If someone prevented you from seeing a family member for the holidays, failed to tell you a family member fell sick, or worse, failed to notify you of a loved one’s funeral, what would you do?

Catherine Falk, daughter of the late Peter Falk, who portrayed Lieutenant Columbo on the TV series “Columbo,” faced these scary questions. Ms. Falk’s stepmother, who was Peter Falk’s legal guardian, failed to notify her of changes in her father’s condition, prevented her from visiting her father before his death and failed to notify her of her father’s funeral. Catherine was outraged at being deprived of spending time with her father during his final days spent suffering from Alzheimer’s disease and isolated from family and friends. Thus, she fought to pass legislation to address the issues of visitation and notice raised under New York Mental Hygiene Law (“MHL”) §81.16(c).

This is just one example of many high profile cases in which adult children are denied the right to visit an incapacitated parent or loved one.

On July 21, 2016, Governor Andrew M. Cuomo signed Peter Falk’s Law (A.3461-C/S.5154-C), which among other things, requires guidelines for end of life notices and visitation rights for incapacitated individuals who are the subject of legal guardianship proceedings.

The bill amends MHL §81.16(c), to require the court order appointing a guardian to identify person(s) entitled to receive notice of the incapacitated person’s (“IP”) death, funeral and burial arrangements. Moreover, the bill allows the order to identify person(s) entitled to receive notice if the IP is transferred to a medical facility. Finally, the bill allows the order appointing Guardian to identify, but does not limit, the number of person(s) entitled to visit with the IP.

Prior to the amendment, MHL §81.16(c) required that the court issue an order that was the least restrictive form of intervention for the IP, and limited the guardian’s powers to only those necessary to protect the IP. The amendment now requires the court to specifically consider visitation and notice issues.

These changes assist in protecting the rights of relatives and those close to the incapacitated person. Hopefully, it will prevent future guardians from improperly isolating the incapacitated person, or limiting  visitation rights without court approval.

The New York Law Journal published an informational article on this subject on August 18, 2016 entitled “Celebrity Guardianships Lead to Amendment of New York Statute.” The article discusses the implications of the new bill, and whether it was necessary to amend MHL §81.16(c) to include these provisions. Specifically, the article raises concerns about the amendment’s potential restriction on Public Health Law §42.01.  It questions the fact that Public Health Law §42.01 already allows a competent individual to sign a document naming a person to have the authority to control his or her physical remains after death. Moreover, if a person does not write such a directive, Public Health Law elucidates who has authority to act. Public Health Law gives the designated agent complete authority over remains. There is now some distress that the new amendment to MHL restricts the agent’s authority by requiring the court to notify certain persons. Furthermore, there are questions as to whether the amendment is necessary with regard to visitation of the IP. It is argued that MHL already addresses issues of visitation and notification under section 81.22, which requires that the court order take into account the IP’s personal wishes, preferences and desires.

It is not clear that the amendment contradicts current law. Rather, it may work with existing statutes to confirm that everyone who is interested in the IP will obtain necessary information regarding the IP. This amendment brings to light a recent shift in the understanding of a guardianship proceeding. The amendment focuses on who is entitled to notice and the feelings of family members, rather than a complete focus on the IP. The statute remains clear that the overarching goal is what is in the best interest of the IP, but we should be careful as we discuss these cases that the notifications we are giving are in the best interest of the IP and not just in the best interest of a family member.

Peter Falk’s Law is important as it provides another mechanism to protect an IP from the abuse of a guardian, specifically preventing a guardian from isolating an IP to his or her detriment. It also provides a wonderful way for a child to have notice of a change in his or her parent’s condition if the child is not the named guardian, such as in Catherine Falk’s case.  However, we should be careful when invoking the use of this law, that it is in fact for the benefit of the IP, and not solely in the interests of the family members.

Learn more about elder law,  estate planning and special needs planning at http://www.elderlawnewyork.com  & www.littmankrooks.com. Have questions about this article? Contact us.

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