Opinion
100331/2005.
Decided August 3, 2006.
On September 1, 2005, Ione Williams, the alleged incapacitated person in this guardianship proceeding, was taken to the emergency room at Coney Island Hospital by her niece, Sylvia Williams and her grandnephew, the petitioner, Remerro Williams. On September 2, 2005, Ms. Williams was seen by Dr. E. Nudelman, an attending psychiatrist at Coney Island Hospital. Prior to her admission, Ms. Williams lived alone in an ocean view condominium that she owned on Surf Avenue in Brooklyn.
When Remerro Williams admitted Ms. Williams to Coney Island Hospital, he reported that his grandaunt had a history of dementia and had been hallucinating. He reported that his grandaunt had demonstrated altered mental status for three days prior to her admission necessitating a call to 911. Upon observation of then 89 year old Ione Williams, noting her frailty and difficulty with speech; citing the information provided by the family, quoting her claim that "someone kidnapped me" and noting Ms. Williams' confusion, Dr. Nudelman found that she was unable to care for herself independently and needed nursing home placement. Ione Williams was then transferred from Coney Island Hospital to Oceanview Nursing and Rehabilitation Center, a nursing home in Far Rockaway, New York.
While at this nursing home, Ione Williams met Jennifer Robinson, the Director of Social Work for the facility. Ms. Robinson arranged for a psychiatric evaluation of Ione Williams by Dr. Mitchell Kaplan, a consulting psychiatrist. Among other things, Dr. Kaplan found that Ione Williams was not demented and had the capacity to make decisions for herself. Preparations were initiated for her discharge from this nursing home to her home on Surf Avenue in Brooklyn.
Remerro Willams, previously domiciled in California, had moved into in Ms. Williams's condominium after admitting her into the hospital and appeared to intend to remain there indefinitely. After speaking to Ms. Williams about this possibility, Ms. Robinson concluded that Ms. Williams' condominium would not be a safe place for her discharge from the nursing home since she was afraid of her grandnephew and unable to dislodge him.
In her direct testimony at the hearing in this matter, Ms. Robinson testified that the nursing home had been contacted by Sylvia Williams, Ione's niece and Remerro's mother who instructed that Ione Williams should not be allowed to make or receive any phone calls nor be allowed visitors because dangerous people were "trying to get to her aunt's money". Sylvia Williams further instructed the nursing home to deal only with Remerro Williams as the designated "head of the household". Accordingly, Ms. Robinson called Remerro Williams to obtain Ione Williams' keys, identification, insurance information, pocketbook, and mail. After her requests for these items were ignored, Ms. Robinson attempted to arrange with the post office to deliver Ione Williams' mail directly to her at the nursing home. This effort, however, was thwarted by Remerro Williams.
Remerro Williams exhibited similarly unhelpful behavior during his visits to the nursing home. Although requested to do so, Remerro Williams did not bring Ms.William's mail nor any of her other personal property. Ms. Williams became angry and upset during his visits, particularly when she demanded to know why she had been placed in this nursing home against her will and why he was treating her in this manner. Remerro Williams would not answer her and deflected her concerns with innocuous pleasantries.
Remerro Williams had obtained a power of attorney from Ione Williams on April 23, 2004, which was prepared by his original attorney in this guardianship petition, Frederick Margolin. In October of 2005, while in the nursing home and in an effort to redress her concerns, Ione Williams retained an attorney, May C. Davy, to revoke her grandnephew's power of attorney over her. In response, Remerro Williams brought this guardianship proceeding, alleging that his grandaunt was mentally incapacitated, needed a guardian of her person and property and that she lacked the capacity to revoke the power of attorney and healthcare proxy that she had executed in his favor.
Ione Williams opposed the petition, by attorney Yasmin Duncan. In her affirmation she relates how Remerro and Sylvia Williams were attempting to make it look like she was insane and violent and how they moved things around in her apartment to disorient her and how they took her money without permission. With supporting documents from Jennifer Robinson and Anthony Maitland, who also testified on her behalf, Ms. Williams asserts that she does not need the services of a guardian and demands dismissal of Remerro Williams' petition.
After a preliminary hearing, the court found exigent circumstances and by order dated January 25, 2006 appointed the Guardianship Project of the Vera Institute of Justice as Ms. Williams' temporary special guardian charged with the task of moving her back into her apartment with the services she needed. It was clear at that time that the Vera Institute was the ideal choice to move swiftly, address the circumstances of her relatives having moved into her apartment, put Ms. Williams back in her home and put in place the services that she needed to remain there comfortably. While Jennifer Robinson, the nominee of Ione Williams as her potential guardian, was instrumental in pushing for Ms. Williams' return to her home and extremely helpful in that regard, the resources of the Vera Institute having a staff of attorneys, social workers, economic advisers and access to home care personnel far exceeded that of any individual guardian that could have been selected During this process, Remerro Williams' reluctance to provide the apartment keys and personal items created significant difficulties.
