The Fifth Amendment protects an allegedly incapacitated man from being compelled to testify at a proceeding over whether to appoint a guardian to manage his property, a Dutchess County Supreme Court justice has ruled in In the Matter of G.P., 1932/2012, declining to follow a pair of appellate decisions.

Justice James Pagones (See Profile) ruled on July 26 that a man identified as G.P. could not be forced to testify in a proceeding brought by the county’s Department of Social Services pursuant to Article 81 of the New York Mental Hygiene Law, which pertains to guardianship of incapacitated persons.

The judge had previously appointed a temporary guardian for the property management needs of G.P., but has not yet decided whether to make the guardianship permanent. G.P. has not consented to the appointment of any guardian.

At a July 13 hearing on whether to appoint a temporary guardian, the social services agency tried to call G.P. as a witness. G.P.’s attorney objected, and Pagones sustained the objection. The department later submitted a letter arguing that G.P. must testify. Pagones treated that letter as a motion in limine, which he denied in his July 26 order.

The judge began by noting that Article 81 is “noticeably silent” on whether an allegedly incapacitated person must testify. He also noted that it contained numerous protections for the allegedly incapacitated person, including a right to proper notice, to legal representation, to demand a jury trial, to be present at and to participate in any hearing.

At the same time, Article 81 contains language suggesting that some decisions may be made in the best interest of the allegedly incapacitated person, making it a “statute at war with itself,” the judge said, quoting a New York Law Journal article by attorney Daniel G. Fish, “Does the Fifth Amendment Apply in Guardianship Proceedings?” (NYLJ, Feb. 25, 2011).

The judge went on to quote Fish’s article to say that Article 81 “has at its core the contradictory notions of an adversarial model and a paternalistic model.”

In support of its position that the Fifth Amendment does not apply in Article 81 proceedings, the Department of Social Services cited two Appellate Division, Fourth Department, decisions: Matter of Heckl, 66 AD3d 1344, at 1347 (2009), and Matter of Aida C., 44 AD3d 110, at 115 (2007). Both rulings held that an allegedly incapacitated person could be compelled to give testimony.

The court in Heckl ruled that “due process rights are not violated inasmuch as the court is charged with determining” the allegedly incapacitated person’s “best interests.”

Since Dutchess County is within the Second Department, the social services agency argued that Pagones should follow the Fourth Department because there are no Second Department rulings on point.

Pagones, however, said the Fourth Department was incorrect because it had relied on a Second Department decision from 1976, Matter of Lyon, 52 AD2d 847. Article 81 was not passed until 1993. In 1976, the applicable law was known as Article 77, and had less extensive protections for allegedly incapacitated persons and relied primarily on the “best interests” of the allegedly incapacitated person.

Under Article 81, Pagones said, the appointment of a guardian “must be based upon clear and convincing evidence…as demonstrated by the petitioner.”

“This standard is much higher than best interests,” the judge said. “It is consistent with the stated legislative findings and purpose to afford persons who are the subject of an Article 81 proceeding the opportunity to exercise the independence and self-determination of which they are capable.”

Furthermore, Pagones said, when it amended the statute by passing Article 81, the Legislature “clearly expressed its intention that he or she have heightened rights previously absent.”

The judge said that a more applicable precedent was Matter of United Health Services Hospitals (A.G.), 6 Misc.3d 447, a 2004 Broome County Supreme Court decision. There, the court ruled that an allegedly incapacitated person was protected by the Fifth Amendment. And the decision “made it clear that a person retains his or her civil rights in a proceeding where personal liberty is at stake,” Pagones said.

G.P.’s personal liberty is clearly at stake in a case over whether to appoint a guardian, Pagones said.

“Determining where the person can live, with whom the person can associate, make medical and dental decisions, determine whether the person should travel, decide the person’s social environment, authorize access to or the release of confidential records, whether the person can operate a motor vehicle, make decisions with respect to the management and expenditure of one’s assets, go to the very core of one’s independence and ability to enjoy the pleasures of life,” the judge said.

G.P. is represented by William Bogle Jr. of Corbally, Gartland and Rappleyea in Poughkeepsie.

The Department of Social Services is represented by Janet Tullo, bureau chief of the Dutchess County Attorney’s Department of Social Services Legal Unit.

Neither attorney could be reached for comment.