Translators and Interpreters for Guardianship Proceedings with International Dimensions
Legal translation and interpreting services are often required in guardianship proceedings involving incapacitated individuals. Many guardianship proceedings increasingly have an international dimension, and require the services of legal translators and legal interpreters. Individuals once living and working in the U.S. grow older and often move back to their native country for a variety of reasons. Below are two cases that show the challenges that exist in guardianship proceedings that involve an international jurisdiction.
Foreign Guardianship Petition Filed in New York by Egyptian Guardian
In re Gabr involves a foreign guardianship petition filed in a New York court by an allegedly incapacitated person’s son. The son sought to be appointed New York Foreign Guardian of the father’s New York bank account. At the time the son filed the petition, the son was his father’s appointed guardian in Egypt and had full authority over the father’s Egyptian property.
The petitioner was his father’s son from his first marriage. In his petition, the son alleged that his father had lived and worked in the U.S. for many years prior to 2000. At that time, the father retired and moved back to his native Egypt where he established permanent residency. In Egypt, the father lived in one of the apartments he owned in Cairo. In 2001, the father married a second time. The son’s petition further claimed that his stepmother was financially exploiting his father. For example, the son claimed that following a stroke in 2002, his stepmother convinced his father to deed property he owned near the Red Sea to her.
The father had a New York bank account that was funded with his social security benefits as well as a small pension totaling approximately $1,300 per month. Evidence would later show that the son had filed for bankruptcy and had no means to support himself.
New York Guardianship Law Allows Appointment of a Foreign Guardian
New York’s Mental Hygiene Law Artcle 81.18 allows the appointment of a property guardian for someone who is absent from New York, but for whom another jurisdiction has appointed the petitioner as guardian. Whether or not to grant such a petition is in the court’s discretion. The burden of proof rests with the person filing the petition.
Before appointing a foreign guardian, the court must find the person functionally incapacitated, unable to appreciate his/her functional limitations, and without sufficient advanced directives or other measures to safeguard his/her property. Additionally, the appointment of the foreign guardian must be the least restrictive alternative and the allegedly incapacitated person’s wishes, preferences and desires must be taken into consideration, whenever possible. A New York court would only grant comity to a foreign country’s guardianship appointment if the foreign jurisdiction afforded substantially similar due process and substantive rights that also exist under the NY Mental Hygiene Law. If the court finds that a foreign jurisdiction did not afford substantially similar due process and substantive rights, a new hearing is conducted.
New York Court Looks to Egyptian Proceedings
In its decision, the New York Court looked at the son’s submissions as well as the Egyptian requirements for appointing guardians. The son had submitted an Arabic to English translation of the Egyptian court decision appointing him as guardian in Egypt.
The Egyptian court had relied primarily on tests performed by the Egyptian Forensic Medical Department, which showed physical changes in the father’s brain, but it had neither analyzed the father’s functional level nor what safeguards were in place to protect him. Additionally, Egyptian law appeared to have a gender bias in that it gave preference to the son, then father and then grandfather over other potential guardians. The Court pointed out that New York law is gender neutral and appoints the spouse before all others. Finally, in the Egyptian proceedings, the father had been required to provide evidence against himself when he was required to undergo certain medical tests. Thus, it appeared that due process and substantive rights had been denied in the Egyptian proceedings.
New Hearing Ordered in New York
The New York Court ordered a new hearing with notice to the father and his wife. Evidence at the new hearing showed that the son had been estranged from his father until a visit to Egypt in 2006. The son could not account for the money he had collected and spent as the Egyptian guardian, and the son’s claims of financial exploitation by his stepmother were untrue. Additionally, the stepmother testified that the son was not concerned about his father, but only interested in his money.
The father testified as well and, while he showed some cognitive loss, he testified that his wife had been his main caretaker since they married, that he had appointed her his healthcare proxy and attorney-in-fact, had added her to joint accounts and showed genuine affection for her. The Court Evaluator also issued a report in which the father emphatically objected to the appointment of the son as guardian and where the father explained that he had made transfers to his wife to provide for her once he was gone.
Based on all of the evidence, the court denied the son’s foreign guardianship petition and appointed the wife as personal needs guardian.
Jurisdiction Declined in Delaware Guardianship Matter
The Matter of L.Y. involved a petition by a guardian before a Delaware court to expend from a guardianship account. L.Y. was disabled. In 2003, H.J.Y. was appointed L.Y.’s guardian. In 2005, L.Y. permanently moved to South Korea.
In 2022, the guardian filed a request for reimbursement from the guardianship account claiming he had spent his own money to take care of L.Y. The guardian claimed having spent money on federal taxes, setting up a home for L.Y. and other expenses. However, the Court denied the request with prejudice because the guardian repeatedly failed to provide proof of the expenses in the form of receipts, invoice, bank statement or other documents.
Additionally, the Court declined to continue to exercise jurisdiction over the matter. L.Y. had left Delaware and had been living in South Korea for 17 years. The Court determined that it would be more appropriate if a South Korean court oversaw the guardianship as it had become L.Y.’s home state and the evidence related to the guardianship’s management was there. Also, public information indicated that South Korea had developed an adult guardianship system as of 2013 and that H.J.Y. could petition there to become guardian of L.Y. The Court thus ended H.J.Y.’s guardianship of L.Y. in Delaware.
Get in touch with All Language Alliance, Inc. to obtain certified legal translation services and legal interpreters for cases involving international guardians and foreign beneficiaries who speak Brazilian Portuguese, Amharic, Korean, European Portuguese, Canadian French, Thai, Arabic, German, Hebrew, Czech, Polish, Romanian, Persian, Hungarian, and many other foreign languages. Our legal translation, Apostille, genealogy and kinship research services company can even help you locate forgotten, unknown and/ or missing beneficiaries and heirs to guardianships, conservatorships, testate and intestate estates, and trusts who reside in foreign countries and speak various foreign languages.
In re Gabr, 39 Misc.3d 746 (2013)
Matter of L.Y., 2022 WL 20470262
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