IN RE: the Application of F.W.S. (2021)

 PROCEDURAL HISTORY

A petition was filed by F. W. S. (Wes), pursuant to Article 81 of the Mental Hygiene Law, duly verified on November 28, 2016, seeking the appointment of a guardian of the person and property of his mother, BJS. After several person guardian and temporary property guardian appointments, detailed in prior decisions and orders of this Court, the Court appointed Wes as guardian of the person of BJS (hereinafter the “Person Guardian” or “Wes”), and Robin Staver as guardian of the property of BJS, by Order dated November 20, 2018.¹ That Order also directed that “Diane A. shall not be removed as a caregiver to BJS, barring her desire to no longer continue in the caretaker role or upon further Order of this Court.”

On October 28, 2019, Diane A., through her then-counsel, Drinald Bilcari, Esq., filed an affidavit requesting the removal of the Person Guardian. The Court commenced the hearing on January 10, 2020 and set a continuation date in March 2020. Due to the Covid-19 pandemic, the continuation of the hearing was postponed indefinitely.

The Court issued an Order dated January 14, 2020, directing that “Diane A. shall be allowed to visit BJS on Fridays and Saturdays from 5 p.m. to 7 p.m. and Tuesdays from 6 p.m. to 8 p.m., and Diane A. may bring her dog to visits if she so chooses.” That Order also struck the portion of the November 20, 2018 Order that prohibited the removal of Diane A. as a caregiver.

On November 25, 2020, Diane A., through her current counsel, Bryan Maggs, Esq., filed a petition seeking an Order compelling the Person Guardian to not remove Diane A. as a caregiver for BJS; to allow Diane A. to visit with BJS; and attorney's fees and costs. The Court treated the petition as a request to reconvene the previously suspended hearing and issued an Order to Show Cause on December 1, 2020, reappointing Peter Finnerty, Esq. as counsel to represent BJS

The Person Guardian, through his counsel, Scott D. Moore, Esq., filed a response to the petition, verified on December 11, 2020, seeking dismissal of the petition but allowing for Diane A. to visit with BJS pursuant to terms included in an exhibit attached to the response.

The hearing reconvened via Microsoft Teams on December 17, 2020, at which time the Person Guardian appeared with Mr. Moore; Mr. Finnerty appeared; the presence of BJS was dispensed with by the Court for good cause shown; and Diane A. appeared with Mr. Maggs. At the outset of the hearing, Mr. Maggs confirmed that Diane A. was not pursuing her original request for removal of the Person Guardian and instead was only pursuing the relief requested in the November 25, 2020 petition. The hearing concluded on December 18, 2020. Mr. Moore, Mr. Finnerty, and Mr. Maggs submitted written closing statements. This Decision resolves both of Diane A.’s petitions and is based on all evidence received in 2020 and informed by prior decisions of the Court in this matter.

THE HEARING

At the hearing, Diane A. testified on behalf of her petition, and the Person Guardian testified in opposition to the relief requested.

Diane A. has worked as a home health and personal care aide for more than 30 years. She first met BJS when she was hired to act as BJS's caregiver in September 2013. Within six months of working with BJS, Diane A. became close and started calling BJS “mom.” Diane A. was responsible for preparing meals, cleaning around the house, and helping BJS shower. Eventually, Diane A. also transported BJS to doctor's appointments and haircuts, and she took her for car rides.

According to Diane A., she initially enjoyed a good relationship with Guardian of the Person. When the original guardianship petition was filed in 2016, Wes and his brother, Jack, were not getting along, and they both asked Diane A. to act as person guardian, to which she agreed in 2017. Diane A.’s care for BJS did not change after she was appointed guardian. In 2017, Wes and Jack agreed that the hourly Medicaid rate payable to Diane A. for her work as BJS's caregiver was too low, and they agreed to personally pay Diane A. five dollars more per hour, using funds from an irrevocable trust BJS had created for their benefit.

Diane A. was removed as person guardian by Order dated December 21, 2017, because her employer at the time prohibited her from simultaneously acting as guardian and professional caregiver for BJS. That mandated removal triggered the ultimate appointment of Wes as Person Guardian.

Diane A. testified without contradiction that starting sometime in 2018, Wes stopped communicating directly with her. They only communicated via entries in a logbook kept at BJS's house at the Person Guardian's direction. Entries from the logbook were entered into evidence and have been reviewed by the Court. Diane A. acknowledged that she made several entries in the logbook that were critical of the Person Guardian, including regarding the care he has provided for BJS regarding a toenail and an ongoing diarrhea issue.

The Person Guardian terminated Diane A. as BJS's caregiver on November 25, 2019. Diane A. testified to providing the same care for BJS that she always had, and her employer, All Metro, had no complaints about her work. To date, Diane A. still works for All Metro.

