Elder Abuse, Guardianship and The Brooke Astor Case (2007)
by Debra Sacks, LPN, JD, Senior Staff Attorney, Sadin Institute on Law & Public Policy
Brookdale Center for Healthy Aging & Longevity of Hunter College (CUNY)

There has been a growing awareness of elder abuse in recent years. In light of the publicity surrounding the guardianship proceeding for NY socialite, philanthropist Brooke Astor and the allegations of neglect and mistreatment it seems the issue has come to the forefront in the media. As Judge John E. H. Stackhouse (the presiding judge in the Astor guardianship case) has stated,

"There is great public interest in this case because it focuses the spotlight on the problem of the neglect and mistreatment of the elderly in our society. The contrast between Mrs. Astor's extensive wealth and public importance and her living conditions at the time of the commencement of this proceeding show that elder abuse can be present in all socioeconomic communities in the United States. Moreover, it is a matter of increasingly public concern as the demographics promise a greater percentage of older Americans in the next thirty years."

As a response to elder abuse many states have been updating their guardianship and Penal laws to address these issues. Likewise, national legislation, such as the Elder Justice Act, has been introduced to afford protections and remedies for the elderly in these situations. All states have guardianship laws to protect individuals who are unable to make personal and/or property decisions for themselves. Through a legal proceeding, a court appoints a guardian to assist individuals, found to be incapacitated, with personal needs and/or property management needs. New York has two guardianship statutes; Article 81 of the Mental Hygiene Law for all adults and Article 17-A of the Surrogates Court Procedure Act for the mentally retarded and developmentally disabled population.

The Article 81 guardianship Petition, filed by Phillip Marshall seeks to remove his father (Mrs. Astor's son) Anthony Marshall as caregiver for Mrs. Astor who is 104 and to void the power of attorney over her finances and health care proxy given to Anthony Marshall. The petition contends that over the past several years Anthony Marshall has been enriching himself with the income from Mrs. Astor's estate while simultaneously neglecting her living conditions, medications and doctor visits.

Article 81 of the Mental Hygiene Law, authorizes the appointment of a guardian whose authority is appropriate to satisfy the needs of an incapacitated person, either personal or financial, while at the same time tailored and limited to only those activities for which a person needs assistance. The standard for appointment under this procedure focuses on the decisional capacity and functional limitations of the person for whom the appointment is sought rather than on some underlying mental or physical condition of the person.

A guardian is a fiduciary and as such must act with trust, loyalty, and fidelity, making well-reasoned decisions that protect the personal and pecuniary interests of the incapacitated person. Thus a legal guardianship creates a very high standard of responsibility and accountability. To monitor the appointment, the guardian is required to submit initial and annual reports to the court.

If financial exploitation is suspected, as in the Astor case, Article 81 provides for restraining orders on bank accounts and powers of attorney (Section 81.23) additionally the Court can require an accounting by a previously appointed agent, such as a power of attorney, and revoke the powers if the court determines there has been a breach of fiduciary duty (Section 81.29(d)). Once appointed, a guardian can initiate a Summary Discovery Turnover Proceeding (Section 81.43 of the Mental Hygiene Law) to allow the guardian to discover if property of the incapacitated person has been wrongfully taken or withheld and have the court order the turnover of these proceeds to the guardian.

Thus Article 81 provides both short term and ongoing protections for the alleged incapacitated person. It is a law that recognizes every situation is unique and may require very different solutions. The beauty of Article 81 is that it is flexible enough to address the needs of each individual. It is hoped that Mrs. Astor will be assisted by Article 81 in the least restrictive way possible by addressing her unmet needs and protecting her from any future abuse or neglect and allowing her the respect deserved as the "grand dame of American philanthropy".

As a major tool for caring for incapacitated elderly persons the Brookdale Center for Healthy Aging & Longevity takes an active role in guardianship policy both at the state and national levels. The Sadin Law Institute was involved in the development of Article 81, its implementation and recent amendments. The Law Institute regularly conducts Article 81 trainings in NYC and around the state for professionals and court appointed guardians.