Matter of C. O. (G. P.)
Annotate this CaseDecided on September 18, 2020
Supreme Court, Broome County
In the Matter of the Application of C. O., Petitioner, Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Person and Property of G. P., an Alleged Incapacitated Person.
CA2019000041
Michael F. Getman, Esq., appointed Temporary Guardian of the Property, on consent
Deborah Wolf Miller, Esq., counsel to S. P., son of AIP
William M. Thomas. Esq., of Aswad & Ingraham, appointed counsel to AIP
Jo A. Fabrizio, Esq., Court Examiner, Referee of Final Accounting
David H. Guy, J.
A petition pursuant to Mental Hygiene Law Article 81 was filed by C. O. on November 19, 2018, seeking the appointment of a Guardian of the Person and Property of G. P. Following an initial hearing in this proceeding on December 21, 2018, Michael F. Getman, Esq. was appointed as Temporary Guardian of the Property of AIP, with AIP's consent. The Court concluded the hearing on March 8, 2019, at which time the Court found that the appointment of a guardian of the person and property was appropriate based on a finding that AIP lacks capacity. The Court appointed Mr. Getman as the guardian of AIP's property. The Court also appointed S. H., AIP's sister, as her person guardian.
On February 3, 2020, Mr. Getman filed a motion to be relieved as guardian of the property, pursuant to Mental Hygiene Law §81.36. His motion was supported by an affidavit stating he feels he has been unable to appropriately fulfill his duties as guardian due to the family dynamics and his lack of time to adequately address the issues in this case. With his motion, Mr. Getman also submitted a Final Accounting and an Affidavit for Fees, seeking the Court's award of $9,975 for his services as guardian and the services of his assistant.
Based on Mr. Getman's request to be relieved as guardian, the Court appointed Broome County Court Examiner, Jo A. Fabrizio, Esq. as referee to examine Mr. Getman's final accounting. Ms. Fabrizio filed her Referee Report approving Mr. Getman's Final Accounting on March 9, 2020.
On February 18, 2020, S. P. filed a Petition with a proposed Order to Show Cause, seeking, among other things, an order removing Mr. Getman as property guardian; requiring Mr. [*2]Getman to turn over all funds and files; appointing S. P. as Interim Property Guardian; and surcharging Mr. Getman due to alleged acts or omissions during his time as guardian and for sums he allegedly inappropriately paid from AIP's funds.
The Court issued an Order to Show Cause dated February 20, 2020, reappointing William Thomas, Esq. as counsel to represent AIP; terminating Mr. Getman's authority as guardian; appointing S. P. as Interim property guardian of AIP; and setting a hearing for March 18, 2020, to determine the issues raised regarding Mr. Getman's fee request and services as property guardian. The Court treated S. P.'s Petition as a request for his appointment as permanent property guardian of AIP, and the Order to Show Cause also set a hearing date of April 15, 2020 for determination of this issue.
Due to the Covid-19 pandemic, the two hearing dates were indefinitely adjourned. The hearing on Mr. Getman's full discharge and fee application, and S. P.'s request to surcharge Mr. Getman, was rescheduled for hearing via Skype for Business on June 18, 2020. At the hearing, William Thomas, Esq. appeared; AIP appeared; Michael Getman, Esq. appeared; S. P. appeared with his counsel, Deborah Wolf Miller, Esq; and E. G., C. O., B. P. and S. H. appeared. At the conclusion of the hearing, the Court invited the parties to submit written summations. Counsel for S. P. submitted a summation dated June 25, 2020.
At the hearing, Mr. Getman testified and was questioned by Ms. Miller on behalf of S. P. Mr. Getman confirmed he did not wish to amend his fee request submitted with his discharge motion. He acknowledged that during his appointment as temporary and full property guardian, he never obtained AIP's credit card statements to review. He was unaware of the reversal of fraudulent charges on one of AIP's credit cards. Mr. Getman did not contact USAA about her credit card account, but he believes his paralegal may have contacted the company to attempt to negotiate a payoff of the balance on the account.
Mr. Getman did contact USAA, where AIP also had bank accounts, by letter dated April 24, 2019. He was able to close the USAA savings account but could not access the checking account.
During his time as guardian, Mr. Getman did not attempt to access AIP's health savings account to seek reimbursement for paid medical expenses. Instead, Mr. Getman made payments for medical expenses from AIP's general funds in the guardianship account.
