Matter of Bonnie H. (Bonnie O.)

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[*1] Matter of Bonnie H. (Bonnie O.) 2016 NY Slip Op 51723(U) Decided on December 6, 2016 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 6, 2016
Supreme Court, Dutchess County

In the Matter of the Application for the Appointment of a Guardian by Bonnie H., Petitioner, FOR Bonnie O., A Person Alleged to be Incapacitated.



2012/2016



BETHANY A. RALPH, ESQ.

Attorney for Petitioner

3294 East Main Street

P.O. Box 7

Amenia, New York 12501

PAUL O. SULLIVAN, ESQ.

CORBALLY, GARTLAND AND RAPPLEYEA, LLP

Attorneys for the Bonnie O.

An Alleged Incapacitated Person

35 Market Street

Poughkeepsie, New York 12601

GENOVEFFA FLAGELLO, ESQ.

MENTAL HYGIENE LEGAL SERVICE

Court Evaluator

One Civic Center Plaza, Suite 304

Poughkeepsie, New York 12601

KYLE A. STELLER, ESQ.

Former Attorney for Bonnie O.

An Alleged Incapacitated Person

McCabe & Mack, LLP

P.O. Box 509

Poughkeepsie, New York 12602
James D. Pagones, J.

Petitioner Bonnie H., daughter of the alleged incapacitated person (hereinafter "AIP"), seeks a plenary guardianship of the personal care and property management needs of her mother, Bonnie O. The AIP cross-moves for an order dismissing the action, ordering the return of her property, restraining the petitioner from having future contact with her and reimbursement of attorney's fees. While not styled as a cross-motion to dismiss, pursuant to CPLR 3211, the relief requested clearly urges outright dismissal of the underlying petition.



The following papers were read:

Notice of Article 81 Petition and Order to 1-15

Show Cause-Petition-Exhibits A-M

Notice of Motion and Cross-Petition-Motion 16-25

and Verified Petition-Affirmation-Affidavit-

Affidavit-Exhibits A-E

Affidavit in Opposition-Affidavit-Exhibits A-F-26-34

Affirmation of Service

Reply Affidavit-Affidavit of Service 35-36

Report of Court Evaluator-Exhibits A-P 37-53

Affirmation of Legal Services-Affidavit of Mailing 54-55

By way of background, the AIP is a ninety (90) year old resident of Stanfordville, New York. The AIP has two children, Bonnie H., the petitioner, who is also a resident of Stanfordville and Nancy H., a resident of Long Beach, California. The petition alleges that the AIP suffers from dementia. Petitioner states that the AIP resides in her home with the assistance of Alice S., her former aide, who used to come for a half day every day except for Sunday. The aide allegedly shopped, cooked, cleaned, administered the AIP's medication, did laundry, bathed and dressed the AIP. Prior to the petition, it is alleged that the aide assisted the AIP with paying bills, by writing checks for the AIP to sign.

In opposition to the petition and in support of her cross-motion to dismiss, the AIP submits her own affidavit. The affiant states that:

"I am quite disturbed to find out that this action has been commenced. I adamantly deny that I suffer from any incapacity or that I cannot manage my affairs. To this day, I am independent and perform most of the chores around my house. I cook and I do housecleaning, including laundry. I am also extremely proud of the garden that I oversee and help maintain."

The AIP maintains that the relationship between herself and the petitioner has been estranged for a number of years. The AIP states that in contrast the relationship between the AIP and her other daughter, Nancy H., has always been extremely close. It is the feeling of the AIP that the only reason this action has been commenced is that the petitioner wants her home and money. The AIP indicates that she has made arrangements for her daughter Nancy to act as her power of attorney to attend to her personal affairs now and in the future should she become incapacitated.

The Court also must consider the report of Court Evaluator, Genoveffa Flagello, Esq., Associate Attorney employed by Mental Hygiene Legal Service, Second Judicial Department. The Court Evaluator, after reviewing numerous documents and interviewing a number of individuals, concluded that dismissal of the petition is warranted. Citing to documentary evidence, the court evaluator concluded that the most grievous allegations in the petition regarding the property of the AIP being converted by Nancy are not substantiated. Further, the AIP was found to have a strong network of friends, paid professionals and caregivers in the area who are able and willing to provide the AIP help with her property and finances. Additionally, the court evaluator denotes that in 2015, the AIP executed a power of attorney, health care proxy and other advance directives which render the appointment of guardian of the person or property unnecessary. The evaluator concludes that the AIP's election of her daughter, Nancy, to fill the aforementioned roles appears to be based upon their relationship over many years.