Vera was ultimately able to gain access to the apartment by court order and found that it had been stripped bare of all of Ione Williams' furnishings, personalty and collectibles, including her motorized wheelchair. Remerro Williams refused to disclose the whereabouts of these items and claimed that they were infested by vermin and that he personally removed them or had directed others to do so. When confronted at the guardianship hearing with photographs depicting the presence of another person in the apartment at the time that the items were removed, Remerro Williams was unclear and evasive as to who might have assisted him in the removal of the property.
Following a court order, Vera promptly refurnished the apartment with items that Ms. Williams was allowed to choose from a catalog. In February of 2006, Ms. Williams moved back into her home under the care of a home health aide.
On March 29, 2006, a hearing to determine the issues raised in the petition and cross-petition commenced. At the hearing, Remerro Williams, Sylvia Williams, Ione Williams, Anthony Maitland, a member of the same church congregation as Ms. Williams, Jennifer Robinson, Director of Social Work at Oceanview Nursing Rehabilitation Center, and May C. Davy, Esq. testified.
Both Remerro and Sylvia Williams testified to having had close, affectionate relationships with Ione Williams. They reported to have shared holidays as a family and though separated by thousands of miles remained in close contact with Ms. Williams. Sylvia Williams testified to speaking with her aunt on the telephone every day and to visiting her occasionally. They informed the court that Ione Williams who was like a mother and sister to them had helped them financially with many gifts throughout their lives. They discussed a mutual reliance which consisted of her financial support and implicit and explicit support for one another. This was evidenced by testimony that Ione Williams' was currently assisting Remerro Williams by paying his college tuition and living expenses. Sylvia Williams claimed that she had even called the supermarket to have food delivered to her aunt in Brooklyn. Remerro and Sylvia Williams emphasized the importance of their blood relationship and family bond with Ione Williams throughout their testimony.
In addition to testimony about the quality of their familial relations, Remerro Williams and Sylvia Williams discussed their concern with Ms. Williams' mental state, making references to incidents which prompted their currently disputed actions. Both claimed that they had only admitted Ione Williams to the hospital because she sounded completely irrational (i.e. seeing people floating out through the walls of her apartment and television screen.) In addition, they expressed concern about the quality and results of some of Ms. Williams business relationships. They alleged that there were two incidents when she had been taken advantage of by unscrupulous attorneys and financial advisers. The chronology of these transactions, and how Ms. Williams came to be involved with these persons, however, is unclear in the record. Despite the lack of specific detail, Remerro Williams submitted into evidence letters that he had written to the Grievance Committee of the New York State Bar and the Legal Department of the Oppenheimer Fund between April and November of 2004 in complaint of these dealings. He further testified that it was as a result of these duplicitous transactions that his grandaunt authorized and executed the power of attorney in his favor prepared by Frederick Margolin and dated April 23, 2004. Remerro testified that these documents gave him control over his grandaunt's finances.
Before petitioner became aware of the fact that predatory lawyers and financiers were acquiring funds from his grandaunt, he had taken her to see Frederick Margolin in 1999 to prepare a will. As a result of this document, dated April 23, 1999, Romerro Williams, the executor of the will stands to receive Ms. Williams' condominium apartment, the single largest asset of Ione Williams' estate. In addition, he and Sylvia Williams would each receive 25% of the residuary estate, another 25%, held in trust by Remerro Williams goes to Ms. Williams disabled adult son, John Williams Jr. The final 25% of her estate goes to the Jehovah's Witnesses. Remerro Williams is named as trustee for John Williams Jr. and executor of this will.
As Ms. Williams' bank accounts were mostly held in trust for Remerro Williams, it is not clear what assets, if any, would have passed through this will through its residuary clause. Mr. Williams' testimony concerning attorney Frederick Margolin's drafting of his aunt's will was vague and confusing. Among other things, he could not remember whether he had read this will before his aunt signed it, even though he supposedly was acting to protect her from the actions of prior unscrupulous attorneys.
