Success in Convincing Appellate Court Justice to Override the Refusal of a Supreme Court Justice to Sign an Interim Order to Show Cause
In a guardianship proceeding in the Supreme Court, the Court appointed a non-family member as opposed to a family member to act as the guardian of an incapacitated person.
During a hearing related to the guardianship appointment before the Court, a duly licensed attorney and a non-party witness testified that he recently found an original Power of Attorney in his office which was personally prepared by him on behalf of the incapacitated person.
The Power of Attorney was signed and notarized by the incapacitated person (a mother) before she was declared to be incapacitated.
The Power of Attorney signed by the mother, the incapacitated person, appointed her son to act as her attorney-in-fact. A power of attorney by its terms survives the incapacity of the incapacitated person.
It is well settled that unless a valid Power of Attorney exists, the appointment of a guardian will not be terminated as a matter of law. The appointment of a guardian is a “last resort” and should only occur if there is no plan for the management of the affairs of the incapacitated person.
As noted, the incapacitated person (the mother) gave her son a duly executed Power of Attorney to effectively act in place for the management of her affairs, thus obviating the need for a guardian.
In light of the newly discovered Power of Attorney, the son, who was the attorney-in-fact, moved by Order to Show Cause before the Supreme Court for an order directing an expedited hearing relating to the validity and enforceability of the Power of Attorney. Incredibly, the Supreme Court Justice declined to sign the aforesaid Order to Show Cause for a hearing on the issue notwithstanding the well settled principles of law stated above. Obviously, the son was severely prejudiced by the Court’s denial to sign the Order to Show Cause.
As a result of the Court’s refusal to even sign the proposed Order to Show Cause, I moved by Order to Show Cause to the Appellate Division pursuant to CPLR 5704(a) for an order directing an expedited hearing to determine the validity and enforceability of the Power of Attorney.
Under very rare circumstances does the Appellate Division override a Supreme Court Justice’s refusal to sign an Order to Show Cause seeking relief. Notwithstanding the Appellate Division’s reluctance to override a lower court’s refusal to sign an Order to Show Cause, I was successful in convincing the Appellate Division Justice, after oral argument in his chambers, to grant my application for an order directing an expedited hearing on the Power of Attorney issue and, in connection therewith, the Appellate Division Justice deemed my Order to Show Cause executed and inserted a return date, requiring the Supreme Court to hear the application for an order directing an expedited hearing on the validity of the Power of Attorney.