Mr. Getman was aware S. P. and S. H. set up a personal aide to keep AIP company. Mr. Getman never paid the aide because he did not personally hire the aide and first wanted to confirm the services being provided. He also believed the aide should be designated as an independent contractor, while S. P. and S. H. wanted to hire her as an employee. Mr. Getman had concerns about the potentially liability created by the aide driving AIP around in AIP's vehicle.
Mr. Getman did not make efforts to contact S. H. to find out if AIP had personal needs. There was no testimony that S. H. contacted Mr. Getman about paying for AIP's person needs, other than the aide.
When questioned about payments he made for older bills to Verizon, for snow ploughing, and estate planning, Mr. Getman testified that he considered such bills a priority, and he made the payments accordingly. According to Mr. Getman, getting AIP's finances in order and paying overdue bills and taxes was his priority during his time as property guardian.
Mr. Getman was not aware of an umbrella liability insurance policy on AIP's properties located in Oxford, New York, but he indicated he would not purposely have let such a policy [*3]lapse. He did not apply for any real property tax exemptions for AIP's properties in 2018 or 2019. Again, there was no testimony that such exemptions were previously in place on AIP's properties, or that Mr. Getman was made aware of any.
Mr. Getman's plan was to sell some or all of the properties to raise cash to pay AIP's liabilities. He obtained third-party sales contracts on two properties and filed a motion for approval of those sales on September 13, 2019. Mr. Getman chose not to accept an offer from
S. H. for one of the properties, apparently at the same price offered by the third party. Following a hearing at which AIP, S. P. and S. H. expressed vehement objection to the requested relief, the Court declined to authorize the sales. Matter of C.O. (G.P.), Sup Ct, Broome County, November 15, 2019, Guy, J., Index No. CA2019000041.
Mr. Getman was concerned about pipes freezing in the properties and hired a company to winterize AIP's Oxford home, paying $1,480 in January 2020. He rejected an offer for a system to be installed in the home to monitor the temperature through the winter.
Mr. Getman agreed to allow a farmer to pay $400 annually to hay one of AIP's properties, the amount the farmer told him he had paid previously. He did not conduct research on the going rate of the use of hayfields in rural counties. Mr. Getman was unaware S. P., since his appointment as Interim Guardian, negotiated for $200 per month for the same field to be hayed.
Mr. Getman was unaware of firearms owned by AIP, last seen in the home of her son, T. P. He could not recall if he knew about a trailer located on the Oxford property, which allegedly also went missing.
S. H. testified that Mr. Getman did not contact her about the aide providing companion services to AIP. S. H. and her son met with Mr. Getman in May or June 2019, and following the meeting, it was S. H.'s understanding that Mr. Getman would pay the companion. She expressed surprise Mr. Getman never paid the aide.
S. H. wanted to buy AIP's properties if they were to be sold. She expressed concern that the two properties were listed with a realtor, thus subjecting any sale of the property to realtor's commission.
S. P. testified that he asked USAA to reverse fraudulent charges on AIP's account, with a $4,551.50 credit being applied as a result. He expressed concern that the outstanding taxes on AIP's properties result in accrual of monthly interest. Mr. Getman did not respond to S. P.'s offer to do maintenance and repairs on her properties. Since his appointment as Interim Property Guardian, S. P. has rented out living spaces in AIP's properties to generate income. The winterization of AIP's properties resulted in the need for repairs at the house, in the amounts of $205.15 and $112.36.
The Court has broad discretion in determining the reasonable amount to award as an attorney's fee in a guardianship proceeding. Mental Hygiene Law §81.10(f); see also, Matter of Theodore T. [Charles T.], 78 AD3d 955, 957 (2d Dept 2010); Matter of Audrey J.S., 34 AD3d 820, 821 (2d Dept 2006); Matter of Catherine K., 22 AD3d 850, 851 (2d Dept 2005). The Court must provide a clear and concise explanation for its award in a written decision with reference to the following factors: (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented, (2) the attorney's experience, ability, and reputation, (3) the amount involved and the benefit flowing to the ward as a result of the attorney's services, (4) the fees awarded in similar cases, (5) the contingency or certainty of compensation, (6) the results obtained, and (7) the responsibility involved. See, e.g., Matter of [*4]Freeman, 34 NY.2d 1 (1974); Matter of Audrey J.S., 34 AD3d 820, 821 (2d Dept 2006).
