Opinion
Index No. EFCA2021-192
09-22-2021
In the MATTER OF the Application of Dr. REX E. M-B, MD, Petitioner, Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Person and Property of Dr. Maria L. M-B, an Alleged Incapacitated Person.
Jo. A. Fabrizio, Esq., Broome County Court Examiner of Art. 81 Guardianships Ronald Benjamin, Esq., retained counsel to Petitioner Mariette Geldenhuys, Esq., retained counsel to Guardian of the Person
Jo. A. Fabrizio, Esq., Broome County Court Examiner of Art. 81 Guardianships
Ronald Benjamin, Esq., retained counsel to Petitioner
Mariette Geldenhuys, Esq., retained counsel to Guardian of the Person
David H. Guy, J.
PROCEDURAL HISTORY
Dr. Rex E. M-B ("Petitioner") filed a petition requesting the appointment of a Guardian of the Person and Property of his mother, Dr. Maria L. M-B ("AIP"), on January 25, 2021. The wherefore clause in the petition requested the appointment of a Temporary Guardian, but the petition contained no allegation supporting that request, nor did the submitted order to show cause include any temporary authority. Following communication with Petitioner's counsel, the Court issued an order to show cause on February 9, 2021, appointing Philip J. Artz, Esq., an experienced Article 81 practitioner, as counsel to the AIP and set the matter down for a hearing on March 10, 2021. The order to show cause granted limited temporary authority to Petitioner.
At the request of the Petitioner, who had a scheduling conflict, the Court adjourned the hearing to April 9, 2021. An attorney conference was held on the original scheduled hearing date of March 10, to review the parties’ respective initial positions and the scope and content of allowable testimony in an Article 81 proceeding.
The hearing was convened on April 9, 2021, via Microsoft Teams. Petitioner appeared, as did his then-counsel, Theodosis Totolis, Esq.; Mr. Artz, counsel for the AIP, appeared; AIP appeared from her home, accompanied by her friend, Dr. P. G.; and AIP's cousin also appeared.
At the outset of the hearing, the Court met with AIP and her counsel , privately but on the record. Mr. Artz had met with his client multiple times in advance of the hearing and the March 10, 2021 conference, where he communicated her opposition to the petition. The AIP was a charming but evidently frail 97 year-old woman. She acknowledged her need for assistance, both in and maintaining her house and with respect to her financial matters. Her clearly expressed objection to the petition was that she did not want her son to be the one granted legal authority to assist her. She stated she wanted local people, in contrast to the "out of town" caregivers her son had appointed for her in the past, and with whom she declined to cooperate. The AIP acknowledged that she had given her son authority via power of attorney in 2013, but stated that she knew it was revocable, wanted it revoked and had in fact signed a revocation, with the assistance of Mr. Artz, two weeks prior to the hearing date. The AIP acknowledged that she had created a revokable trust, which owned her house and of which the ultimate beneficiary was her son. The AIP noted that she had for many years engaged the services of a cleaning lady, who assisted her daily. She recounted to the Court some of her history as a practicing psychiatrist at Greater Binghamton Health Center. The AIP had existing bank accounts at local institutions, including Visions Federal Credit Union. She expressed that she would be willing to have the trust department at that institution help her with financial matters.
Dr. G. remained with the AIP, at her request and to provide technical assistance.
Implicit in Mr. Artz's assistance to the AIP in the preparation and execution of the Power of Attorney revocation is his professional opinion that she had the capacity to execute that revocation.
The AIP readily accepted the Court's suggestion that a geriatric care manager might be an appropriate person guardian, to assist her with her medical and personal needs. The AIP noted that a nurse lived next door to her and provided some care coordination and transportation. She also identified that she was currently receiving services from the wound care center of a local hospital. The AIP established to the Court that she adequately understood and appreciated the nature of her current and potential future limitations. MHL § 81.11(c) ; Matter of S.B. (E.K.) , 60 Misc 3d 735 (Sup Ct, Chemung County 2018), rev'd on other grounds , 66 Misc 3d 452 (3d Dept 2019).
The Court then conferenced with the Petitioner, his counsel, and counsel for the AIP. His mother's acquiescence to a guardianship, with person and property guardians of her choosing rather than Petitioner, was explained to Petitioner. It was also explained that the Court felt the AIP was able to choose who should serve as her guardians; the AIP had effectively made that choice; and the Court felt compelled to honor her choice, absent Petitioner proving the nominated guardians—a financial institution and a professional geriatric care manager—inappropriate. Mental Hygiene Law § 81.17 ; In re Matter of Cheryl B. K. , 45 Misc. 1227 (A) (Sup Ct, Broome County 2012). Petitioner agreed to allow his mother's choices for guardians to control.
