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In re Orshansky

August 15, 2002

IN RE MOLLIE ORSHANSKY; JANE POLLACK, APPELLANT.


Appeal from the Superior Court of the District of Columbia, Probate Division (INTVP. No. 355-01) (Hon. Kaye K. Christian, Trial Judge)

Before Farrell, Ruiz, and Glickman, Associate Judges.

The opinion of the court was delivered by: Glickman, Associate Judge

Argued June 25, 2002

Jane Pollack appeals from the appointment of Harry J. Jordan as general guardian and conservator for her aunt, Mollie Orshansky. In addition to challenging the probate court's jurisdiction, Ms. Pollack principally contends that the court abused its discretion when it rejected Ms. Orshansky's own arrangements for her incapacity and, against her and her family's wishes, appointed Mr. Jordan, a District of Columbia lawyer who had no prior relationship with her. Mr. Jordan, joined by Tanja H. Castro, the attorney whom the probate court appointed to represent Ms. Orshansky, argues that Ms. Pollack has no standing to pursue this appeal. As well, both Mr. Jordan and Ms. Castro ask us to uphold the probate court's jurisdiction and affirm its rulings on the merits.

This controversy began when George Washington University Hospital petitioned the Superior Court to appoint a guardian and a conservator for Ms. Orshansky, whom the Hospital had admitted on a referral from the Adult Protection Services division of the District's Family Services Administration. Before the date of the hearing on the petition, Ms. Pollack removed Ms. Orshansky from the Hospital without its knowledge and took her to New York. Informed of this development, the court held an emergency hearing and appointed Mr. Jordan to serve as Ms. Orshansky's temporary guardian and conservator to protect her interests pending final resolution of the petition. At a subsequent hearing, after taking testimony and argument from Mr. Jordan, Ms. Pollack and others, the court granted the petition and finalized Mr. Jordan's appointments.

The proceeding in this case, called an intervention proceeding, is governed by the District of Columbia Guardianship, Protective Proceedings, and Durable Power of Attorney Act of 1986, D.C. Code § 21-2001 et seq. (2001). Under the Guardianship Act, the Superior Court may, upon petition, appoint a guardian and a conservator for an "incapacitated individual," i.e., "an adult whose ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that he or she lacks the capacity to manage all or some of his or her financial resources or to meet all or some essential requirements for his or her physical health, safety, habilitation, or therapeutic needs without court-ordered assistance or the appointment of a guardian or conservator." D.C. Code § 21-2011 (11). The appointment of a guardian and a conservator is an extraordinary intervention in a person's life and affairs, and the Act lays out standards and procedures that are designed to ensure careful consideration and respect for the rights of the subject of the proceeding. The ultimate decision is committed to the informed discretion of the probate court judge.

We hold that Ms. Pollack has standing to appeal the decision of the probate court and that the probate court had jurisdiction to entertain the intervention petition. On the merits, we reverse. We hold that the probate court abused its discretion and violated statutory requirements for the appointment of a guardian and a conservator by not taking proper account of Ms. Orshansky's own plans and wishes and by making the appointments without sufficient information regarding Ms. Orshansky's needs and best interests or other sufficient factual foundation.

In order that our holdings may be understood, we summarize the facts and proceedings below in greater detail than usual for an appellate opinion.

I. FACTUAL BACKGROUND AND PROCEEDINGS BELOW

A. The Decision to Hospitalize Mollie Orshansky

Mollie Orshansky is eighty-seven years old. She lived by herself in the District of Columbia for forty years. She has no family in the District; her closest relatives are her two sisters and her nieces and nephews, all of whom live in the New York City area. Ms. Orshansky came to the attention of Adult Protection Services (APS) in early November 2001, when the property manager of the building in which she resided reported finding her in need of assistance. Over the next few weeks, Dr. Deborah Meyers, an APS social worker, paid several visits to Ms. Orshansky. On each visit, Ms. Orshansky came to the door dressed in the same soiled and dirty pajamas. Dr. Meyers saw that Ms. Orshansky was malnourished, frail, and in "a self-neglecting state." Her hygiene was poor and her apartment was unsanitary. During another visit, on December 11, Dr. Meyers found Ms. Orshansky outside in the cold, still dressed in her pajamas, and unable to find her apartment. Dr. Meyers tried to arrange for Ms. Orshansky to see her doctor and accept a home care aide, but she refused to cooperate.