If the court finds that the guardian has failed to discharge his or her duties satisfactorily in any respect, the court may deny or reduce the compensation which would otherwise be allowed. Mental Hygiene Law § 81.28(b); see Matter of Alice D. (Lupoli), 113 AD3d 609, 613-614 (2d Dept 2014); Matter of Albert K. [D'Angelo], 96 AD3d 750, 753 (2d Dept 2012); Matter of Eggleston [Jennifer D.], 88 AD3d 706 (2d Dept 2011).
S. P., now Interim Property Guardian, responded to Mr. Getman's request for compensation with a petition asking the Court to reduce Mr. Getman's legal fees and surcharge him for his alleged failures as property guardian. Counsel for S. P. questioned Mr. Getman at length about his actions, decisions, and alleged inaction and indecision. She elicited testimony from the personal guardian. A lengthy written summation was submitted. The Court has taken all the allegations and testimony into consideration in the analysis of this fee request. A brief abstract of the Court's response to these arguments follows; to the extent not specifically noted, all arguments, testimony, and documents in evidence have been considered and weighed in this decision.
The Court finds Mr. Getman discharged his duties satisfactorily during his tenure as property guardian of G. P. The benefit of hindsight has shown that perhaps not every decision made by Mr. Getman was the best possible course, but guardians are afforded wide latitude to make decisions on behalf of their wards, and the Court is not going to second-guess those decisions made by Mr. Getman in what has been an exceedingly difficult case plagued by complex finances and interpersonal family dynamics. Mr. Getman started with AIP's finances in a deficit position and testified credibly that he took actions to try to pay her liabilities, specifically trying to sell her properties to generate funds.
Mr. Getman was selected as property guardian (and S. H. as personal guardian) because of the dysfunction and acrimony within AIP's family, both among her children and between AIP and various of her children. Mr. Getman's stated plan was to get AIP's finances in order and pay her debts, starting with the oldest debts. At the time Mr. Getman assumed responsibility as guardian, AIP's largest debt was outstanding real estate taxes. Based on the level of cooperation and information he was getting from the family, and in his discretion, Mr. Getman determined a sale of two of AIP's properties was the most effective way to clear the back real estate taxes. A clear rationale exists for this approach: using two large transactions to clear the debt rather than spending substantial time on multiple smaller transactions with smaller individual impact. While Mr. Getman's plan was not ultimately approved by the Court, that was not due to any finding the plan was ineffective or inappropriate for the purpose intended.
S. P. criticized Mr. Getman's decision not to explore rental of AIP's properties, but this decision is consistent with the choice he made to pursue selling them. His decisions with respect to the real estate and the related expenses were previously ratified by the Court.Matter of C.O. (G.P.), Sup Ct, Broome County, November 15, 2019, Guy, J., Index No. CA2019000041. In that Decision, the Court also found that the payment of legal fees inconsistent with the Court's direction was not sufficiently consequential to warrant reversal, and the Court declines to revisit that issue here.
S. P. also criticized Mr. Getman for failing to discover fraudulent charges on AIP's charge card, but there was no proof Mr. Getman was aware of a dramatic change in her credit card balance. The statement reflecting those charges was the first mailed after Mr. Getman's appointment. S. P.'s efforts to independently have those charges reversed has had a positive [*5]outcome for AIP and her finances, but Mr. Getman is not seeking compensation for this work and is therefore not seeking payment for something he did not do. Similarly, while Mr. Getman did not try to negotiate AIP's charge card balance down, he had no basis to question it and is not seeking payment for such an effort. Mr. Getman clearly had difficulty getting USAA, a Texas bank, to recognize his legal authority to access AIP's checking account, but there was also no proof of problematic transactions in that account while he waited for the bank to recognize his guardianship authority.
Mr. Getman's failure to access AIP's health savings account for reimbursement of her medical and related expenses, while unfortunate, is inconsequential given the size of those reimbursements relative to the real estate tax and charge card balances.