Diane A. has visited with BJS in 2020, though she indicated that the Person Guardian has required his daughter to be present during visits to supervise, which had not previously been required. Diane A. always wears a mask while inside BJS's home, in accordance with Covid-19 protocol.

On cross-examination, Diane A. acknowledged that certain entries she had made in the logbook had a critical tone directed at the Person Guardian, but she credibly reiterated that he refused to communicate with her face-to-face. She testified that she would not now make the same type of critical entries in a logbook. Diane A. confirmed she would often bring her granddaughter to BJS's house while acting as caregiver, with the permission of All Metro and the Person Guardian. Diane A. described noticing issues with the other All Metro caregivers in BJS's home and admitted she had issues with some of the other caregivers. Certain entries in the logbook reflected her complaints about other caregivers in the home.

Diane A. admitted she would give BJS candy bars and sweet snacks, and she did not see any significant benefit to BJS keeping a regular sleep schedule. She got a dog for BJS, which she would bring to the house for BJS's benefit. If Diane A. came to the house for her shift at 10 p.m. with the dog, the dog would wake BJS up.

Diane A. sometimes phones BJS's home four or five times when no one picks up the phone. BJS enjoys their phone calls. Diane A. agreed that it is important for BJS's care that her personal aides and caregivers get along, and a breakdown in the dynamic between caregivers can negatively impact the care provided to BJS.

Wes testified that Diane A.’s critical logbook entries upset him. He made responsive entries to discourage gossip or angry remarks. He described having issues with All Metro but being happier with the services currently provided by Venture Forth. Wes tried to articulate that Diane A. was causing stress to BJS but was unable to fully identify BJS suffering some adverse effect from Diane A.’s presence in her home. He also could not explain why he felt Diane A. is an inappropriate caregiver for BJS beyond his personal issues with her, particularly regarding the logbook.

On cross-examination, Wes acknowledged that the issues he had with All Metro's workers ended after the company stopped providing care in the home. He also conceded that Diane A.’s logbook entries were aimed at providing him with information, and that she was following his request to communicate information via the logbook. He also testified that the logbook reflected other aides giving BJS junk food.

LAW AND ANALYSIS

This petition presents the Court with two issues. First, should the Court direct that Diane A. has the right to visit with BJS, over some amount of objection from the Person Guardian? The law guiding the outcome on this issue is known as Peter Falk's Law, enacted as an amendment to Mental Hygiene Law Article 81 on July 21, 2016. One provision allows the Court to specify individuals who are entitled to visit an incapacitated person, though not to the exclusion of others. MHL § 81.16(c)(6). The Court's January 14, 2020 Order allowed Diane A. to visit with BJS, though the Covid-19 pandemic initially disrupted the ability of the parties to safely arrange visitation between Diane A. and BJS.

The Court perceives no legitimate reason why Diane A. should not be able to visit with BJS. The Person Guardian was unable to articulate why visitation from Diane A. is in any way detrimental to BJS's safety, happiness, or well-being. BJS's counsel, Mr. Finnerty, is in favor of visitation taking place, asserting that it has been and will continue to be beneficial for to BJS.

The Court hereby finds that Diane A. is a person entitled to visit with BJS. The Court will direct that Diane A. may visit with BJS minimally three days per week for two hours per visit, and she may bring her dog to visits if she so chooses. Diane A. shall not bring any food to these visits. Diane A. must coordinate the times and days of visitation with the Person Guardian. If Diane A. wears a mask during these visits and complies with other public health restrictions then in place, the Person Guardian may not cancel visits for reasons related to Covid-19.

The second issue is whether the Court should direct that Diane A. be allowed to act as a professional caregiver in BJS's home, over the Person Guardian's objection. The November 20, 2018 Order Appointing Guardian grants the Person Guardian the authority to “[d]etermine who shall provide the personal care, health care and assistance for the personal needs and health of BJS.” That Order also directed that Diane A. not be removed as a caregiver, which was later stricken from the order, after the Person Guardian had in fact engineered her removal.

The Person Guardian did not credibly establish that Diane A. acted inappropriately as a professional care provider for BJS, beyond possibly giving BJS junk food, though the logbook clearly shows other caregivers were providing the same types of junk food to BJS. It is clear to the Court that any issues with Diane A. working as a care provider related to the personal dynamic between the Person Guardian and Diane A. and have nothing to do with BJS's care or what was in her best interest. It is established that Diane A. is an effective and appropriate caregiver for BJS. The question remains whether her service can be mandated by the Court.

The Court's focus necessarily centers on what is in the best interest of BJS, not Diane A. or the Person Guardian. The appointment order grants the Person Guardian the sole authority to choose who provides personal care for BJS. The Court will not override that discretion absent clear and convincing evidence that the actions of the Person Guardian are harmful to BJS or not in her best interest. It is clear to the Court that the Person Guardian's decision to prevent Diane A. from working as a care provider for BJS is driven by his personal animus for Diane A.

