Adult guardianship proceedings reveal to complete strangers some of the most intimate and personal details of a person’s life. “Guardianship proceedings are unique and different from most other forms of litigation since the respondent, the individual haled into court against their will because she or he is alleged to be ‘incapacitated’, is not accused of wrongdoing or fault,” wrote Justice Gary F. Knobel in Matter of Amelia G.
The rules governing public access to Mental Hygiene Law article 81 cases in New York are often inconsistent, fact-specific, and vary between counties. This not only applies to the sealing of court records, but to public access in general. This may be for the best, given the competing interests of an alleged incapacitated person’s (AIP) right to privacy and the public right to access court records. But it leaves the adult guardianship practitioner with limited guidance.
Pursuant to Mental Hygiene Law (MHL) § 81.14(b), the court may, upon a written finding of good cause, specifying the grounds thereof, enter an order sealing the court records in an article 81 adult guardianship proceeding. In determining whether good cause has been shown, the court “shall” consider:
- the interest of the public;
- the orderly and sound administration of justice;
- the nature of the proceedings; and
- the privacy of the AIP.
The Case Law
There is little, if any, appellate authority on the topic of sealing court records in article 81 proceedings, and the trial-level decisions are fact-specific.
In re Amelia G., the Nassau County Court pointed out that New York follows the majority rule in mandating that public access to documents in adult guardianship proceedings are “presumptively permitted, unless a litigant sufficiently demonstrates to the court ‘good cause’ why the record should be sealed in accordance with Mental Hygiene Law § 81.14.”
In re Amelia G., the cross-petitioner, who was not related to the AIP, moved to seal the record in the proceeding. The Court denied the cross-petitioner’s motion, reasoning that the petition contained serious allegations of financial exploitation and overreaching, including manipulation of the “vulnerable” and “very wealthy” AIP whose real estate holdings were worth tens of millions of dollars. The Court also reasoned that the privacy rights and best interests of the AIP were paramount in considering whether to seal the record, not the other litigants (including the cross-petitioner). It was for these reasons that the court denied the cross-petitioner’s motion.
Compare in re Amelia G. with in re DOE, where the Nassau County Supreme Court sealed the record, finding that access could be embarrassing and damaging for the AIP, and where there was no public interest in the proceeding.
In re DOE, the petitioners commenced a guardianship proceeding to have a guardian appointed for their troubled teenage son. The petition was presented to the Court just two months shy of the AIP’s 18th birthday.
The Court denied the application, reasoning that the AIP’s substance abuse and other troubling behavior did not constitute functional limitations. The Court held that the “bottom line is that this young man has the capacity to understand his problems and it was not shown that he is otherwise functionally incapable.” Turning to its reasoning as to why it sealed the record:
[A]t the subject hearing we determined and directed that the records be sealed. This was based on a finding of good cause that first, disclosure of confidential medical and treatment information (citation omitted) would be potentially embarrassing and damaging to respondent, particularly with respect to his relationship with his parents and further treatment of his problems (including his alcohol and substance abuse [citation omitted]). Second, there was no indicated public or other interest in disclosure of these essentially personal proceedings outweighing such potential injury (citation omitted).
Contrast the (relatively) unknown and obscure AIPs in re Amelia G. and in re DOE to Brooke Astor, perhaps the most famous AIP in New York history. In Matter of Astor, the AIP, Brooke Astor, was a “104-year old New York philanthropist and socialite who has been at the center of New York society for decades.”
In Matter of Astor, the New York County Supreme Court issued an interim order sealing the court file, but several news organizations moved to vacate the order arguing a right of public access.
The petition in Matter of Astor contained allegations that the AIP’s son, who was serving as her agent under a power of attorney, had neglected and mistreated the AIP for years, and allowed his mother to “live in less than adequate living conditions and has cut back on necessary medication and doctor’s visits, while enriching himself with income from her estate.”
The Court held that the file should be sealed only with respect to the AIP’s medical records, mental health records, nursing records, and the court evaluator’s report. Financial records would not be sealed, except bank and brokerage account numbers, the AIP’s social security number, and other identifying personal financial information was required to be redacted before submission to the Court.
