Attorney and Guardian for Incapacitated Individual Can Invoke Attorney-Client Privilege on Her Behalf

A New York trial court allows the attorney and guardian for an incapacitated individual to invoke attorney-client privilege to prevent her former attorney from testifying in a guardianship proceeding. In the Matter of Nunziata (N.Y. Sup. Ct., Nassau Cty., No. 850023-I-2021, May 21, 2021)

Nancy K. hired attorney Alexander von Kiel to create advance directives for her, including a power of attorney and living will. She also married William McEnaney. The county department of social services initiated a guardianship proceeding to appoint an independent guardian for Nancy and to void the marriage and the advance directives. The court appointed a temporary guardian and attorney for Nancy. Mr. McEnaney cross-petitioned to be appointed guardian.

At trial, Mr. McEnaney’s attorney questioned Mr. von Kiel about conversations he had with Nancy pertaining to the advance directives, but Nancy’s attorney objected, invoking attorney-client privilege. Mr. McEnaney argued that Nancy would want the attorney-client privilege lifted because the attorney’s testimony would provide evidence regarding her intentions and mental capacity.

The New York Supreme Court, Nassau County, sustains the objection. According to the court, this situation is similar to doctor-patient privilege, which can only be waived “if the alleged incapacitated person waives the privilege, or affirmatively places his or her mental condition in issue by contesting the allegations against him or her and affirmatively asserting her mental condition at trial.” The court finds that neither Nancy’s guardian nor attorney “affirmatively placed the subject matter of the privileged communications between [Mr.] von Kiel and Nancy K. in issue.”

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