Opinion
2015-092
03-01-2016
In the MATTER OF the Application of S.P., for the Appointment of a Guardian FOR G.P., an Alleged Incapacitated Person.
Heather Youngman, Esq. and Thomas F. Turturo, Esq., of counsel, Tully Rinckey, PLLC for Petitioner Elizabeth Joggerst, Esq. of counsel, Levene Gouldin & Thompson, LLP, retained by AIP Robert A. Gouldin, Esq., Court Evaluator Mental Hygiene Legal Service Third Dept., Hollie S. Levine, Esq., appointed counsel to spouse of AIP
Heather Youngman, Esq. and Thomas F. Turturo, Esq., of counsel, Tully Rinckey, PLLC for Petitioner
Elizabeth Joggerst, Esq. of counsel, Levene Gouldin & Thompson, LLP, retained by AIP
Robert A. Gouldin, Esq., Court Evaluator
Mental Hygiene Legal Service Third Dept., Hollie S. Levine, Esq., appointed counsel to spouse of AIP
David H. Guy, J.
S. P. petitioned for the appointment of an Article 81 guardian for his mother, G. P., by petition filed February 18, 2015. He also petitioned for a guardian for his father, R. P. By Orders to Show Cause executed February 20, 2015, the Court appointed Robert A. Gouldin as Court Evaluator and Mental Hygiene Legal Service Third Department, as counsel for R. P.
G. P. (Mrs. P.) appeared by retained counsel, Levene Gouldin & Thompson, LLP, Elizabeth K. Joggerst, Esq., of counsel.
Following two attorney conferences, the matter was before the Court for a hearing on July 13, 2015. The Court Evaluator filed a report recommending against the appointment of a guardian, as unnecessary in light of resources in place for Mrs. P., including a power of attorney and health care proxy, as well as Mrs. P's current ability to handle her own affairs. Mrs. P. moved for summary judgment dismissing the petition. The court reserved decision and petitioner proceeded with his case, focusing, at the court's direction, on the alleged ineffectiveness of her power of attorney as a resource for Mrs. P. The court issued a decision from the bench granting Mrs. P.'s motion and dismissing the proceeding following petitioner's presentation of his case on that issue. That bench decision was confirmed by order of the court dated July 30, 2015.
Petitioner now moves for payment of his attorney's fees from the assets of Mrs. P. His motion is supported by an attorney affirmation. Mrs. P. submitted an affidavit and memorandum of law in opposition to this motion. The motion is denied for the reasons set forth in this decision.
The statute provides for the determination by the court of the fair and reasonable fee of counsel for the 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 (2nd Dept., 2005). The retainer agreement between petitioner and his counsel may control the parties to that agreement, but does not bind the court in its determination of the fair and reasonable fee to be paid from the assets of the incapacitated person. Williams v. Jackson , supra ; NYSBA Commission on Professional Ethics Opinion 689 (1997).
Factors for the court to consider in determining the proper apportionment of fees where a petition is dismissed include whether the petition appears to be motivated by avarice or financial gain, whether the petitioner has acted in good faith in commencing the petition, any benefits that accrue to the AIP resulting from the filing, and the relative assets of the petitioner and the AIP. In re Kurt T. , 64 AD3d 819, 823 (3rd Dept., 2009).
It is at best unclear whether petitioner's motivation in bringing this Article 81 proceeding was financial. Certainly, it is appropriate for petitioner to be concerned about his mother's financial welfare. His actions, confirmed by his own testimony and his mother's affirmation, indicate it was more financial control of his mother's affairs, particularly her real estate, that motivated him. When petitioner became aware that his mother needed assistance, he failed to simply step up and address her problem directly.
Petitioner was aware his mother had a power of attorney. Instead of seeking to facilitate its use, by communication with his sister, the agent, or his mother's counsel, he commenced this proceeding. The issues that were addressed by this proceeding could and should have been addressed without it. Any benefit to Mrs. P. from court intervention is not substantial. Her own view is that the impact was adverse.
Even if petitioner did bring this petition in good faith, it takes more than good faith to warrant the court exercising its discretion to have Mrs. P. pay petitioner's legal fee, where the matter was dismissed as meritless. In re Chachkers , 159 Misc 2d 912, supra at 916. Compare In re Bloom , 1 Misc 3d 910 (A), where the petition was discontinued on the consent of all parties, with the AIP accepting services which were not in place for her before the petition was filed. Mrs. P.'s resources were already, and remain, in place for her benefit.
In Matter of AT , 16 Misc 3d 974, cited by petitioner in support of his application, the petition was deemed meritorious and in fact guardians of the person and property of the AIP were appointed. That is not the case here.
There is no indication that petitioner is unable to afford to pay his counsel. Some of the time submitted by petitioner's counsel relates to the companion guardianship application for R. P., so cannot be awarded by the Court in this proceeding in any event. Mrs. P. has also already born the expense of her own counsel, as well as the cost of Court Evaluator in this proceeding, so the court his implicitly exercised its discretion to allow Mrs. P. to absorb some of the expenses of this proceeding. In re Kurt T., supra at 823.
The court declines to exercise its discretion. Petitioner's motion for an order directing his legal fees in this matter be paid by Mrs. P. is denied, in its entirety.
This Decision constitutes the Order of the Court.