In re Chase
Order and judgment (one paper), Supreme Court, New York County (Carol Arber, J.), entered on or about January 8, 1998, which, to the extent appealed from, denied that portion of petitioner’s application which sought an order appointing her guardian over the person and property of her father, Murray Chase, and appointed a neutral guardian, Margaret Bomba, Esq., and supplemental order, same court and Justice, entered on or about February 6, 1998, which, to the extent appealed from, directed the payment of certain sums to the court evaluator and court appointed attorney, unanimously modified, on the law, the fаcts, and in the exercise of discretion, to delete the name of Margaret Bomba, Esq. as guardian of the person and property of Murray Chase, and insert the name of Renee Chase in her place upоn compliance with the requirements of Mental Hygiene Law § 81.39 (b), adding a provision requiring the filing of an additional report in compliance with Mental Hygiene Law § 81.31 in the month of November, requiring each of the reports filed рursuant to Mental Hygiene Law § 81.31 and this order to contain a financial accounting verified by a certified public accountant as to its accuracy, requiring Murray Chase to be physically examined semi-annually by a сourt-appointed physician, and reducing the fees of the court evaluator and court-appointed attorney to $19,877 and $8,690, respectively, and otherwise affirmed, without costs.
On February 28, 1996, Murray Chase, a 71 year old divorced man, suffered a severe stroke and was admitted to St. Lukes-
It is uncontroverted that, in anticipation of his arrival, his adult daughter, Renee Chase, arranged for a wheelchair, a hospital bed, a рhysical therapist, as well as home health-care aides to provide her father with 24 hour care. Additionally, Ms. Chase established charge accounts at the grocery store and pharmacy, and saw to it that the bills for these items, as well as the rent and utilities, were paid. It also appears that, in October, 1996, Ms. Chase arranged for a geriatric case manager, Halley Glazer, to become involved in her father’s carе.
Thereafter, by a petition dated January 23, 1997, Ms. Chase commenced a proceeding pursuant to article 81 of the Mental Hygiene Law seeking, inter alia, to be appointed guardian of her father’s person and property. A cross-petition, which was ultimately abandoned, was filed by a woman who was employed by Mr. Chase and appears to have lived with him for many years. After almost one year, various court appearаnces, a hearing, and the submission of reports from a court evaluator and temporary guardian, Supreme Court issued an order naming a non-family member as Mr. Chase’s guardian. No factual findings attended the court’s order аs required by Mental Hygiene Law § 81.15. It is evident, however, that Supreme Court accepted the conclusions of the court evaluator and determined not only that Ms. Chase was inadequately caring for her father, but that her finаncial interests were adverse to his. Our review of the record leads us to conclude that Supreme Court erred in its acceptance of the court evaluator’s conclusions.
It has long been the law in this State, under both article 81 of the Mental Hygiene Law and its precursors, that “strangers will not be appointed [guardian] of the person or property of the incompetent, unless it is impossible to find within the family circle, or their nоminees, one who is qualified to serve” (Matter of Dietz,
With respect to the personal care that Mr. Chase was receiving under the guidance of his daughter, the record fails to contain any meaningful evidence of inadequaсy. As previously noted, upon being discharged to his home, a full compliment of medical equipment and staff awaited his arrival. Moreover, his geriatric case manager, Ms. Glazer, who visited Mr. Chase biweekly, charactеrized Ms. Chase as a loving, supportive and devoted daughter. Ms. Glazer stated that she had a “tremendous amount of respect for the way [Ms. Chase] has handled the situation” and that “she has done everything a caring, loving daughter should do” and that it would be “tragic to appoint anyone else as guardian” with respect to Mr. Chase’s personal needs. A similar view was expressed by Pawel Szeparowics, a graduate of a foreign medicаl school who was working as a home-care worker while he was studying for his American medical exams. In fact, even the court-appointed evaluator (who ultimately recommended that Ms. Chase not be appointed as her father’s guardian) was constrained to admit that Mr. Chase’s person was being properly cared for, subject only to certain minor deficiencies that could be “easily corrected.”
This evidencе supports the conclusion that Ms. Chase was properly caring for her father not only at the time the petition was filed, but even prior thereto (Mental Hygiene Law § 81.19 [d] [3]). This, however, does not conclude the matter for the question remains whether there is a conflict of interest between Ms. Chase and her father that should preclude her appointment.
The court evaluator portrayed Ms. Chase as a greedy daughter who was raiding the assets of her incapacitated father. The basis for this portrayal was rooted in the transfer of certain assets to Ms. Chase and her brother, namely, bank accounts containing in excess of $500,000, and three parcels of real property located in Manhattan. While initial examination of these transfers could lead one to suspect improprieties, careful scrutiny reveals that the transfers were not nefаrious and certainly not of a character to preclude Ms. Chase from serving as her father’s guardian.
First, the bank accounts were transferred on October 3, 1995, approximately five months before Mr. Chase’s stroke. These transfers were effectuated via a power of attorney that Mr. Chase executed that day in front of an assistant vice-president of Chase Bank. We agree with the court evaluator that there was a decline in Mr. Chase’s mental and physical capacities.
It would also seem that Ms. Chase, in participating in these transfers, was concerned about protecting her father’s assеts from Mr. Chase’s companion who, as previously noted, herself had initially made an effort to be named guardian. There are claims by Ms. Chase that this woman had attempted to access Mr. Chase’s money and proрerty by collecting rent checks that were not deposited into his bank accounts and withdrawing $20,000 from a New Jersey bank account.
Significantly, the aforementioned transfer of assets by Ms. Chase would also appeаr to have been consistent with the wishes of Mr..Chase (see, Matter of Wogelt,
We thus conclude, contrary to Supreme Court, that Ms. Chase is the appropriate, and in fact preferred, choice as the guardian of her father’s person and property. In so conсluding, we recognize that, while the Mental Hygiene Law requires our courts to remain vigilant to protect vulnerable members of our
We note that, to the extent that there are legitimate concerns regarding potential improprieties, we believe such concerns are adequately addressed by requiring physical examination of Mr. Chase by a court-appointed physician until further order of the Supreme Court, and requiring Ms. Chase to file a report in conformance with Mental Hygiene Law § 81.31 twice yearly, the financial aspects of which shall be verified by a certified public accountant. In any event, as to the possibility of financial abuses, they have been largely diminished sincе, pursuant to an order of the Supreme Court dated September 23, 1998, the funds in the various bank accounts are restrained and may only be used for the benefit of Mr. Chase.
Finally, as to the fee awards made to the court evaluator and court-appointed attorney, consideration of all relevant factors leads us to conclude that the hourly rates awarded were excessive (see, Matter of Potts,