Ione Williams, now 90 years old, was present for most of the multiple day hearing. She listened attentively to much of the proceedings and cogently testified despite the appearance of fatigue and occasional drowsiness. Ione Williams, however, was clear that she did not wish to have her grandnephew Romerro Williams be her guardian. Indeed, she informed the court that she no longer wished to have any contact with him whatsoever. The court had previously issued temporary orders of protection for Ione Williams barring Remerro Williams and his mother Sylvia Williams from contacting her. Remerro and Sylvia Williams consented to these orders and to their extensions following the hearing although they did not consent to a permanent order of protection.
Petitioner has the burden of proving by clear and convincing evidence that the subject of a guardianship proceeding lacks the capacity to perform the functions of daily living and manage finances. Mental Hygiene Law Section 81.11(a) requires a hearing to determine whether the appointment of a guardian is necessary. [ Matter of Flight, 296 AD2d 845 (4th Dept., 2002)] Pursuant to Mental Hygiene Law § 81.15 the court must delineate the bases for the appointment of a guardian and the specific powers of the guardian which form the least restrictive form of intervention.
The Vera Institute had obtained an evaluation of Ione Williams from James Lynch, M.D., in conjunction with their effort to move her back into her apartment. This report was introduced into evidence at the hearing by the petitioner. Dr. Lynch found Ione Williams to be alert and oriented and showed no signs of psychiatric illness or dementia. However, he recommended the appointment of a guardian to maintain the level of services that she needs and protect her from further abuse and predation.
Ione Williams is a 90 year old widow who has a history of chronic pulmonary disease, hyperthyroidism, has difficulty seeing and making herself understood and is unable to walk more than short distances, even with the aid of a walker. Prior to her involuntary admission to the nursing home, Ione Williams had pieced together a patchwork of assistance from various sources. In addition to Anthony Maitland, a kind man from her church who ran occasional errands, her niece Sylvia helped her by placing food orders and her building superintendent also came by regularly to help. During the course of the hearing it became clear that Ms. Williams had set up a functioning household for herself and had a network of people through her church and family which allowed her to live in her apartment. Yet, the network that Ms. Williams set up was informal and the persons who lived nearby and helped her on a day-to-day basis lacked the legal standing and the close personal bonds to protect her from those who could take advantage of her. While Ione Williams was able to survive in this way, there is no question that she will be better served with round-the-clock home care and the general supervision of a guardian of her person and property. Most importantly, it appears that Ione Williams realizes this and consents to the continuation of the home-care services that the Vera Institute has arranged.
Dr. Lynch's findings concur with the observations of the court during the hearing. While Ms. Williams is not suffering from dementia, her physical limitations render her totally unable to handle her activities of daily living and financial needs. At nearly ninety years of age, Ms. Williams lacks the strength, vigor, and physical capacity to handle these activities, maintain her assets, her apartment and herself. At minimum, Ms. Williams needs assistance traveling to and from doctors, ordering groceries and personal items and conducting her financial and banking transactions.
Although her judgment has been questionable in some of her past dealings and her recent history is rife with incidents where her good and trusting nature had been abused, the court is not making a finding of mental incapacity but rather that due to the ravages of age and physical incapacity she must rely upon the good will and aid of others to perform the functions of everyday life and thus has become extremely vulnerable to abuse and predatory behavior.
Thus far, living in this unprotected environment has enabled opportunistic persons to access her financial resources and obtain thousands of dollars; it has allowed her relatives to leave her in a nursing home against her will. Her physical and financial freedom have been jeopardized. Ms. Williams is unquestionably at continued risk of harm without having a guardian of her person and property in place. These circumstances provide clear and convincing evidence that appointment of a guardian is needed to protect Ms. Williams as contemplated by the legislature in enacting Article 81 of the Mental Hygiene Law.
In selecting a guardian, preference should be given to relatives. A stranger, however, may be appointed if the court determines that a relative is unsuitable. Matter of Wynn, 11 AD3d 1014, (2nd Dept., 2004) citing Matter of Gustafson, 308 AD2d 305 (2003); Matter of Joseph V., 307 AD2d 469 (2003); Matter of Chase, 264 AD2d 330 (1999).
Although Remerro Williams had been freely given power of attorney, several factors render his application for guardianship of his grandaunt unfeasible. Primarily, his grandaunt has clearly and unequivocally stated that she believes her grandnephew was stealing from her, plotting to dispossess her of her home and assets and she wants nothing to do with him any more. While this in itself is sufficient reason to look elsewhere for a guardian, in addition, other apparent conflicts arise due to his vested interest in Ms. Williams' testamentary estate. Further, upon examination by the court, he was unclear as to his college attendance, professional background, current occupation and sources of income. This uncertainty reflects poorly on his qualifications to be a guardian. Additionally, his life-long reliance on his grandaunt for his own financial needs and his belief, all evidence to the contrary, that his grandaunt wished to continue to support him, render it unlikely that he would be able to act on her behalf in a disinterested fashion.