When Dr. Meyers visited Ms. Orshansky again on December 19, she discovered her lying helpless on the floor of her apartment. Ms. Orshansky was malnourished, dehydrated and filthy. APS transported her to George Washington University Hospital, where she was admitted. Two days later, on December 21, the Hospital filed a petition in the Probate Division of Superior Court for the appointment of a permanent general guardian and a conservator. The Hospital supported its petition with an examiner's report signed by Dr. Katherine Goodrich, a hospital physician who is Board-certified in internal medicine. In her report, Dr. Goodrich stated that she examined Ms. Orshansky on December 20 and diagnosed her as suffering from a progressive global dementia. Dr. Goodrich stated that as a result of her dementia, Ms. Orshansky is "unable to care for herself," "unable to make sound judgments [about] her medical or physical care," and "unable to do her activities of daily living." The report contains no other detail about Ms. Orshansky's condition, degree of impairment, prognosis or treatment needs, but it recommends a nursing home as the most appropriate living arrangement for her. So far as appears from the record, Dr. Goodrich, who is apparently neither a gerontologist nor a psychiatrist, is the only doctor who has examined Ms. Orshansky and found her to be incapacitated. *fn1

Upon receiving the Hospital's petition, the probate court scheduled an initial hearing for February 12, 2002, and appointed Harry Jordan, an attorney on the court's fiduciary list, to represent Ms. Orshansky. Formal notice of the petition and the hearing was given to Ms. Orshansky and to members of her family in New York City.

B. Removal of Mollie Orshansky from the Hospital

On January 2, 2002, Ms. Orshansky's niece, Jane Pollack, and her nephew-in-law, Eugene Shapiro, met in Washington with Dr. Meyers and representatives of the Hospital to ask that their aunt be released into their care. They presented a "health care proxy" *fn2 that Ms. Orshansky had executed some eighteen months earlier, in July 2000. In the proxy, Ms. Orshansky appointed Ms. Pollack to be "my health care agent to make any and all health care decisions for me, except to the extent that I state otherwise." The proxy stated that it "shall be in effect when and if I become unable to make my own health care decisions," and "shall remain in effect indefinitely" unless Ms. Orshansky revoked it. Despite the presentation of this proxy, APS opposed Ms. Orshansky's release, and the Hospital refused to discharge her while its petition for the appointment of a guardian and a conservator was pending.

Unable to obtain her aunt's release, Ms. Pollack extended her stay in Washington. Over the next few weeks, she lodged numerous complaints with the Hospital that her aunt was not receiving adequate care, therapy or stimulation. As a result, Ms. Pollack charged, her aunt was suffering bruises, sores and urinary tract infections, and was growing weaker and more confused every day she remained in the Hospital.

On January 21, frustrated by what she perceived as the Hospital's indifference to her complaints, Ms. Pollack decided that, as her aunt's health care agent, she had to take matters into her own hands. Without telling the Hospital of her intentions, Ms. Pollack removed Ms. Orshansky and took her to New York City. From there, she called the Hospital to report what she had done.

C. The Emergency Hearing

Upon learning that Ms. Pollack had removed Ms. Orshansky without its authorization, the Hospital notified APS, the police and Mr. Jordan. It then filed an amended petition, informing the probate court that Ms. Orshansky "is incapacitated and was fraudulently removed from [the Hospital] by her relatives and moved to New York State." The amended petition requested the immediate appointment of a temporary guardian and conservator to protect Ms. Orshansky and her assets.

