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N.Y. Judge Declines to Recognize Validity of Egyptian Guardianship Decision
New York Law Journal
A New York state judge has declined to recognize an Egyptian court's appointment of a son as his father's guardian.
Brooklyn Supreme Court Justice Betsy Barros dismissed as contrary to the state's public policy the bid of Ahmed Mohamed Gabr to control the U.S. assets of his father, Mohamed Ahmed Mohamed Gabr.
Instead, the judge appointed the elder man's wife, Sana'a, as his personal needs guardian.
"This Court cannot appoint the foreign guardian as a guardian in this matter," Barros wrote in Matter of Gabr, 100223/2011. "He has no means of support and has been declared bankrupt. Moreover, despite a court order from Egypt, the Petitioner has not supported his father or his father's wife for years. His extreme animus toward Sana'a, his father's nominated guardian, current primary care giver and chosen companion, likewise makes his appointment untenable."
The father, now about 80, worked in the United States for about 20 years as a bank teller before returning to his native Egypt in 2000. A year later he married Sana'a. After the father suffered a stroke, an Egyptian court appointed his son as guardian.
In November 2011, the son filed a petition in Brooklyn to be named the foreign guardian of his father's American bank account, pursuant to Mental Hygiene Law §81.18.
As the litigation proceeded, the father and his wife relocated to Brooklyn. They urged dismissal of the son's petition and cross-moved to have the wife named his property and personal needs guardian.
As an initial matter, Barros had to weigh whether to recognize the validity of the Egyptian guardianship decision and grant it comity.
She observed that the foreign order relied "in large measure" on medical tests performed by the Egyptian Forensic Medical Department that found "organic diseases and senile dementia."
But Barros said the Egyptian court examined the father's mental health "without addressing, as would be statutorily required in this jurisdiction, the [alleged incapacitated person]'s functional level as well as any safeguards in place to protect him." She added in a footnote that the Egyptian decision did not note "even one activity of daily living" the father could not perform.
Furthermore, Barros observed that Egyptian law stated it was "legally established that the guardianship be vested in the adult son, then the father, then in the grandfather and thereafter be vested in whoever the Court may chose."
But New York's law is "gender neutral" and even lists the spouse as the first appointee.
Finding that the Egyptian order was "both procedurally and substantively in conflict with New York guardianship law and inconsistent with public policy of this State," Barros refused to grant comity and scheduled a hearing on whether the son should be named guardian over his father's U.S. funds.
The son's testimony showed he had been "estranged" from his father, having had "very little contact" with him before 2006, the judge said.
The Cairo district attorney is investigating an allegation from the wife that the son was embezzling his father's money, according to Gil Perez, the father and his wife's court-appointed attorney.
In response to Barros' request that the son produce an accounting of his guardianship dealings, the son submitted a ledger "that appeared to have all been written in one day and with the same pen."
Barros said there were "multiple" pending legal proceedings in Egypt. She also said that an accusation from the son that his father's wife had exercised undue influence over his father had "proved false."
She noted that $330,000 withdrawn from the father's accounts by his wife was not a quick drain of assets but had been withdrawn to support their lifestyle over the course of their marriage.
Barros said the son's testimony "appeared unreliable and disingenuous." And while much of the son's testimony was "disconcerting and vague, one thing was crystal clear -- his absolute contempt for Sana'a and his relentless pursuit to divest her of any ownership interest in [the father's] estate."
The father testified that his wife was his primary caretaker. He was in a wheelchair and showed some "cognitive loss" like an inability to remember his Cairo address, Barros observed.
However, the father "impressed" the judge with the trust he placed in his wife. Moreover, she said the couple showed "genuine affection" for one another.
The judge named the wife as the father's personal needs guardian, but concluded there was "no need" to appoint a property guardian because the father, in allowing his wife to access the New York funds, "has basically exercised his right to make an appropriate advanced directive as to said property."
If the pair anticipated relocating, the judge said the father could ask that his wife be named property guardian at that time.
Joel Schonfeld of Schonfeld & Weinstein in Manhattan represented the son on the action in Brooklyn but was not involved in the Egyptian litigation.
He said the judge conducted a "fair trial." He added that he has not heard whether his client wants to appeal, although he doubted it because the sum at stake was "so infinitesimally small."
Perez, the father and his wife's court-appointed attorney, called the ruling "appropriate" saying, "The judge found with the facts presented."
The couple may or may not stay in Brooklyn, according to Perez, but the wife is appealing the Egyptian guardianship order, he said.
According to Perez, there is about $2,000 in the account at issue, and the attorney had been transferring $1,200 a month to the father.
Saidi Sanusi of Mental Hygiene Legal Services appeared as the court evaluator.