This last point is evidenced by Remerro's actions while in control of her assets. Even after Ione Williams had revoked Remerro Williams' power of attorney, he continued to write more than $18,000.00 in checks to himself from Ione Williams' accounts. Mr. Williams justified this clear violation of his authority by claiming that he did not believe his grandaunt had the capacity to revoke the power of attorney. Additionally, during these proceedings, when Mr. Margolin, at the court's direction, refunded the $6,200.00 retainer for this guardianship petition which money had come from Ms. Williams' accounts, Remerro Williams deposited the refund into his own account instead of returning the money to his grandaunt's account. By his own testimony, during the time period that he had a valid power of attorney, he acknowledged the disappearance of approximately $200,000.00 from Ione Williams' accounts. This $200,000.00 has not yet been found and remains unaccounted for. This court had instructed the temporary guardian to notify the Kings County District Attorney's Office concerning this issue and a representative of the district attorney's office was present during at least one court proceeding in this matter.
While Ione Williams' relatives stated in their petition that they would have returned her to her home if it had been appropriate, their actions belied this alleged sentiment. They removed her personalty, refused to return her keys, diverted her mail, and barred her friends from church from contacting her. In the meantime, they imprisoned her in a nursing home while they lived in her condominium and spent her money, under the guise of helping her without her permission, based upon a power of attorney that she had validly revoked.
Finally, most curious were Remerro Williams' attempts to discredit his grandaunt's testimony concerning her son John Williams Jr. Basically, Remerro maintained that John Jr. was left at his grandaunt's boarding house as an infant by a guest. This testimony was, of course, based on rank hearsay if based upon any foundation at all as Remerro would himself have been a toddler or small child when this alleged abandonment occurred. What is more likely is that Remerro and Sylvia are trying desperately to disinherit this defenseless, developmentally disabled adult.
In Matter of Nora McL.C, Mary B., et al, 308 AD2d 445 (2nd Dept., 2003), a case that is almost directly on point, the alleged incapacitated person's niece, Nora's attorney-in-fact, had improperly dissipated certain of Nora's income and/or accounts, transferring stocks and funds of the alleged incapacitated person to herself. The court found that these acts evinced impropriety and self dealing giving rise to circumstances making appointment of an independent guardian appropriate. In Nora, supra, the court also removed the niece as health care proxy although only financial impropriety was cited.
Apart from Remerro Williams' application to become her guardian, Ione Williams nominated Jennifer Robinson and May C. Davy to act as her co-guardians if the court determines that a guardian must be appointed. Ms. Williams is capable of making many of her own decisions and her choices as to whom she wishes to have represent her or make decisions for her need to be respected. However, Ms. Williams nomination of Jennifer Robinson and May Davy cannot be honored pursuant to Mental Hygiene Law Section 81.19(e): This section reads in pertinent part, as follows:
"Unless the court finds that no other person or corporation is available or willing to act as guardian . . . the following persons or corporations may not serve as guardian: 2. one other than a relative, who is a provider, or the employee of a provider, of health care, day care, educational or residential services to the incapacitated person, whether direct or indirect."
Although Ms. Williams is no longer a resident of the nursing facility, the statute, on its face, does not make this distinction and the statutory intent is to prevent any potential conflict of interest.
Unfortunately, Ms. Robinson, Director of Social Work in the nursing home where Ms. Williams resided for several months falls squarely into the category of a person barred by this statute from serving as a guardian. Consequently, it would also be inappropriate to appoint May Davy as a guardian because Ms. Davy was nominated to serve as a co-guardian along with Ms. Robinson and it was not Ms. Williams' intent to appoint Ms. Davy as sole guardian without Ms. Robinson as co-guardian.
Even if Ms. Williams' nomination was not precluded under Section 81.19, the court has found the services of the Vera Institute for Justice to have been eminently satisfactory to date and does not believe that it would serve Ms. Williams' best interests and the statutory requirement for the least restrictive environment to change the guardianship arrangement. Ms. Williams and Ms. Davy would not remove the personnel that the Vera Institute has provided and both women, as busy professionals would not be able to provide the time and resources of the Vera Institute to maintain Ms. Williams' independence and dignity. The Vera Institute has committed to use May Davy to provide financial planning and tax accounting services for Ms. Williams. This would satisfy the intent of Ms. Williams' nomination of May Davy to act as her financial and property guardian. Further, the Vera Institute has committed to consult with Jennifer Robinson in all matters that will effect the care and well being of Ione Williams' person. This arrangement would provide the maximum freedom and independence and security for Ms. Williams, as well as honoring her choices of those who would care for her.
