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Victim Suffering Brain Injury Requests Guardian, NY Appellate Court Agrees


A 32-year old resident of New York was involved in an accident on Hudson Street in New York County on 12 April 2000 while he was working and fell off (slip & fall or trip & fall) a scaffold (scaffold accident or construction accident). He hit his head when he fell and suffered a brain injury. The person has a lawsuit currently pending in Bronx County. He stated that he wants a guardian to help him because he has memory problems and he needs someone to make decisions for him. The person further stated that he has attention and concentration problems, anger issues, depression and suicidal thoughts. He takes medication for his various ailments.

As a result of his limitations, the person wishes to have a guardian appointed for his property. A self-petition has been filed for the appointment of a guardian of the property of an alleged incapacitated person (hereinafter known as “the person”) where he nominated someone whom he met at his personal injury attorney’s office.

The issue is whether or not the guardianship appointment was proper and that the person appointed is acceptable.

The guardian stated that he was nominated by the person and his family to serve as the guardian after meeting with all of them at the lawyer’s office.

A New York Injury Lawyer said the court evaluator stated that when he met with the person, the person was not able to state why he wanted a guardian or what the guardianship proceedings were about. The court evaluator pointed out that the medical records did not indicate what the causes of his medical problems were. In one report, a medical expert states that he is unsure if the person’s memory problems are due to the depression he suffers from or if they are the result of the brain injury he sustained in the accident.

The court evaluator stated that even though the person indicated that he was having difficulty managing his finances, he admitted that he has not had any problems paying his bills. A Long Island Personal Injury Lawyer said the court evaluator further indicated that there may be a conflict with having the appointed guardian since the person is claiming to be a vulnerable person who needs help and his personal injury attorney is the one who introduced him to the potential guardian. The court evaluator further stated that the person should be designated a person in need of a guardian and the guardian should have the limited power of assisting the person with the litigation only.

The court finds that the person is a person in need of a guardian of his property for a limited duration but the nominated guardian is not accepted due to the apparent conflict involved. The person met the guardian through his personal injury attorney with whom he has a professional relationship. Zealously representing the interests of his proposed ward at a time when his own financial interests might be directly tied in with his associate attorney’s financial interests can amount to competing and conflicting endeavors. Even the appearance of impropriety must be avoided at all costs.

A Westchester County Personal Injury Lawyer said the guardian’s role is to represent the person’s best interests and that includes obtaining a favorable settlement for the person in his personal injury action, if the action reaches that stage. It is unclear whether or not the nominated guardian would be able to be objective since the personal injury attorney has introduced him to potential wards in the past and will likely continue to do so in the future. The financial incentive to go along with the attorney’s recommendations thereby creating the likelihood of continuing this practice of generating lucrative referrals as guardian in the future cannot be discounted.

Furthermore, the court is disturbed by the guardian’s reference to the fact that he was essentially “auditioning” for the role of guardian when he was called to the lawyer’s office to meet with the person and his family. That there may have been a certain amount of “acting” involved in that meeting is a great possibility and further firmly establishes to this court the fact that an independent guardian should be appointed for the person and not an individual he met through his personal injury attorney who very well might have a monetary stake in the outcome of the litigation.

In view of the above, the court appoints another as the guardian of the property of the person for a limited duration. The newly appointed guardian’s powers are limited to assisting the person in the personal injury litigation and limited to the duration of the litigation. However, the guardianship can be extended beyond the duration of the personal injury litigation upon good cause shown.

Have you suffered injuries or you know someone who has by reason of the negligence, lack of foresight or lack of skill of another? Do you know the legal remedies proper for your situation? Ask Stephen Bilkis & Associates. We have an experienced legal team who can ensure that your rights are protected.

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