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VMM FAMILY INSTITUTE WEEKLY INSIGHTS: THE APPLICATION OF PETER FALK'S LAW

We previously have written about a new law signed into legislation on July 21, 2016, which imposed new requirements on a Personal Needs Guardian. Under this statute, commonly known as Peter Falk’s Law, and contained in the Mental Hygiene Law, the order of appointment of a Guardian must identify the persons entitled to receive notice of an incapacitated person’s death, the intended disposition of the remains, funeral arrangements, and the final resting place when that information is known or reasonably can be obtained by the Guardian. In a recent application of the law, a now deceased incapacitated person’s (IP’s) daughter moved to sanction her sister, the IP’s Personal Needs Guardian. The basis for the application is that the IP failed to comply with the law. The basis of her application included:

  • Her inability to visit with her mother during the last few weeks of her life;

  • The concealment by the Personal Needs Guardian of the Incapacitated Person being admitted to hospice care;

  • The Personal Needs Guardian’s failure to inform her of the funeral arrangements whatsoever;

  • The Personal Needs Guardian’s failure to provide a copy of the death certificate.

The Order appointing the IP stressed that the other daughter not be cut completely from the IP’s life, including being consulted on the IP’s medical care. At the time of the death of the IP, the Guardian informed Court chambers and other parties by email that evening. Chambers quickly clarified her obligation to notify the parties of the funeral/burial arrangements the next morning. No response was received from the Personal Needs Guardian. By early afternoon of the next day Court chambers, the Court examiner and the attorney for the decedent’s sister all were attempting to contact the Personal Needs Guardian without success.

Finally, late in the evening the Personal Needs Guardian responded to the numerous contacts in a simple email to Court chambers, the Court examiner, Property Management Guardian and counsel for the sister. The email contained the following language:

“In hospice. Passed on May 8, 2018 and was buried today.”

The Court noted the Personal Needs Guardian’s failure to inform the sister that the IP was transferred to hospice and of the funeral arrangements before completing such service, warranting the imposition of sanctions. The Court ruled that the IP’s actions in the 48 hours following the IP’s death were “incomprehensible to the Court” and issued sanctions based on the Personal Needs Guardian’s failure to advise her sister of the Incapacitated Person’s transfer to hospice care and for her failure to inform her sister of the funeral arrangements. The Court denied sanctions for failing to provide a copy of the death certificate or preventing visitation, as there was no clear mandate in place concerning the visitation issue. The Court ultimately issued sanctions of $20,000, with $5,000 of it as attorney’s fees for denying the daughter a chance to grieve her mother, the notice concerning the hospice and to attend the funeral/burial.

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