A formal hearing then convened, with testimony from Petitioner which confirmed by clear and convincing evidence that the AIP had limitations which impacted her ability to address her personal and financial matters. The AIP agreed on the record to the appointment of Members Trust Company (the trust department affiliated with Visions Federal Credit Union) as property guardian and a geriatric care manager, to be determined by the Court, as person guardian.
Petitioner's counsel communicated with Members Trust Company, which agreed to serve as property guardian. The Court communicated with Care Manage For All, LLC, ("CMFA") a geriatric care manager based in Ithaca, New York, which agreed to serve as person guardian. CMFA was an off-list Part 36 appointment but serves as person guardian in two other cases pending before this Court. The Findings and Order and Judgment Appointing Guardians (which revoked Petitioner's temporary authority) were entered April 22, 2021 and the guardians undertook their respective responsibilities. The initial report filed by CMFA on June 11, 2021 notes visits with AIP commencing April 21, 2021 and meetings with hospital and other health care providers to address her immediate health care needs. The initial report indicates home health care services had been set up, with round-the-clock care for the AIP's safety. Appointments were made with the AIP's primary care doctor, eye specialists, podiatrist, dentist, and local hospital wound clinic.
The AIP died just two months later at her home on June 30, 2021, while in Hospice care, having just turned 98. The property and person guardians filed separate petitions for their respective discharge as guardians on or about July 28, 2021. The person guardian's final report notes that the AIP had an admission to the hospital for acute care on April 30, 2021 and received a palliative consult during that visit, to discuss comfort care options. The AIP received home care and palliative care treatment until June 18, 2021. On that date she was accepted into the Hospice program, with most of her medications discontinued and replaced by comfort packs with prescribed treatment directed by Hospice. The final report also notes that the AIP's decision to remain in her own home under Hospice care was evidently distressing to her son. The person guardian confirms her actions to respect the AIP's choices, provide her privacy and comfort, and provide encouragement and closure visits to her family, including Petitioner.
Upon receipt of the discharge petitions, the Court appointed Jo A. Fabrizio, Esq., the Court Examiner for Article 81 guardianships in Broome County, as Special Referee to examine the final reports of the person and property guardians. The discharge petitions were set down for return on August 27, 2021, on submission, and required notice duly provided by the respective guardians.
The Petitioner, through his second substituted counsel, Ronald R. Benjamin, Esq., submitted an affirmation in opposition to the person guardian's discharge, only. No objections were received to the discharge petition of the property guardian. Final reports were filed by Ms. Fabrizio, as Special Referee, consenting to the discharge of both the person and property guardians.
Kim K. Evanoski, managing member of CMFA, retained counsel, Mariette Geldenhuys, Esq., and submitted an affidavit in response to the attorney affirmation submitted on behalf of Petitioner and in further support of CMFA's motion for discharge as person guardian. For the reasons set forth in this decision, the objections to the discharge of the person guardian are dismissed and Petitioner's request for additional discovery denied.
ANALYSIS
There is a dearth of statutory or case law regarding in an interested party's ability to object to the discharge of a guardian, and in particular a person guardian. Proper proceedings upon the death of an incapacitated person, including notice to appropriately identified family members, are set forth in the statute. MHL § 81.44(f), referencing MHL § 81.33, which provides for the judicial approval of the guardian's report, by a referee or the court. The Mental Hygiene Law provides for discharge where the incapacitated person has died. A hearing on the discharge is anticipated, subject to the court dispensing with the it, for good cause shown. MHL § 81.36(c). In this case the Court appointed the Broome County Court Examiner to serve as Special Referee to review the discharge petitions and final reports. The Referee did not feel the need to conduct further proceedings and approved the final reports of the guardians as submitted.
The majority of Petitioner's objections to the person guardian's discharge relate to expenses paid on behalf of the AIP. These include alleged double billing for housekeeping services in the AIP's home; repairs made to an electric chair recliner; food purchases; and the purchase of a baby monitor. These are payments for goods purchased and services rendered to or on behalf of the AIP. It is not disputed that these expenditures were submitted to, reviewed, approved, and paid for by the property guardian. They have been approved by the Special Referee. They are also nominal in the scope of the expenditures made from AIP's resources and in proportion to her total resources. The Court finds the person guardian's explanations credible and sufficient and dismisses these objections.
