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Burner Prudenti Law P.C.

METRO photo

By Robert Cannon, Esq.

Robert Cannon, Esq.

Consider this scenario: a 75-year-old woman, Jane, began to exhibit signs of cognitive decline last year. She is widowed and has one child. Moreover, her financial advisor contacted a relative to advise that Jane was making unusual withdrawals and that there is a concern that she may be the subject of financial exploitation. The relative no longer believes she can take care of her financial affairs and is concerned that she is not looking after her personal needs. 

As a first step, the family tried to talk to her last year about meeting with an estate planning attorney, but she refused to do so. There are no known advance directives in place and her condition has deteriorated significantly. In addition, Jane has a 40-year-old son with Down syndrome who is entirely reliant upon her. What can be done?

First step is to determine if Jane has the capacity to sign advance directives including a health care proxy and power of attorney. If this is not possible because she has deteriorated to the extent of being unable to handle her affairs or appoint someone to do so, the family may need to explore the commencement of a Mental Hygiene Law Article 81 proceeding seeking the appointment of a guardian of the person and property of Jane.

The commencement of the proceeding involves filing a verified petition with the Supreme Court of the county in which she resides outlining the reasons why it is believed that she does not understand or appreciate the extent of her limitations and that she is likely to suffer harm if a guardian is not appointed for her. The appointment of a guardian in MHL Article 81 proceedings is based on functional limitations and not on medical diagnoses.

In light of the financial advisors concerns regarding potential financial exploitation, at the outset of the proceeding, it may be prudent to request that the Court appoint a Temporary Guardian to immediately take steps to secure Jane’s finances and prevent any further abuse.

The Court will set a hearing date and all interested persons will have to be notified, including Jane’s son and her living siblings. The Court will appoint a Court Evaluator to conduct an investigation, which will include meeting Jane in person, speaking with other friends and family members, and investigating her finances. In limited circumstances it may be appropriate for the Court Evaluator to request the permission of the Court to review medical records. The Court may appoint an attorney to represent Jane. The Petitioner would be required to testify at the hearing along with any other witnesses that will help demonstrate to the Court Jane’s need for a guardian. The Court Evaluator will also testify as to their findings and recommendations.

If appointed, the permanent guardian will step into your Jane’s shoes. The petitioner can request to serve as guardian or it can be a third party. The Court can tailor the powers granted to the guardian to meet Jane’s individual needs and can appoint a guardian of the person, a guardian of the property, or both. There are various safeguards in place to ensure that once a guardian is appointed, Jane will be protected, including the requirement that the guardian obtain a bond and file annual reports with the Court.

Once Jane is squared away, the family members will need to turn their attention to Jane’s son. The first inquiry should be if Jane or anyone else was ever appointed as her son’s guardian. If not, we must consider the possibility of commencing a SCPA 17-A guardianship proceeding in the Surrogate’s Court of the County in which he resides. Unlike MHL Article 81, the appointment of a guardian in a SCPA 17-A proceeding is driven by medical diagnoses. 

As part of the application, a licensed physician and licensed psychologist with a PhD are required to submit Affirmations certifying that Jane’s son is intellectually or developmentally disabled. A guardian appointed in this manner is granted broad decision- making authority over financial and medical matters.

As you can see, seeking guardianship for an adult in New York can be quite nuanced. Whether it be through the Mental Hygiene Law Article 81 or SCPA Article 17-A, it is possible to provide for the needs of these vulnerable adults.

Robert Cannon, Esq. is a senior associate attorney at Burner Prudenti Law, P.C focusing his practice areas on Elder Law and Guardianships. Burner Prudenti Law, P.C. serves clients from Manhattan to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

Britt Burner Esq. speaks at the New York State Bar Association’s Elder Law and Special Needs Section summer meeting. Photo courtesy of Britt Burner, Esq.

Burner Prudenti Law has announced that partner Britt Burner, Esq. is the New York State Bar Association’s (NYSBA) newest Chair of the Elder Law and Special Needs Section. She kicked off her term, which officially began on June 1, 2024 and runs through May 31, 2025, at the Section’s annual meeting in Montreal held July 11-13, 2024.