On January 25, Judge Christian held an emergency hearing on the amended petition. In attendance were representatives of the Hospital, Mr. Jordan on behalf of Ms. Orshansky, Dr. Meyers of APS, and George Teitelbaum, an attorney who appeared on behalf of Ms. Pollack. Dr. Meyers testified regarding APS's involvement with Ms. Orshansky, the January 2 meeting with Ms. Pollack and Mr. Shapiro, and the events leading up to the emergency hearing. Dr. Meyers stated that Eugene Shapiro was present when she made her first visit to Ms. Orshansky's apartment in November, and Ms. Orshansky "lashed out at him verbally" at the time and adamantly wanted him to leave. Dr. Meyers also testified that APS had told the family that it was investigating "everything that is connected with Ms. Orshansky," and had asked for financial information which the family refused to supply. Dr. Meyers asked the court to intervene because "APS is not satisfied with the actions of the family, and [does] not believe that Ms. Orshansky is in the safest care at this time."

Mr. Jordan supported the Hospital's emergency petition and volunteered to serve in the role of temporary guardian and conservator. He reported that he had visited Ms. Orshansky when she was still at the Hospital and found her to be confused, disoriented and unable to take care of herself, but content, not agitated, and "physically okay." He "saw nothing to suggest that she wasn't getting the best of medical attention." When Mr. Jordan learned that Ms. Orshansky had been removed, he telephoned her niece, Eda Shapiro (Eugene Shapiro's wife). According to Mr. Jordan, Ms. Shapiro was hostile to his inquiries and refused to answer his questions. She insisted that the family was following the instructions of their attorney in New York and acting in accordance with law.

Mr. Jordan also reported that he had learned from APS that Ms. Orshansky had significant assets, which included co-op apartments in the District and New York, a government pension, and an account in the District with Merrill Lynch. He said that a Merrill Lynch customer representative had informed him that the account held nearly a million dollars, and that Eugene Shapiro had contacted Merrill Lynch to request that the account be transferred to New York. Merrill Lynch had declined to accede to that request and had frozen the account. Mr. Jordan expressed his concern that Ms. Orshansky would not be safe in New York because "she wasn't taken care of down here even though the family acknowledged what was going on." "Hate to say this," he added, "but I think there's a lot of money involved here and that might be a driving force."

Speaking for Ms. Pollack, Mr. Teitelbaum moved to dismiss the amended petition on the grounds that Ms. Orshansky had not been given notice of the emergency hearing and that the court lacked jurisdiction because Ms. Orshansky "no longer" was domiciled in the District of Columbia. Regarding the merits, Mr. Teitelbaum argued that no guardian or conservator was needed because there existed what he called "a valid power of attorney," i.e., the health care proxy, a copy of which he furnished to the court for its examination. Mr. Teitelbaum argued that the proxy authorized Ms. Pollack to remove Ms. Orshansky from the Hospital, and that she did so because her aunt was suffering and had no medical problems requiring her to remain there. Mr. Teitelbaum agreed that Ms. Orshansky was "incompetent" but argued that when she was lucid she had made arrangements to be cared for by her relatives in New York if she were to become incapacitated.

Rejecting the jurisdictional and notice objections to the proceeding, *fn3 Judge Christian granted the Hospital's amended petition for the temporary appointment of a guardian and conservator. Finding that Ms. Orshansky was an incapacitated individual who was unable to manage her affairs or care for herself, the judge further found that she had been "improperly removed" from the Hospital and transported to New York while the original petition was pending. Judge Christian did not explain why she found that Ms. Orshansky's removal from the Hospital was "improper." The petitioners presented no evidence that the health care proxy was invalid or inoperative, that Ms. Pollack had removed Ms. Orshansky against her will, or that Ms. Orshansky's removal threatened her health or violated any law. Nor did the judge make findings to that effect.

After making her findings, Judge Christian accepted Mr. Jordan's offer to serve as temporary guardian and conservator for Ms. Orshansky and appointed Tanja Castro, another attorney on the court's fiduciary list, to replace him as her attorney. Declaring that "all Powers of Attorney heretofore signed by Mollie Orshansky for any purpose, including healthcare, are hereby voided," Judge Christian directed Mr. Jordan to go to New York and "determine and provide for Ms. Orshansky's best interests, care, and placement." Judge Christian did not explain the legal grounds on which she voided the health care proxy and any other powers of attorney that may have existed. The judge further instructed Mr. Jordan to return Ms. Orshansky to the District of Columbia and George Washington University Hospital if he deemed it appropriate to do so. Judge Christian also directed Mr. Jordan to take "immediate control" over Ms. Orshansky's assets and ordered her accounts frozen until he succeeded in doing so.

