Matter of W.E.
Annotate this CaseDecided on March 31, 2005
Supreme Court, Bronx County
In the Matter of the Appointment of a Guardian for W.E., A Person Alleged To Be Incapacitated.
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Alexander W. Hunter, J.
A petition has been filed for the appointment of a guardian of the person and property of W.E., an alleged incapacitated person (hereinafter known as "the person"). The Court, having been satisfied that the person was served with the order to show cause and petition by personal delivery at least fourteen days prior to the return date, and that all other persons required to be served under Mental Hygiene Law section 81.07 were timely served with the order to show cause and petition, appointed a court evaluator, L.K., Esq.
The hearing was held on March 28, 2005. The person was present and testified. R.E., the person's husband, also testified.
FINDINGS OF FACT
It is determined that the following findings of fact were established by clear and convincing proof upon the documentary evidence submitted and the testimony adduced:
The person is 41 years of age. The person presently resides at her home at *******.
The person had been employed as a data entry clerk by ******, which was located on the 55th floor of 2 World Trade Center, when the attack occurred on September 11, 2001. The person was able to safely escape from the building and has been nervous, anxious, and worried, since that day.
Both the person and R.E. testified that the person signed a waiver that was executed by all claimants to the Federal Victim's Compensation fund established as a result of the September 11th attacks. The person received approximately $5,000 in compensation from said fund.
The court evaluator, through her report, which was entered as a court exhibit, informed the court that the person did not fully understand the nature of the Article 81 proceeding and was "offended by the word 'incapacitated' because it was clear she was not incapacitated." (Court evaluator's report, p. 5, para. 12). The person reported to the court evaluator that she believed her husband brought the petition because he was "upset" that she had signed the waiver without advising him. (Court evaluator's report, p. 5, para. 12).
R.E. testified that he brought the petition in an attempt to obtain more compensation. He testified that "someone" advised him that if he brought an Article 81 proceeding in order to have his wife declared incompetent, he would be able to nullify the waiver and obtain a greater financial award from the fund or in a court of law by commencing a lawsuit. [*2]
R.E. further testified that his wife was not, in fact, incapacitated although she has been in psychiatric treatment and has been on medication since September 11, 2001. In addition, he testified that his attorney advised him to withdraw the Article 81 petition as a result of the court evaluator's recommendation.
Upon conducting her investigation, the court evaluator determined that neither the person nor R.E. was satisfied with the amount of the compensation they received from the victim's fund. R.E. further informed the court evaluator that he brought the petition in order to rescind the waiver on the grounds that the person was incapacitated at the time she executed it.
The court evaluator concluded that the person is not in need of a guardian and asked that the petition be denied because there is no clear and convincing proof that the person requires a guardian. The court evaluator further recommended that the costs of this Article 81 proceeding be paid by the petitioner. Petitioner's counsel objected to said recommendation.
This court grants the application by petitioner to withdraw the petition for the appointment of a guardian of the person and property of W.E. There is no evidence that the person is incapacitated and in need of a guardian. However, this court is troubled by the fact that petitioner admitted in open court that the reason he brought the petition was to attempt to obtain more compensation from the September 11, 2001 (9/11) victim's compensation fund or by way of a lawsuit.
It has been determined that Article 81 proceedings, "...should be the last resort for addressing an individual's needs because it deprives the person of so much power and control over his or her life." (McKinney's Practice Commentaries, 1996, section 81.01). Accordingly, an application for the appointment of a guardian for the person or property of an individual should not be taken lightly and should certainly not be used as it was in this instance, as a mechanism to annul the execution of the waiver, in order to obtain more compensation. Mental Hygiene Law section 81.09 states, "When a judgment denies or dismisses a petition, the court may award a reasonable allowance to a court evaluator, including the mental hygiene legal service, payable by the petitioner or by the person alleged to be incapacitated, or both in such proportions as the court may deem just." See also, Matter of Petty, 256 AD2d 281 (1st Dept. 1998); Matter of Geer, 234 AD2d 939 (4th Dept. 1996). Accordingly, any costs incurred in bringing said petition, should be borne by the petitioner/client, R.E. R.E. admitted to this court that his wife was not incapacitated and he consented to withdraw the petition only after he was informed by his attorney of the court evaluator's recommendation.
It is evident to this court that were it not for the court evaluator's investigation and recommendation, petitioner may have improperly continued with this action and ultimately prevailed by successfully perpetrating a fraud on this court. Despite petitioner's opposition, the court evaluator is obligated to file a report with the court under Mental Hygiene Law Section 81.09(5) in which she reports the findings of her investigation and her recommendation, particularly in a case such as this one where the petition was not brought in good faith based on any documented proof, not one scintilla of credible evidence, that the person was incapacitated. The testimony at the hearing proved that the only reason petitioner brought this application was to obtain more money for himself.
The court evaluator was advised by this court to submit her report despite petitioner's decision to withdraw the application prior to the date of the hearing. If not for the court [*3]evaluator's finding that the person was not incapacitated, there is no indication that petitioner would have withdrawn the application on his own initiative nor that his attorney would have advised him to do so. The court has a duty to make a determination in cases such as this one, where it appears that a fraudulent scheme was about to unfold.
Accordingly, the petition is hereby dismissed and the petitioner is directed to pay the costs of said proceeding, including the fees incurred by the court evaluator. Petitioner's counsel is directed to settle an order.
This constitutes the decision and order of this court.
Date: March 31, 2005
J.S.C.
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