Under Mental Hygiene Law Article 81, a court may appoint a guardian for a person or a person's property upon determining, by clear and convincing evidence, that the requirements of article 81 have been met (see Mental Hygiene Law §§81.02[a][2], 81.12[a]; Loftman v. Mae R., 123 AD3d 1034 [2nd Dept 2014]). Before a court may appoint a guardian, it must determine: (1) that a guardian is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person; and, (2) that the person agrees to the appointment, or that the person is incapacitated within the meaning of the statute (Mental Hygiene Law §81.02[a][1],[2]; Loftman v. Mae R., 123 AD3d 1034 [2nd Dept 2014]). The statute specifies the relevant considerations and issues in the determination of the need for a guardian, and expressly requires that the court consider the report of the court evaluator (see Mental Hygiene Law § 81.02[a]) and the sufficiency and reliability of available resources that may satisfy the needs of the proposed ward without requiring the appointment of a guardian (see Loftman v. Mae R., 123 AD3d 1034 [2nd Dept 2014]).

Here, the petitioner fails to present clear and convincing [*2]evidence of the need for a guardianship of either the person or property of the AIP. The petitioner fails to submit any medical evidence to support the alleged claim of dementia, which would illustrate that she is likely to suffer harm because of her inability to adequately understand and appreciate the nature of her actions (see MHL §81.08[4] and [5]; Matter of Owen P., 162 Misc 2d 733 [Sup Ct, Onondaga County 1994]). Furthermore, the cross-motion establishes that there are currently advance directives in place which provide for the management of the AIP's personal and property needs consistent with the statutory goal of requiring dispositions which are the least restrictive form of intervention (see In re Samuel S, 96 AD3d 954 [2nd Dept 2012] leave to appeal dismissed by 19 NY3d 1065).

Based upon the foregoing, the petition is hereby dismissed. The petitioner is directed to return all property belonging to the AIP within ten (10) days hereof. Lastly, the AIP seeks an award of attorney's fees in relation to her costs in defending this proceeding, presumably pursuant to MHL 81.10(f). The purpose of the statute permitting shifting of fees to the petitioner is to caution those who would bring a frivolous petition, or one motivated by avarice, that they might very well have to bear the financial burden of the proceeding (see In re Kurt T., 64 AD3d 819 [3rd Dept 2009]). Hence, the relevant factors in determining the proper apportionment of fees when a petition is dismissed include whether there is evidence that the petitioner was motivated by avarice or possible financial gain, whether the petitioner has acted in good faith in commencing the petition, the sufficiency of the petition on its face, the relative assets or indigence of the petitioner and the AIP, and any special circumstances that may exist, such as benefits to the AIP that may have resulted from the filing of the petition (id.). In this Court's view, the instant petition was not wholly frivolous. However, there is evidence that the petitioner's action were motivated by avarice, possible financial gain and distrust of her sister's ability to manage their mother's finances. In light of this finding, and in the absence of any indication that the petitioner cannot afford to pay her costs of ligation, the petitioner is directed to absorb the full amount of her own legal fees. Further, given due consideration to the insightful services provided by the court evaluator, the former attorney for the AIP, Kyle Steller, Esq. and balancing the equities, the Court finds that the court evaluator's fees and that of Attorney Steller must be borne by the petitioner in its entirety (see In re Brice, 42 Misc 3d 1231[A] [Sup Ct, Kings County 2014]). In regard to the AIP's counsel fees, MHL §81.10 does not provide for the reimbursement of a privately retained attorney, rather it provides for "compensation for mental hygiene legal service or any attorney appointed pursuant to this [*3]section..." (MHL §81.10[f]). Accordingly, the AIP is directed to bear the costs of her privately retained counsel.

The petition is dismissed and the cross-motion is granted as delineated above. The Court would note Kyle Steller, Esq. has submitted an affirmation of legal services. Counsel is directed to submit a proposed order concerning these fees in accord with the decision and order within ten (10) days hereof.



This constitutes the decision and order of this Court.

Dated:December 6, 2016

Poughkeepsie, New York

ENTER

________________________________

HON. JAMES D. PAGONES, A.J.S.C.