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New York Appellate Court Decides Whether to Appoint a Guardian

4.) 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 cause 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. The court evaluator further indicated that there may be a conflict with having R.K. appointed as the 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.

5. The person’s income and assets at the present time, consist solely of Workers’ Compensation benefits in the amount of $ 1,600 per month.

Upon the testimony adduced at the hearing and the documents submitted as well as the court evaluator’s recommendation, this court finds that the person is a person in need of a guardian of his property for a limited duration. This court will not accept the person’s nomination of R.K. as his guardian due to the apparent conflict involved. The person met R.K. through his personal injury attorney with whom R.K. 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.

The role of the guardian is to represent the person’s best interests, that includes obtaining a favorable settlement for the person in his personal injury action, if the action reaches that stage. Since R.K. was introduced to the person by his personal injury attorney, it is unclear whether or not R.K. 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.

If you know someone in a similar situation as the above, refer them to Stephen Bilkis and Associates for free legal consultation. We have experts and experienced Bronx County Brain Injury Lawyers who handles special cases on brain injury claims.

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