The NYSBA’s Elder Law and Special Needs Section provides members with educational opportunities relating to Elder Law and Special Needs Law. The Section offers CLE (Continuing Legal Education) courses and webinars, as well as published materials on legal practice, procedure, and developments in the law. By helping to enhance the skills of lawyers who practice in this field and by providing them with opportunities for networking and knowledge sharing, the Section aims to improve the quality and efficiency of legal services offered to New Yorkers.

The Section also advocates for improvements in law and procedure that affect seniors and the disability community, in the form of studies, legal analyses and recommendations, and more. Of particular importance to Burner this year as Chair is addressing the legislative and budget concerns, especially those relating to Medicaid, that affect elder law attorneys and their clients.

With vast experience practicing as an elder law and special needs attorney, Britt Burner is well-positioned to lead the Elder Law and Special Needs Section. Before serving as an officer of the Section, she served as Vice Chair of the Section’s Medicaid Committee as well as Chair of its Legislation Committee. In addition to educating other lawyers about this area of law, Burner frequently offers seminars in the community to educate the public about elder law and special needs law as a means to help empower them to make the most informed decisions for their futures and that of their families. She is frequently honored for her contributions to the profession, having been most recently named a 2024 Super Lawyer in the field of Elder Law as well as recognized among the 2024 Best Lawyer rankings for Elder Law and Trusts & Estates in Manhattan, among numerous other awards.

The first order of business as Burner began her new term was to plan the Section’s annual meeting that was held in Montreal from July 11-13, 2024. There, she had an opportunity to share her vision for the upcoming year: increasing membership and continuing to ensure that every NYSBA elder law attorney’s concerns are heard on the state and national level.

“Serving as Chair of the New York State Bar Association Elder Law and Special Needs Section is an honor that I don’t take lightly,” shared Britt Burner, Esq. “As an elder law and special needs attorney I have personally benefited from the collective knowledge and support the Section offers, and I am thrilled to be able to pay it forward by serving as Chair.”

There are many reasons why estate planning is important.

Join Burner Prudenti Law, P.C. for an Estate Planning seminar titled Protecting Assets: Should I Put My Home in a Trust? at Sachem Public Library, 150 Holbrook Road, Holbrook on Tuesday, July 23 at 6:30 p.m. The program will cover how to protect assets, including property and second homes, the ways to reduce and eliminate taxes, and the importance of having a sound estate plan in place. To register visit burnerlaw.com/seminars-webinars/ or call 631-646-2733.

From left, Britt Burner, Esq., Hon. Gail Prudenti and Nancy Burner, Esq.

On Aug. 16, Burner Law Group, P.C. announced that it changed its name to Burner Prudenti Law, P.C. and welcomed new Partner Hon. Gail Prudenti, former Chief Administrative Judge for the State of New York. 

The hiring and new name reflects the firm’s three partners — Nancy Burner, Britt Burner and Gail Prudenti — and the firm’s continued expansion of its Trust & Estates and Elder Law practices.

“Gail Prudenti is one of New York’s preeminent trust & estates attorneys with decades of experience as a distinguished judge, an outstanding law school dean, and as a trusted attorney,” said Nancy Burner, Founding Partner. “Adding Gail positions Burner Prudenti Law to uniquely serve our clients’ growing needs for elder law and trust & estates expertise.”

Founded in 1995, as Nancy Burner & Associates and later, Burner Law Group, the firm is a wholly women-owned full-service boutique law firm specializing in elder law, estate planning, trusts & estates and real estate with offices in East Setauket, East Hampton, Westhampton Beach and NYC.

Over the years, the firm has developed a reputation for excellence, compassion and integrity, helping clients with matters involving wills and trusts, wealth management, guardianship, and long-term care.

“In thinking about the next chapter in my career, I wanted an opportunity where I could continue to make a difference in the community and help families solve their legal issues — Burner Prudenti Law provides me with both opportunities,” said Hon. Gail Prudenti, Partner. “I am delighted to be joining such an outstanding team of attorneys and a firm that shares a commitment to providing exceptional legal services, bettering the Long Island and New York community, and putting clients’ needs first.”

“This is an exciting time for the law firm, and we look forward to continuing our mission to help clients plan for their future through valuable and trusted legal services,” added Britt Burner, Partner. “Judge Prudenti’s wealth of legal and administrative knowledge will be invaluable to the firm’s work and the client experience.”

For more information, call 631-941-3434.