP 