Matter of Jane
Annotate this CaseDecided on June 25, 2007
Supreme Court, Otsego County
In the Matter of the Application of ROSEN, Petitioner Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Person and Property of Jane, an Incapacitated Person.
L-747
James E. Konstanty, Esq.
Attorney for Rosen
252 Main Street
Oneonta, NY 13820
Carol Malz, Esq.
Attorney for Jane
554 Main Street
Oneonta, NY 13820
Dolores G. Fogarty, Esq.
Guardian of the property
183 Main Street, #1, PO Box 727
Unadilla, NY 13849
Eugene E. Peckham, J.
There has been submitted to the court for approval a proposed decree settling this contested accounting. The accounting was filed by Rosen (hereafter "Rosen") as Article 81 guardian of her mother, Jane (hereafter "Jane"). Objections to the account were filed on behalf of Jane by Carol Malz, Esq., her court appointed attorney. The Court approves the decree settling the Account for reasons hereafter set forth.
Rosen was originally appointed as conservator of her mother in Virginia. After moving [*2]to New York she petitioned pursuant to Article 81 of the Mental Hygiene Law to be appointed as guardian for her mother in New York. Jane currently resides in a nursing home in Oneonta, NY The Commissioner of Accounts in Virginia transferred jurisdiction of her accounts to New York. Carol Malz, Esq. was appointed as attorney for Jane Simmons in the Article 81 proceeding. Due to questions about the accounting filed in Virginia, Rosen was directed to file a complete accounting of her actions in both Virginia and New York. The accounting when filed revealed that Rosen had made loans to herself from her mother's assets without court authorization. Objections to the account were filed by Ms. Malz as attorney for Jane.
In the Article 81 proceeding, Jane was found to be incapacitated. Because of the unauthorized loans made by Rosen, a neutral attorney, Dolores Fogarty, Esq., was appointed by this Court as guardian of the property of Jane. Rosen was appointed as her mother's guardian of the person.
Rosen has reimbursed the guardianship account $60,000, which exceeds the loans taken of $58,326.36 as shown on the account.
A motion for summary judgment to dismiss the objections resulted in a decision by this Court dismissing certain objections, but finding that questions of fact existed as to other objections. The principal issues remaining are: 1) whether or not work performed on Rosen's house to make it handicap accessible for Jane was reasonable or necessary for Jane's benefit and the cost thereof; 2) whether or not the purchase of a handicap accessible van was reasonable or necessary for Jane's benefit; and 3) whether or not Rosen should be surcharged for her actions.
The proposed settlement is that Rosen will pay an additional $30,000 back to the guardianship account, $5,000 by May 11, 2007 and $25,000 on or before December 1, 2007 with interest at 9%. The $25,000 is being loaned to Rosen by her father. The $60,000 and $5,000 payments were also loaned to her by her father. Her father is divorced from her mother.
A very important factor in the Court's approval of the settlement is that it has been approved by Dolores Fogarty, Esq., as guardian of the property of Jane, by letter dated June 22, 2007. Rosen has submitted to the Court a sworn statement of financial condition showing that she has negative net worth. Although she owns her personal residence it is encumbered by a mortgage. In addition, she has student loan debt of over $100,000, credit card debt and the loan from her father to pay. A second factor in the decision to approve the settlement is the difficulty of collecting anything further from Rosen.
A third factor is that first as conservator in Virginia and now as guardian of the person in New York, she has been taking care of her mother, even though she is now in a nursing home. Not everyone is willing to take on the burden of caring for an elderly parent with dementia. There have been no substantive complaints of the personal care that has been provided.
A final factor is that the last annual report filed by the guardian of the property shows that the funds in the guardianship account have been exhausted. Jane's nursing home bill is currently covered by Medicaid. The funds to be recovered will cause a loss of Medicaid for a short while and then Jane will be back on Medicaid.
Ms. Malz in her capacity as appointed attorney for Jane is opposed to the proposed settlement. CPLR §1201 says "...a person judicially declared to be incompetent shall appear by the committee of his property, and a conservatee shall appear by the conservator of his property." Obviously this provision has not been updated or amended since the passage of Article 81. The [*3]meaning, nevertheless, seems clear that a person determined to be incapacitated in an Article 81 proceeding appears in a civil action by her guardian of the property.
M.H.L. §81.21(a)(20) states that among the powers that may be granted to a guardian is the power to "defend or maintain any judicial action or proceeding to a conclusion." The Judgment appointing Dolores Fogarty, Esq., as guardian of the property provides that she has the power to "prosecute, defend, settle and maintain any cause of action, arbitration or civil judicial proceeding. Any settlement shall require the approval of the Court." This judgment is final since it was not appealed. Thus it is the guardian of the property who has the right to agree to the proposed settlement and apply to the Court for its approval.Tudorov v Callazo
215 AD2d 750 (2d Dept. 1995); Matter of Bernice B, 176 Misc 2d 550 (Surr. Ct. New York Co.-1998).
It is basic law that a client decides whether or not to accept a proffered settlement, not the attorney. Hallock v State 64 NY2d 224 (1984); Code of Professional Responsibility, EC 7-7; Model Rules of Professional Conduct §1.2.
Since Jane has been found to be incapacitated and a guardian of the property has been appointed for her, Malz' client has now become the guardian of the property as the authorized representative of Jane. Tudorov v Callazo, supra. The decision whether or not to accept the proposed settlement rests with the guardian as provided in the judgment appointing the guardian of the property and the Mental Hygiene Law. The fact that Ms. Malz, as attorney, objects is irrelevant. A client is not required to follow the wishes or advice of her attorney.
For the foregoing reasons the settlement is approved. The decree submitted has been signed.
Dated: June 25, 2007___________________________________
Acting Supreme Court Justice
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