Social services of New York City tried to appoint a guardian for a 93-year-old man. The allegedly incompetent senior citizen spent most of his time in bed, babbling in German, and was unable to care for himself or his property. His overwhelmed wife could no longer function as his caregiver. Social services, however, was thwarted in its attempts to serve him with notice of process of the guardianship petition. The elderly gentleman did not accept the petition papers.
The process server made three attempts to serve the documents. On the first attempt, he rang the intercom for the man's apartment. A male voice reportedly answered, "Yes, what is it?" The process server responded that he had papers from social services. The buzzer that would allow access to the building remained silent. On the following two occasions, the process server said that no one answered the intercom bell. Social services asked the court to allow an exception to the rules of service and permit the mailing of the legal papers to the man at his residence.
Personal delivery of notice is a major goal of the statute governing guardianship petitions. [See MHL sec 81.07(d)(2)(i)]. Exceptions to the rule are limited, and the state bore the burden of proving that the man deliberately attempted to resist service.
Holding: The Court permitted social services to mail the petition. The man was aware that he was about to be served with papers, said the Court, and he "affirmatively sought to evade service" when he learned of the identity and purpose of the process server and refused to allow access to the building.
 | Abraham Halpern, M.D. Professor Emeritus New York Medical College |
Dr. Halpern comments: Let us accept the psychiatrist's clinical assessment even though he, as well as the judge, appear to have viewed as a sign of mental disorder the patient's referring to himself as "Fritz." (Persons named Fred commonly use the nickname Fritz, including former Vice-President Walter "Fritz" Mondale). The patient's judgment and insight were noted to be poor and he was considered unable to perform various activities of daily living, including eating, bathing, shopping, toileting or dressing. He should have been urged to accept hospitalization and, if he refused, steps should have been taken to effect a non-emergency two-physician involuntary certification.
New York [Mental Hygiene Law sec. 9.27] authorizes involuntary admission on non-emergency medical certification when a mentally ill person poses a substantial threat of harm to self or others. As a matter of specific relevance to this case, "substantial threat of harm," according to the Mental Hygiene Law, may encompass the person's refusal or inability to meet his "essential need for food, shelter, clothing or health care." Thus, the matter of notice with regard to allegations that he was incompetent could have been appropriately and effectively handled by serving notice on "the chief executive officer in charge of the facility" as provided by MHL sec. 81.07(d)1(ix).
Negativism, or resistance to approach, is quite common in dementia. To some degree, it provides primitive protection to the confused. On the other hand, it makes for a contentious response to an unfamiliar approach, such as the serving of an order.
Steps should have been taken to effect involuntary admission.
Excessive concern with legal technicalities and an overabundance of due process may work to the detriment of the mental and physical health of the patient. This is well covered in [Darold Treffert's lament, "Dying With Your Rights On," Prism, Socioeconomic Magazine, AMA, 2(2):49-52, 1974] and Stephen Rachlin's protest, "With Liberty and Psychosis for All." [(Psychiatric Quarterly, 48(3); 4 10-20, 1974)].
Editor's Note: The subject of the guardianship proceeding died before the court's opinion was written.