Whatever the Person guardian's motivation may be, the Court has not been presented with any evidence demonstrating that not staffing Diane A. as a care provider harms BJS. The Court does not find, on the evidence presented, that Diane A.’s acting, or failing to serve, as a caregiver is in BJS's best interest. The personal issues between the Person Guardian and Diane A. are not sufficient justification for the Court to override the Person Guardian's authority to choose who provides care for BJS.

The request for an order directing Diane A. be authorized to work as a professional care provider for BJS is denied; that decision will remain with the Person Guardian. This Decision does not preclude Diane A. from working as a caregiver for BJS, should such an arrangement be acceptable to the Person Guardian.

The Court is also denying Diane A.’s request for fees and costs related to this matter. Diane A.’s petition does not specify by whom she is requesting her legal fees and costs in this matter be paid, so the Court will analyze this request from the perspective of either BJS or the Person Guardian bearing the cost of Diane A. pursuing this application.

The so-called “American rule” dictates that in litigation, each side typically pays its own counsel fees, with exceptions for recovery pursuant to contractual provisions, statutes, or court rules to the contrary. 150 Centreville, LLC v. Lin Assoc. Architects, PC, 39 Misc. 3d 513, 529, 963 N.Y.S.2d 819 (Sup. Ct., Queens County 2013).

Mental Hygiene Law Section 81.10(f) grants the Court the discretion to award a petitioner's legal fees and costs for the pursuit of an original petition seeking the appointment of a guardian, from the funds of an incapacitated person. This Court typically directs payment of legal fees and costs from an incapacitated person's funds for post-appointment actions by a guardian to sell real property, engage in Medicaid planning and gifting, approve a settlement, and other activities with a direct and substantial benefit to the incapacitated person. Based on the evidence presented at the hearing, the Court finds that Diane A. pursued this petition in her own interest, to maintain a personal and professional relationship with BJS. It appears that BJS is of very limited cognitive ability, so it is difficult to conclude that the successful part of this application — the confirmation of Diane A.’s ability to visit with BJS — has sufficient benefit to BJS to justify BJS's payment for it, considered in tandem with BJS's ever-diminishing financial resources. Under all the circumstances presented here, the Court is not going to direct that BJS bear the financial burden of this partially successful application.

The Court also declines to assess legal fees and costs for this application against the Person Guardian. Article 81 does not address this circumstance directly. The only applicable court rule to allow for the assessment of fees and costs against the Person Guardian is Part 130 of the Rules of the Chief Judge, which provides that the court may exercise its discretion to award legal fees and costs against another party resulting from that party's frivolous conduct. Frivolous conduct includes conduct that is completely without merit in law and cannot be supported by a reasonable argument; is undertaken to delay the resolution of litigation or harass or injure another; or asserts materially false factual statement. While the Person Guardian's conduct is clearly motivated by his feelings toward Diane A., it does not rise to the level of “frivolous conduct” within the meaning of the Rules of the Chief Judge. The request for payment of Diane A.’s costs and fees from the Person Guardian is denied.

The Court notes that the Person Guardian made no request for payment of his legal fees and costs from BJS's resources. The Court has not considered, nor does it authorize, such payment.

This decision constitutes the Order of this Court. In furtherance of this decision, it is hereby

ORDERED, that the petition of Diane A. is granted regarding her request for visitation and denied regarding her request to be made a mandatory professional caregiver for BJS; and it is further

ORDERED, that pursuant to § 81.16(c)(6) of the Mental Hygiene Law, the following persons are entitled to visit BJS if they so choose. However, the listing of such persons shall in no way limit the persons entitled to visit BJS: DIANE A.; and JACK; and it is further

ORDERED, that Diane A. may visit with BJS minimally three days per week for two hours per visit, and she may bring her dog to visits if she so chooses. Diane shall not bring any food to these visits. Diane A. must coordinate the times and days of visitation with the Person Guardian. WES may not cancel or interfere with this visitation for any reasons related to Covid-19 as long as Diane A. wears a mask during these visits, and complies with other public health restrictions then in place; and it is further

ORDERED, that Diane A.’s request for fees and costs related to this petition is denied; and it is further

ORDERED, that Michael Martino, Esq., as Guardian of the Property of BJS, shall pay to Peter F. Finnerty, Esq. from the funds of BJS the sum of $3,000 for legal services and disbursements rendered as counsel to BJS.

FOOTNOTES

1.   Ms. Staver was discharged as property guardian and replaced by Michael Martino, Esq., whose appointment was confirmed by Order dated March 19, 2020. Mr. Martino remains the property guardian to-date, and the property guardianship is not at issue in the petition currently before the Court.

David H. Guy, J.