While Ms. Williams has had some objections to the Vera Institute continuing to act as guardian, those problems appear to have centered on Ms. Williams having her funds made more readily available to her and this may have already been remedied. In any event, this difficulty can be surmounted. by clarifying in the final order that Ms. Williams is to have unfettered access to her funds for whatever purchases she wishes.
The petitioner's original attorney has moved for legal fees for the bringing of the petition. While the bringing of the petition was probably in Ms. Williams' best interest, given the inevitability of this action, the petitioner's application to be selected as guardian has been denied pursuant to this decision. Moreover, Mr. Margolin was required to disqualify himself due to a conflict of interest since he previously represented Ms. Williams (at Remerro Williams' behest)when he prepared her will and the power of attorney giving petitioner control of her finances. Additionally, although having established an attorney-client, confidential relationship with Ms. Williams and even having met with her and having been notified that she believed Remerro Williams was stealing from her, he undertook to represent petitioner in a proceeding adverse to Ms. Williams to declare her incompetent and nullify her revocation of the power of attorney that he prepared. As such, the court declines to award fees to a disqualified attorney from the funds of Ms. Williams. See, Lichtenstein v. Stone, 223 AD2d 309 (1st Dept., 1996).
In sum, the evidence is clear and convincing that Ms. Williams is physically incapacitated by virtue of her age, immobility and infirmities and has functional limitations which impair her ability to provide for her own personal needs and property management. This finding is supported by the evaluation of James Lynch, M.D. who unequivocally asserted that Ms. Williams' requires the appointment of a guardian because ". . . she has been at risk, has been incapable of managing the risk, and faced serious consequences as a result . . .". Dr. Lynch expressed the opinion that Ms. Williams would not, without the assistance of a guardian, keep in place the home care and property management that is currently in place through the efforts of the Vera Institute. There is no evidence that these conditions will ameliorate over time hence the need for a guardian is anticipated to be permanent at this juncture.
It is clear to the court that Ms. Williams, a strong willed and fiercely independent woman with sharp intelligence and great charm underestimates the risk of continuing to live as she had prior to the appointment of the temporary guardian. The court finds that the full criteria of Article 81.02 is met in that due to Ms. Williams' physical incapacity she cannot provide for her personal needs and property management and does not adequately appreciate or accept the nature and consequences of such inability, thus requiring appointment of a guardian to prevent harm. See also, Mental Hygiene Law § 81.15(b)(c). In Matter of Mary J., 290 AD2d 847 (3rd Dept., 2002) the ninety-one year old alleged incapacitated person had severe physical disabilities making it impossible for her to independently perform the activities of daily living, complicated by her inability to ambulate, like the subject of the proceedings before this court. The Third Department affirmed the Supreme Court's appointment of a guardian for the incapacitated person, finding the court appointed guardian's choice to have her remain in the nursing home located in the area where she resided all her life with family and support system intact, better served her interests that the alternative she requested of appointing her sister and moving to another state. The court did not find that Mary J. was mentally incompetent, however, like in the present case, that she was physically incapacitated and was unable to fully comprehend the consequences of her disabilities and that she required more help than she was willing to acknowledge.
In light of the foregoing, upon reading and filing the petition of Remerro Williams, sworn to December 12, 2005; the verified answer dated January 18, 2006 and affidavit in opposition dated January 20, 2006; the report of the court evaluator dated December 22, 2005; the motion to modify temporary guardianship and nomination dated March 24, 2006; and the affirmation of legal services of Frederick Margolin dated February 24, 2006; and upon all the papers and proceedings and correspondence had in this matter, the court denies the petition of Remerro Williams to serve as guardian for his grandaunt Ione Williams and appoints the Vera Institute for Justice as guardian of the person and property of Ione Williams with the specific proviso that the Vera Institute consult with Ms. Williams herself and Ms. Robinson and Ms. Davy or whosoever Ms. Williams designates when a determination must be made that effects Ms. Williams care and finances.
Vera Institute is directed to settle an order on notice consistent with this opinion, giving itself the power to marshall Ms. Williams' assets including investigation of missing funds and personalty and applying for any benefits to which she may be entitled but limiting the powers of the guardian to allow Ms. Williams be to select her own physicians and home care personnel, to direct the hiring of persons for ancillary services such as estate planning and will drafting and to provide Ms. Williams with the utmost control of her affairs consistent with protecting her person and her financial security.
The foregoing constitutes the decision and order of the court. Settle final order of guardianship on notice.