Opinion
CA2019000041
05-22-2019
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.
Janet M. Richmond, Esq., counsel to Petitioner Jeffrey S. Nowak, Esq., counsel to Cross-Petitioner Zachary D. Morahan, Esq., of Coughlin & Gerhart, LLP, Court Evaluator William M. Thomas. Esq., of Aswad & Ingraham, appointed counsel to AIP
Janet M. Richmond, Esq., counsel to Petitioner
Jeffrey S. Nowak, Esq., counsel to Cross-Petitioner
Zachary D. Morahan, Esq., of Coughlin & Gerhart, LLP, Court Evaluator
William M. Thomas. Esq., of Aswad & Ingraham, appointed counsel to AIP
David H. Guy, J.
The petitioner in this contested Article 81 proceeding is C. O., one of five children of the alleged incapacitated person (AIP), G. P. The petitioner sought the appointment of a guardian of the person and property of Mrs. P. After initially opposing his mother's need for a guardian, Mrs. P.'s son, S. P., filed a cross-petition seeking to be appointed as guardian of the person and property of Mrs. P. Zachary D. Morahan, Esq. was appointed as Court Evaluator and William M. Thomas, Esq. was appointed as counsel to Mrs. P.
The matter was before the Court for a hearing on December 21, 2018 and March 8, 2019. At the conclusion of the hearing, the Court determined that Mrs. P. needs a guardian of both her person and property; appointed Michael F. Getman, Esq. as a Part 36 guardian of her property; and appointed Mrs. P.'s sister, S. H., as guardian of her person. The Court's decision on the record was reduced to a set of Findings and an Order Appointing Guardians, dated March 25, 2019 and March 27, 2019, respectively.
The Court set the fee payable to the Court Evaluator from Mrs. P.'s resources by Order dated January 14, 2019. The fee for Mr. Thomas, as counsel to Mrs. P. in these proceedings, was also set by the Court as part of the Order dated March 27, 2019.
Now before the Court are applications from both the petitioner and cross-petitioner seeking determination of the fees payable to their respective counsel from the resources of Mrs. P. The Court has reviewed the affirmation of Janet M. Richmond, Esq., counsel for the petitioner, dated February 5, 2019, as well as Ms. Richmond's supplemental affirmation dated March 20, 2019. The Court has also reviewed the affidavit of Jeffrey S. Nowak, Esq., counsel for the cross-petitioner, dated March 18, 2019 and Mr. Nowak's supplemental affirmation dated March 29, 2019. Mr. Thomas, counsel for Mrs. P., submitted an e-mail to the Court and both counsel on March 18, 2019, expressing a view on behalf of Mrs. P. with regard to the requested fee, which the Court has considered.
The same parties now requesting fees were all before this Court in 2015 on an earlier Article 81 petition filed in Chenango County, New York, by S. P., seeking the appointment of a guardian for Mrs. P. That petition was dismissed, and the Court rendered a decision dated March 1, 2016, regarding then requested legal fees. The analysis in the 2016 fee decision informs the decision in this case.
The statute provides for the determination by the court of the fair and reasonable fee of counsel for a petitioner in a successful proceeding. The court also has discretionary authority to award fees where a petition is not granted. MHL § 81.16(f) ; Williams v. Jackson , 10 Misc 3d 58 (2d Dept 2005). Retainer agreements between petitioners and their respective counsel control the parties to those agreements, but do not bind the court in its determination of the fair and reasonable fees to be paid from the assets of an incapacitated person. Id ; NYSBA Commission on Professional Ethics Opinion 689 (1997). The Court retains the responsibility to set the reasonable and appropriate portion of legal fees payable from Mrs. P.'s resources. Matter of Ruth S. (Sharon S.), 125 AD3d 978, 980 (2d Dept 2015).
This was a clearly contentious matter. In some ways, it was a continuation of the discord that exists between the cross-petitioner and his siblings. C. O. was the named petitioner, but Ms. Richmond's affirmations reflect that the remaining siblings - other than cross-petitioner and T. P., who did not appear at all in this proceeding - explicitly or implicitly supported petitioner's application and her position.
In 2015, Mrs. P. and all of her children, other than cross-petitioner, were in accord that a guardian was not needed. Mrs. P. demonstrated more than adequate capability to express her desires and manage her affairs and executed a Power of Attorney and Health Care Proxy to address her future needs. The Court dismissed the 2015 proceeding and declined to award any of cross-petitioner's legal fees from Mrs. P.'s resources.
In the current proceeding, Mrs. P. exhibited clear impairments that impact her ability to adequately and effectively address both her personal and property needs. It was established that Mrs. P. has turbulent and variable relationships with more than one of her children. In recent years, she has moved among the homes of her children, by her own choice, but sometimes in anger. There are credible allegations she was subject to some financial abuse by at least one of her children. She made changes to her legal resources at a time when her capacity to do so was clearly questionable, with the result of confusion and additional discord among her children.
While Mrs. P. was experiencing greater limitations, her children were not able to work together in a cooperative manner to assist Mrs. P. and reduce her personal and financial risks. It was for this reason the Court appointed an independent property guardian and her sister as personal guardian, instead of one of her children. The actions of Mrs. P. herself adversely impacted her situation, but as her counsel in this proceeding notes, and the Court agrees, some legal fees could have been avoided had the children cooperated with each other, engaged in effective communication, and been attentive to their duties as children and agents for Mrs. P., placing her interests above their own.
The Court has carefully reviewed the affirmations of counsel in light of the above factors. Mrs. P.'s children are reminded that she has the responsibility to pay the fees of the Court Evaluator and her counsel, totaling nearly $19,000, and she will continue to have the expense of a Part 36 property guardian on an ongoing basis. In making its determinations the Court is also mindful of Mrs. P.'s lack of liquid resources; lack of funds to pay real estate taxes was cited as a compelling factor motivating the petition.
The Court finds that the sum of $12,000 will be allowed from Mrs. P.'s resources toward the fees of petitioner's counsel, or to reimburse petitioner to the extent she has paid those fees personally. It is the Court's expectation that the balance of petitioner's legal expenses not be born solely by the petitioner, but ratably by her and her three siblings other than cross-petitioner.
The Court finds that the sum of $2,500 will be allowed from Mrs. P.'s resources toward the fees of cross-petitioner's counsel, or to reimburse cross-petitioner to the extent he has advanced those expenses. The Court is not allowing any of the prospective fees requested by cross-petitioner in the supplemental affirmation of Mr. Nowak dated March 29, 2019. The Court rejects the request to effectively have Mrs. P. fund a retainer from which cross-petitioner can continue to litigate this Article 81 proceeding. In addition, with independent and professional guardians in place, the Court sees no reason the cross-petitioner should need to communicate through counsel regarding his mother's situation.
The Guardian of the Property of Mrs. P. is authorized and directed to pay the fees awarded in this decision, and the fees of the Court Evaluator and Counsel for Mrs. P., if and as the guardianship estate has the resources in place to pay them without putting Mrs. P. or her property at financial risk. The payments shall be made in the following order: ZACHARY D. MORAHAN, ESQ.; WILLIAM M. THOMAS, ESQ.; JANET M. RICHMOND, ESQ.; and JEFFREY S. NOWAK, ESQ.
The Decision constitutes the Order of the Court.