Grandma’s Right To Remain Silent

It isn’t often that elderly people get hauled into court and have to defend themselves against criminal charges, and thus, invoke their Fifth Amendment right against self-incrimination. But there is another situation in which grandma’s liberty may be stake and where she may want to keep quite in court proceedings. And with the increasing age and wealth of the population such proceedings may play a larger role in families’ lives. What type of court proceedings are these? They are proceedings under article 81 of the Mental Hygiene Law to have a guardian appointed for the personal needs or property management of a person who becomes incapacitated because of age (or other reasons).

Recently, the Fourth Department had to decide whether and to what extent the right against self-incrimination exists in such proceedings in Matter of Heckl, 2007 NY Slip Op 06089. In that case, the elderly person at issue was an 80-year-old mother, and the president and sole shareholder of Permclip Products Co., which was established by her late husband. Her children commenced a proceeding under article 81 claiming that she had been diagnosed with dementia, and that she was no longer able to care for her personal needs or able to manage the Permclip business or her personal financial affairs. The mother, who had become estranged from her children, claimed that her children were only seeking to benefit themselves by controlling her company and her fortune.

As part of the proceedings, the court appointed a “Court Evaluator” pursuant to Mental Hygiene Law § 81.09. The purpose of a Court Evaluator in a § 81.09 proceeding is, among other things, to meet with the person alleged to be incompetent and to make a report and recommendations to the court. The mother did not want to meet with the Court Evaluator and moved for an order vacating the appointment of the Court Evaluator. The mother, who was represented by her own counsel, argued that her liberty interest was at stake and thus she could not be compelled to speak with the Court Evaluator without violating her Fifth Amendment right against self-incrimination. She argued that her constitutional right to be protected from acting as a witness against herself would be violated if she met with the Court Evaluator because information obtained by a Court Evaluator can be admitted in evidence at the hearing in the proceedings (Mental Hygiene Law § 81.12[b]). The lower court rejected the mother’s argument, ordered the Court Evaluator to meet immediately with the mother, and when the mother still refused, the court ordered her to meet with the Court Evaluator within 10 days or she would be held in contempt of court. The mother then appealed to the Fourth Department.

The Fourth Department agreed with the mother that because a guardian could be granted the authority to make decisions affecting her most basic rights, including whether she would reside in her own home or be placed in a facility, her constitutionally protected liberty interests were at stake in the proceeding. However, the Court also held that the right against self-incrimination was not implicated in the proceedings. The Court noted that the right against self-incrimination only applied to protect a person from “inculpatory” statements, i.e., statements that the person may reasonably apprehend could be used in a criminal prosecution leading to confinement for the purpose of punishment. The Court drew the distinction between confinement for the purposes of punishment and confinement for the purposes of treatment, and it is only where punishment is a potential that the right against self-incrimination attaches. Thus, since the proceedings under article 81 of the Mental Hygiene Law could only lead to confinement for care and treatment, statements made to a Court Evaluator were not subject to the constitutional protection against self-incrimination.

However, in a twist, the Fourth Department further held that the lower court had no authority to actually compel the mother to meet with the Court Evaluator. The Court stated that while there was a statutory duty on the part of the Court Evaluator to meet with the alleged incapacitated person, there was no concomitant statutory duty on the part of the alleged incapacitated person to meet with the Court Evaluator. This being the case, the mother also could not be found in contempt for failing to meet with the Court Evaluator. The Court recognized that the Court Evaluator would thus be hampered in the performance of his duties. But, the mother was within her rights to simply not avail herself of the statutory protection afforded by the Mental Hygiene Law of the Court Evaluator providing a full report.

Thus, we have a neat little right here for the elderly. Since they do not have to meet with the Court Evaluator, they in essence don’t have to fully cooperate with their children’s attempts to have them put away.

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