Petitioner also alleges "serious questions with respect to the 24/7 hourly billing" for the care provided to his mother. In response Ms. Evanoski confirms that she, as managing member of CMFA, made the staffing level determinations based on AIP's needs. This expertise of CMFA is a component of what made its appointment as person guardian appropriate for the AIP.
It is notable that round-the-clock care for AIP was initiated by Petitioner before he commenced this Article 81 proceeding. His mother's resistance to it was a stated motivation for Petitioner's commencement of the Article 81. At the hearing, Petitioner reiterated his belief that his mother needed 24/7 care. To her credit, Ms. Evanoski was able to implement this care for the AIP when Petitioner could not successfully do so. He will not be now allowed to question its necessity and submitted nothing other than his own unsupported allegation the staffing level was not appropriate. This objection is dismissed.
Petitioner's final objection to the discharge of the person guardian is at root his disagreement with the decisions his mother made regarding her own care, which were implemented through and by the person guardian. He requests "discovery regarding the last two weeks of AIP's life and the time-line of decisions and who made them. " (emphasis added). He further objects to what he sees as lack of sufficient notice of his mother's decision to enter an "end of life care program."
The allegations in the petition commencing this proceeding include AIP's resistance to and refusal to cooperate with service decisions made by her son. She was, from his perspective, refusing appropriate medical services and daily care services, which he had tried to implement, but she did not accept.
The AIP consistently and cogently expressed to the Court, directly and through her counsel, who met with her multiple times, that she did need some services and assistance but wanted to make those decisions herself. She specifically did not want Petitioner to make those decisions for her and resented his efforts to do so. The AIP's expressed willingness to allow Members Trust and a geriatric care manager to provide the financial and personal assistance she needed was sensible and reasonable. She had the legal right to make her own decisions and to determine who would assist her, to the extent she needed help, as long as she could safely and effectively do so. MHL § 81.01 ; Matter of S.B. (E.K.) , supra ; In re Matter of Cheryl B. K. , supra.
Under the guidance of CMFA, particularly Ms. Evanoski as managing member, the AIP received multiple medical consultations and treatments, including an acute hospital admission, where she was counseled on palliative care. The Court cannot help but note that the AIP was 98 years old at her death, suffering from multiple medical morbidities. Ultimately, she was admitted to Hospice care. Such admission requires a terminal diagnosis, with a limited anticipated life expectancy. It requires evaluations by a physician and other clinicians. Petitioner, as a physician himself, should understand the process for admission into Hospice care.
The petition contained information about AIP's medical conditions, precluded by AIP's medical privilege in Article 81 cases. Matter of Stephanie Z. (S.Z.) , 72 Misc 3d 1213(A) (Sup Ct., Chemung Co 2021) ; Matter of S.B. (E.K.) , 60 Misc 3d 735, 741 (Sup Ct, Chemung County 2018), citing Matter of Rosa B.-S. (William M.B.) , 1 AD3d 355, 356 (2d Dept 2003). Substantial diagnostic information was presented as exhibits to the petition, which the Court did not review, because AIP did not waive her privilege.
While a guardian is not fully exempt from claims from persons interested in the proceeding, there is a measure of immunity. See , e.g., Martin v Ability Beyond Disability , 2014 NY Misc. Lexis 5094 (Sup Ct, Westchester County 2014) (following the IP's death, the guardian remained subject to a claim by the family for loss of sepulcher, but not a claim that he failed to consult the family, or otherwise failed to comply with the visitation or reporting requirements of the Mental Hygiene Law). CMFA is an experienced person guardian and geriatric care manager. The order appointing CMFA directs it to take the AIP's wishes and desires into consideration, to the extent she effectively expresses those. There is no information in the guardian's initial or final report indicating that CMFA did not comply with that standard. To the contrary, the contents of the reports indicate the AIP was actively participating in her personal and medical decision making.
Even if the AIP did not directly make one or more of her personal decisions during the pendency of this guardianship, CMFA as person guardian had the authority to do so. Actions by the person guardian consistent with its authority are entitled to some presumption of validity, absent some contrary showing. See, e.g. , Scott v Thayer , 160 AD3d 1175 (3d Dept 2018).