Mr. Getman did not establish effective communication with S. P., but the Court cannot fault the guardian solely for that. Throughout these proceedings, spanning a five-year period during which S. P. has been represented by three different attorneys and has at times appeared pro se, the Court has substantial experience with the challenges of working with S. P. Mr. Getman's decision to terminate that communication was appropriately within his discretion, based on the evidence presented.
There was criticism of Mr. Getman for not addressing AIP's personal needs. He was not the guardian of her person. The Court ratifies Mr. Getman's expressed concerns about AIP's hiring an employee who drives AIP around in AIP's vehicle, with the attendant legal risks associated with both. In hindsight, the Court's decision to utilize two different individuals for the personal and property roles made the coordination of arranging and paying for personal needs more complex, and the Court declines to fault Mr. Getman for that difficulty.
S. P., on his own or as Interim Guardian, has founds credits to reduce AIP's debts and implemented a plan to deal with the real estate taxes and other debts. This has a positive impact on AIP's financial circumstances, but it does not necessarily force the conclusion that Mr. Getman's efforts were wrong or inappropriate. Most of the remaining "expenses" proffered as chargeable to the guardian are speculative or hypothetical, particularly when viewed prospectively as of the time Mr. Getman was acting. The Court has found his actions reasonable and appropriate under the circumstances in which he was serving.
A guardianship is not a cure for all ills that impact an incapacitated person and her family. Matter of S.B. (E.K.), 60 Misc 3d 735, 745 (Sup Ct, Chemung County 2018), rev'd on other grounds, Matter of Elizabeth TT. (Suzanne YY.—Elizabeth ZZ.), 177 AD3d 20 (3d Dept 2019). Even assuming good faith efforts by all involved, the manifestations of AIP's limitations and the long-term interpersonal conflict in this family have combined to prevent the implementation of a broadly effective guardianship plan, to date. Reasonable compensation for Mr. Getman for his services as property guardian, as set by the Court, is appropriate.
Turning to the specific factors to be utilized to set compensation, the Court finds he time spent by Mr. Getman and his staff necessary and appropriate. The circumstances of AIP's debts, assets, and income make formulating a clear financial plan difficult and lend themselves to a property guardian exercising his discretion to explore different approaches. Mr. Getman has substantial experience in all aspects of Article 81 proceedings and has evidenced to the Court the skill required to manage the financial and personal challenges as a property guardian. As stated above, the plan and approach developed by Mr. Getman were reasonable under the circumstances of this case, and he attempted to balance AIP's substantial debt with her expressed desire to preserve her real estate. The plan was ultimately not approved by the Court, but AIP's [*6]situation was not made meaningfully worse during Mr. Getman's tenure.
Mr. Getman's billing rate is more than reasonable, among the lowest of Part 36 guardians whose fees this Court has reviewed and set. Considering all the relevant factors and the circumstances of this case, the Court directs the sum of $9,500.00 to be paid to Mr. Getman for services rendered as property guardian for AIP. This fee is less than the Court has awarded in comparable and even simpler cases across the Sixth Judicial District.
This Decision constitutes the Order of the Court.
As part of his discharge petition, Michael F. Getman, as property guardian of G. P., filed a Final Report. The Court appointed Jo A. Fabrizio, Esq., s Special Referee to examine the final accounting, and the Special Referee reported that she is satisfied that the accounting is accurate and complete. The Court received and accepted the Special Referee's report sworn to on March 6, 2020; and the Special Referee has no objection to the relief requested.
In furtherance of this decision, and on motion of Michael F. Getman, Esq., it is
ORDERED, that the Final Report of the Guardian as rendered and filed is correct and the same is hereby finally judicially settled and allowed; and it is further
ORDERED, that S. P., Interim Property Guardian, is directed to pay the sum of $1,100.00 to Jo A. Fabrizio, Esq. from the resources of AIP, within 30 days of the date of this Order; and it is further
ORDERED, that S. P., Interim Property Guardian, is directed to pay the sum of $9,500.00 to Michael F Getman, Esq. from the resources of AIP. The Court will set the priority of this payment among the other legal fees owing by AIP as part of its pending decision for appointment of a permanent property guardian for AIP; and it is further
ORDERED, that Michael F. Getman, Esq., as Guardian of the Property of G. P., is hereby discharged and released as to all matters embraced by the Final Report of the Guardian.
Date: September 18, 2020
_____________________________
Hon. David H. Guy
Acting Supreme Court Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