Three days later, on January 28, Ms. Pollack petitioned the New York Supreme Court to appoint her to be Ms. Orshansky's guardian and conservator. The New York court ordered all concerned parties, including Mr. Jordan, to show cause why the petition should not be granted, and scheduled the matter for a hearing in March. In the interim, the court prohibited the removal of Ms. Orshansky from New York City.

D. The Hearing on the Petition

On February 12, 2002, as originally scheduled, the hearing on George Washington University Hospital's petition for the appointment of a permanent general guardian and conservator for Ms. Orshansky commenced before Judge Christian. Ms. Castro appeared for Ms. Orshansky and, without objection, waived her presence. The judge confirmed that all present, including Ms. Castro, agreed that Ms. Orshansky was incapacitated within the meaning of the statute authorizing appointment of a permanent guardian and conservator. Ms. Pollack, who appeared at the hearing with her counsel, Mr. Teitelbaum, renewed her jurisdictional challenge, which the judge again rejected.

With these preliminaries out of the way, the hearing focused on two interrelated questions: whether Ms. Orshansky needed to be returned to the District of Columbia, and whether the court should select Mr. Jordan or Ms. Pollack as her permanent guardian and conservator. Mr. Jordan, the Hospital, Ms. Castro, and Dr. Meyers of APS all called for Ms. Orshansky's return to the District and the selection of Mr. Jordan. Ms. Pollack opposed those recommendations. Four witnesses testified: Mr. Jordan, Dr. Meyers, a Washington neighbor of Ms. Orshansky named Sheila Muldihill, and Ms. Pollack. Mr. Teitelbaum advised the court that a fifth intended witness, Ms. Orshansky's sister, Rose Orshansky, was unable to appear for health reasons. He asked that the hearing not be concluded until Rose Orshansky could testify. The judge denied that request, but stated that Mr. Teitelbaum could file a motion for reconsideration or an appeal if he saw fit to do so. Mr. Teitelbaum also sought to introduce affidavits from other relatives of Ms. Orshansky, but Judge Christian excluded these affidavits on hearsay grounds.

1. Harry Jordan

In his testimony, Mr. Jordan reported that he visited Ms. Orshansky in her New York apartment on February 1. He found Ms. Orshansky in a wheelchair, clean and with her hair brushed, and "very calm" though physically frail. When Mr. Jordan spoke with her, Ms. Orshansky was "very confused" and thought she was still in Washington, D.C. She did not understand who he was or what was going on. Ms. Orshansky was attended by a woman whom the family had retained as a full-time, live-in aide. Mr. Jordan was informed that this woman was not a nurse or dietitian but had prior experience living with and caring for another elderly woman. Mr. Jordan inspected the apartment and found it to be furnished "rather sparsely" with a sofa, a few chairs, two day beds, "and what have you." Mr. Jordan also "glanced" in the refrigerator and saw that there was food. In the course of his visit, he spoke at great length with Ms. Pollack. She explained to him that she had brought Ms. Orshansky to New York because she was unhappy with the care her aunt was receiving in the Hospital. She was taking Ms. Orshansky to doctors in New York for an ulcer on her foot, an eye problem and other reasons, and she believed that her aunt now was receiving the care she needed. Mr. Jordan voiced a concern that Ms. Orshansky did not have a full-sized bed with rails to prevent her from falling, and Ms. Pollack told him that a hospital bed was being purchased. She also told Mr. Jordan that family members had been visiting with Ms. Orshansky now that she was in New York. Mr. Jordan did not see any other relatives of Ms. Orshansky during his visit.