Petitioner's concern for his mother's well-being and safety is appropriate and legitimate. The Court engaged in extensive discussion with the AIP about his concern and the filing of the petition being reasonable and properly motivated. The AIP was willing, with encouragement from the Court, to have her son fully informed about her situation, to allay his legitimate concerns, so long as she, with assistance from her chosen guardian, was able to make the decisions regarding her own care.
The Court perceives that Petitioner feels aggrieved by his inability to direct his mother's medical and end-of-life care. The resulted obtained in this case, with the appointment of a geriatric care manager to assist the AIP with personal decision making, on her consent, is fundamentally the least restrictive alternative that Article 81 seeks to provide. The AIP was left to control her own decision making, as she wished, to the extent that she was able, under the guidance of a professional geriatric care manager, whose expertise is ideal for such a situation.
As noted to Petitioner at the hearing, even if he had moved forward and established his mother's lack of capacity, with the incident evidence and testimony which would undoubtedly not have enhanced their personal relationship, her choice of a financial institution and a geriatric care manager to assist with her property and personal needs would have had to be respected by the Court, as an appropriate choice made by the AIP. MHL§ 81.19(c).
The Court finds that Petitioner's objections do not raise sufficient factual questions to warrant a hearing on the issue of the person guardian's discharge. Petitioner's disagreement with his mother's decisions and his vague, unsupported allegations that they were somehow not hers are insufficient to warrant the allowance of further discovery on that issue. The remainder of Petitioner's objections to the discharge of the person guardian are dismissed.
The person guardian submitted two affirmations of services to the Court. The first was held in abeyance, because the Court was aware the AIP had died, and a final report would be forthcoming. Both affirmations were carefully reviewed. They include contemporaneous records confirming the person guardian's actions and communications. The fees requested, totaling $12,854.05, are hereby awarded to the person guardian as compensation for services.
The person guardian retained counsel to respond to the objections to discharge filed by Petitioner. The responding affidavit requests that the legal fees associated with the response be allowed by the Court as an expense of the guardianship. The Court finds that the person guardian's retention of counsel to respond to the objections is an appropriate guardianship expense. Matter of Ruth S. (Stein) , 181 AD3d 943 (2d Dept., 2020). Counsel is directed to submit an affirmation of services to the Court. The sum of $5,000 will be directed to be retained by the property guardian to cover this fee once set by the Court.
In furtherance of the foregoing, it is
ORDERED , that the objections filed by Petitioner to the discharge of the Person Guardian are dismissed, the request for further discovery denied, and the petitions of Care Manage for All, LLC and Members Trust Company for discharge are granted; and it is further
ORDERED , that the Final Report of the Property Guardian as rendered and filed is correct and the same is hereby finally judicially settled and allowed. The following is a summary statement of the final account so settled and allowed:
PART I
Total beginning balance, as shown on Schedule A $530,247.25
Total additional assets, as shown on Schedule B $230,475.89
Total income received during accounting period, as shown on Schedule C $12,303.94
TOTAL PART I $773,027.08
PART II
Total losses during accounting period, as shown on Schedule D $0
Total monies paid out during accounting period, as shown on Schedule E $164,980.16
TOTAL PART II $164,980.16
BALANCE ON HAND AT END OF ACCOUNTING PERIOD
(Total Part I minus Total Part II) $608,046.92
BALANCE ON HAND TO BE DISTRIBUTED AS FOLLOWS:
TO: Jo A. Fabrizio, Esq., Court Examiner $1,250.00
TO: Care Manage For All, LLC, Person Guardian Compensation $12,854.05
TO: Members Trust Company, to be held pending the Court setting the fee allowed to Mariette Geldenhuys, Esq., Counsel for the Person Guardian, from the guardianship estate $5,000.00
TO: Estate of Maria M-B (or related entities) $588,942.87
The Court will issue a separate Order setting this fee; any excess of the retained funds will be directed to the Estate of Maria M-B.
and it is further
ORDERED , that Care Manage For All, LLC, is discharged as to all matters embraced by the final report of the Person Guardian; and it is further
ORDERED , that upon making the above payments to Jo A. Fabrizio, Esq., Care Manage For All, LLC, Members Trust Company and the Estate of Maria M-B (or related entities), Members Trust Company will be discharged as to all matters embraced by the final report and account of the Property Guardian.