## Facts

- Adult Protective Services found Mollie Orshansky, an 87-year-old D.C. resident living alone, malnourished and in a self-neglecting condition; she was later found on her apartment floor and hospitalized.
- The hospital petitioned the D.C. Superior Court (probate division) to appoint a guardian and conservator based on a medical report diagnosing progressive dementia and inability to manage personal needs or finances.
- Orshansky had executed a health-care power of attorney naming her niece, Jane Pollack, as agent.
- Pollack sought to discharge Orshansky into her care; after the hospital refused, Pollack removed Orshansky to New York and arranged a live-in aide and medical care near Orshansky’s sister.
- After an emergency hearing, the probate court (without explanation) deemed the health-care proxy void, found the New York removal improper, appointed Harry J. Jordan as temporary guardian and conservator, and appointed Tanja H. Castro as Orshansky’s attorney.
- At the permanent hearing, Castro had not consulted Orshansky, waived Orshansky’s presence, and conceded incapacity; Jordan recommended D.C. nursing-home placement despite testimony that Orshansky was well cared for in New York.
- Orshansky’s assets were largely held in a trust managed by Orshansky and her sister as co-trustees; the sister was paying Orshansky’s expenses.
- The probate court found incapacity, appointed Jordan as permanent guardian and conservator, ordered Orshansky returned to D.C. with 24-hour care, and removed Orshansky as co-trustee, substituting Jordan.

## Issues

1. Whether Pollack, as niece and named health-care agent, had standing to appeal the guardianship and conservatorship orders.
2. Whether the D.C. Superior Court retained jurisdiction to proceed after Pollack removed Orshansky to New York.
3. Whether the probate court complied with statutory requirements by appointing an unrelated fiduciary as guardian and conservator and displacing Orshansky’s existing arrangements, including her health-care proxy, trust structure, and family care plan.

## Decision

- Pollack had standing because she was sufficiently aggrieved by orders overriding Orshansky’s expressed arrangements and designations.
- The probate court retained jurisdiction; jurisdiction attached when the petition was filed based on Orshansky’s D.C. residence and the D.C.-based events prompting the petition, and was not defeated by unilateral removal to New York.
- The appointments of Jordan as permanent guardian and conservator were reversed and the case remanded because the probate court did not follow the statutory safeguards and preferences governing guardianship and conservatorship.

## Legal Principles

- Guardianship and conservatorship are extraordinary interventions and require strict compliance with statutory procedures designed to protect the subject’s rights.
- Courts must consider less restrictive alternatives and the individual’s prior incapacity planning (including powers of attorney and trusts) before imposing guardianship or conservatorship.
- When departing from an individual’s expressed preferences or existing family-based arrangements, the court must conduct a reasoned analysis and make adequate findings supporting the departure.
- Counsel appointed for the alleged incapacitated person must consult with the client and protect core participation rights; waiver of presence and concessions of incapacity without consultation raise serious procedural concerns.
- Financial interventions must be tailored to necessity; displacing functioning trust arrangements may exceed what the record and least-restrictive-alternative requirements justify.

## Conclusion

The court upheld jurisdiction and Pollack’s standing but reversed the guardian and conservator appointments because the probate court failed to apply statutory safeguards requiring careful consideration of Orshansky’s preexisting planning and less restrictive family arrangements, and remanded for further proceedings consistent with those requirements.


In re Mollie Orshansky, 804 A.2d 1077 (D.C. 2002)