Based on these observations, Mr. Jordan expressed the opinion that Ms. Orshansky was "not getting the care that she deserves, simply given the fact that the lady has the wherewithal to be given anything she wanted." And, he stated, "I don't think it's going to get any better. I think it's going to get worse." Mr. Jordan did not explain this prediction. He discounted "the fact that relatives might have good intentions, would like to come by and see her," because "I think in the long run it's not the best thing for Mollie Orshansky." Mr. Jordan expressed concern that the live-in aide hired by the family lacked the medical skills he thought necessary to respond to an emergency such as a heart attack or an asthma attack. *fn4 He believed that Ms. Orshansky needed professional medical care "around the clock." Instead of being taken to see doctors, he thought that "what she really needs is to be in a facility where the doctors are there where they can come to her." Mr. Jordan opined that Ms. Orshansky should be returned to Washington and either "put back" in her "well furnished" apartment, where healthcare professionals could attend to her, or else put in a nursing home. Because Jane Pollack was responsible for Ms. Orshansky's removal to New York, he did not consider her to be a "proper candidate" for the positions of guardian or conservator.

Conceding that he was "not a medical expert by any stretch of the imagination," Mr. Jordan did not explain his qualifications for offering his opinions about Ms. Orshansky's medical needs. No medical or other expert evaluation of Ms. Orshansky's needs or appropriate placement was offered in evidence at the hearing.

On the question of the need for a conservator, Mr. Jordan testified that he had determined that the bulk of Ms. Orshansky's assets, including her account at Merrill Lynch, were held in a revocable trust of which she was the sole beneficiary. *fn5 Ms. Orshansky had created the trust in 1981. She and her sister, Rose Orshansky, were the co-trustees and each had authority to write checks on the Merrill Lynch account. Mr. Jordan learned that Merrill Lynch had lifted its freeze on the account, apparently at the behest of counsel for Rose Orshansky or Jane Pollack. Mr. Jordan had not discussed the account with Rose Orshansky, but Merrill Lynch had advised him that no extraordinary checks had been written on it. He acknowledged that he had no reason to think that Rose Orshansky was misappropriating or mismanaging trust funds. Nonetheless, Mr. Jordan recommended appointment of a conservator to prevent the improper diversion of Ms. Orshansky's assets. His principal concern was that Ms. Pollack had told him that approximately $90,000 in the Merrill Lynch account belonged to Rose Orshansky as her share of the proceeds from the sale of jointly owned property. Mr. Jordan also noted that Rose Orshansky and numerous other relatives were residual beneficiaries of the trust. More generally, Mr. Jordan expressed the view that "this is one of these unfortunate situations where you have somebody who has plenty of money and obviously it can be some temptations at time [sic]."

2. Dr. Deborah Meyers

In her testimony, Dr. Meyers reviewed once again the events that led up to Ms. Orshansky's hospitalization. Dr. Meyers said that Ms. Orshansky told her during one of her home visits that she wanted to stay in Washington, D.C., and did not want to go to New York. Dr. Meyers also stated that "APS feels that the family does not have the best interests" of Ms. Orshansky at heart. The reason Dr. Meyers gave for this conclusion was that the family did not cooperate with APS's requests for financial information. Dr. Meyers also "questioned" why Eugene Shapiro had allowed Ms. Orshansky to sink into the condition in which APS found her. However, Dr. Meyers described how suspicious Ms. Orshansky was of Mr. Shapiro when she saw them together on November 19, and acknowledged that Ms. Orshansky stymied APS as well when it tried to help her because of her reluctance to admit that she needed assistance. Although Ms. Orshansky at one point agreed to see her regular physician and two home care service agencies, she refused to follow through with the appointments. Dr. Meyers told Ms. Orshansky's relatives about the appointments when she set them up, but never informed the family that the appointments were not kept. Dr. Meyers did not so inform the family, she said, because she was waiting for Eda Shapiro to fax her Ms. Orshansky's financial information first.

3. Sheila Muldihill

Ms. Castro called Sheila Muldihill, a long-time friend and neighbor of Ms. Orshansky in Washington, to testify. Before Ms. Orshansky was hospitalized, Ms. Muldihill kept in touch with her by telephone. She said she last visited Ms. Orshansky in her apartment "a year ago and took out a number of newspapers, but then I had pushed her as far as she could be pushed, and no more." Ms. Muldihill mentioned her efforts to get Ms. Orshansky to see a doctor, and Ms. Orshansky's expressed desire to go to New York:

I tried to get her to go to the doctor. Well, the doctor had moved. And then she wanted to go to New York, but she couldn't go to New York until she'd gone to the doctor, and blah, blah, blah. So, ...


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