The Court reasoned, among other things, that full public access to the Brooke Astor proceeding would hinder the court evaluator’s ability to perform its duties, there was no evidence or suggestion that media coverage was causing the AIP any emotional or physical distress, and the scope of the allegations were a legitimate public concern.
These cases demonstrate the fact-specific nature of an MHL § 81.14(b) analysis where the court is required to balance the interest of the public; the orderly and sound administration of justice; the nature of the proceedings; and the privacy of the AIP. Unknown elderly millionaire? Not sealed. Trouble teenager? Sealed. Famous New York socialite? Sealed in part.
Despite the statute’s clear directive that article 81 guardianship cases are, by default, not sealed, many courthouses make access to files in these cases far more difficult than most other civil cases. Guardianship cases are routinely secured by the Clerk of the Court, even if they are not sealed.
For example, New York County’s Supreme Court Records On-Line Library (“SCROLL”) makes online review of the docket in any given civil case fairly easy. However, searches for article 81 guardianship cases in New York County, even those without any sealing order, generate the message: “DOCUMENTS SCANNED FOR THIS CASE ARE BLOCKED FROM VIEW.”
One must physically travel to the courthouse to review the file.
On the other hand, the Bronx County Clerk’s Office does give online public access to the docket, but does not authorize access to the documents themselves.
With the COVID-19 pandemic disrupting normal court procedures and protocol, many counties now require practitioners to electronically file (E-File) documents in article 81 guardianship matters using NYSCEF, New York’s electronic filing software. I attempted to review the records of various guardianship matters I’m working on as guest on NYSCEF, but could not obtain access to the file. I called the Queens County Clerk, and was able to confirm that, in Queens, in order to review an E-Filed guardianship case that one is not a party to, they must physically travel to the County Clerk’s office or make a request for documents by mail. The same general rule governs in New York County.
Also causing confusion is the somewhat contradictory provision of MHL § 81.07 which requires that at the commencement of the proceeding the petition must be served upon the AIP, the court evaluator, and counsel for the AIP. Yet, interested parties (even those as close as a spouse and children) are only entitled to a copy of the Order to Show Cause.
In re Amelia G., the Nassau County Court observed that:
Although guardianship proceedings are open to the public to observe, many Article 81 practitioners assume that all county clerk guardianship case files are sealed and shielded from public view in the same manner that documents in matrimonial cases are prohibited from disclosure to anyone other than the parties, their attorneys and court personnel (citation omitted). This is possibly due in part to the fact that Mental Hygiene Law 81.07(f) limits the service of the petition to only the alleged incapacitated person, his or her attorney, and the court evaluator, and that interested parties are only entitled to be served with a copy of the order to show cause.
Nothing in the statute specifically prohibits the petitioner, or any other party, from sharing the petition with interested parties, but many judges prohibit it and the statute appears to infer that it’s not proper.
Judges also consistently require the court evaluator to seek permission before sharing their report with the parties prior to a hearing. Although there is no specific rule in the statute in this regard, it is a common practice, and is customary. Judges prevent the disclosure of the court evaluator’s report without authorization in order to ensure no private information is revealed unnecessarily, such as social security numbers.
MHL § 81.12(b) only authorizes the admission of the court evaluator’s report into evidence if the court evaluator testifies and is subject to cross examination. If the report is admitted into evidence, it may or may not become part of the public record.
Finally, published decisions in article 81 cases often redact the names of the AIP from the caption or title. According to the the New York Law Reports Style Manual: “If reference to protected personal names is necessary, use real or fictitious initials or other formats that shield the person from identification. For example, George Jones may be replaced by George J., or G.J., or George RR or Anonymous.”
The rules governing public access to Mental Hygiene Law article 81 cases in New York are often inconsistent, fact-specific, and vary between counties. This not only applies to the sealing of court records, but to public access in general. Uniform and consistent rules would create a greater level of predictability, but could reduce the level of flexibility necessary to balance an AIP’s right to privacy with public access to court records.