For the Appointment of a Guardian of the Person and Property Pursuant to Article 81 of the Mental Hygiene Law for Decision and Order A petition has been filed for the appointment of a Guardian of the person and property of MARTHA GERKEN, an Alleged Incapacitated Person (“AIP”). This court is satisfied that Ms. Gerken was served with the Order to Show Cause and petition by personal delivery at least 14 days prior to the return date. The court is satisfied that all necessary interested persons have been served. Mental Hygiene Legal Service, by Naomi Weinstein Esq. was initially appointed to serve as the Court Evaluator. By interim order dated October 17, 2018, the appointment was vacated and Mental Hygiene Legal Service was subsequently appointed as counsel for Ms. Gerken. The proceeding was commenced by petitioner, Mosholu Parkway Nursing and Rehabilitation Center (“Mosholu Parkway”). Ms. Gerken has been a resident at Mosholu Parkway since January 3, 2018 upon her discharge from St. Barnabas Hospital. The proceeding was primarily commenced for the appointment of a guardian to assist Ms. Gerken in addressing her outstanding debt at Mosholu Parkway for the costs of her care. According to petitioner, New York City Human Resources Administration (“NYCHRA”) requested copies of Ms. Gerken’s bank statements and bank account information for the past two (2) years and Ms. Gerken was unable to furnish the financial documentation without assistance. Petitioner alleged that without such assistance, Ms. Gerken was at risk of losing her Medicaid benefits. The proceeding was before the court on October 30, 2018. During a conference with Ms. Weinstein and petitioner on that date, Ms. Weinstein informed the Court that Ms. Gerken had previously executed a power of attorney designating her brother as her agent but could not locate the instrument. Ms. Weinstein further stated that Ms. Gerken has the capacity and was willing to execute a new power of attorney and designate her brother as her agent so that he could assist her with the financial issues she had with Mosholu Parkway. The matter was adjourned to December 4, 2018 for a status update. On December 4, 2018, Ms. Gerken’s brother, Karl Gerken, appeared with his attorney, Yisroel Schulman. At the conference with the Court, Mr. Schulman requested an adjournment so that Ms. Gerken could execute a new power of attorney and designate her brother Karl as her agent. The matter was adjourned to January 17, 2019 for possible withdrawal by petitioner pending the execution of a new power of attorney by Ms. Gerken. On January 16, 2019, Mr. Schulman, via email,1 requested an adjournment of the January 17th date due to a schedule conflict he had with another matter. Mr. Schulman indicated that Ms. Gerken had executed a new power of attorney designating her brother Karl as her agent on December 4, 2018 and provided a copy of the same to the court, her counsel and petitioner. Upon receiving a copy of the power of attorney, the Court inquired of petitioner as to whether they would be withdrawing the guardianship proceeding. Petitioner indicated that it would not withdraw the matter since “all outstanding issues regarding the brother’s role as POA for his sister” had not been resolved (Petitioner’s email January 16, 2019, 12:08pm). In response, Mr. Schulman averred that during the conference on December 4, 2018, he had believed that he would be able to establish the amount that was owed to Mosholu Parkway over what Medicaid had already paid out. Mr. Schulman requested another month to do so. He stated that he would be ready for a hearing by the next court date in any event. The matter was adjourned to February 19, 2019 upon consent of all parties. On February 15, 2019, the Court reached out to Mr. Schulman to inform him that he did not need to have Mr. Gerken present given the fact that he resides out of state, and that the matter would be on for a conference if it was not withdrawn prior to the February 19, 2019 date. Mr. Schulman responded by noting his objection to the guardianship proceeding. He averred that the nursing home bill was not paid due to a legitimate billing dispute or misunderstanding, not due Ms. Gerken’s lack of capacity. Ms. Schulman objected to the commencement of the guardianship proceeding based solely on billing issues or Medicaid approval. In response for another inquiry by the Court as to whether the petition would be withdrawn, petitioner, again, indicated that they would not withdraw the petition asserting the Mr. Gerken and Mr. Schulman have neither cooperated with the nursing home’s attempt to obtain Medicaid for Ms. Gerken nor assisted in her discharge planning. Petitioner indicated that they would like to proceed with the case. The matter was adjourned to March 11, 2019 for a hearing. By email dated March 8, 2019, petitioner notified the Court that they believed the issues could be resolved without further judicial intervention and requested an adjournment for 45 days for a control date. The matter was adjourned upon consent to May 2, 2019 for a control date. On May 2, 2019, the matter was before the Court. Ms. Weinstein represented that Ms. Gerken did not wish to appear in court and waived her appearance. In requesting to withdraw the petition, petitioner indicated that it could not satisfy its burden of demonstrating that Ms. Gerken is incapacitated by clear and convincing evidence. Petitioner’s counsel indicated that the administrator of Mosholu Parkway only made the decision to withdraw the petition the day before the court date. Petitioner represented that it would pursue a “plenary action” for the outstanding debt. Ms. Weinstein noted that “[f]rom the beginning, [Ms. Gerken] had capacity and wanted her brother to assist her.” CONCLUSION Pursuant to 22 NYCRR 130-1.1 (a) and (b), the court, “in its discretion,” may award costs, including’s fees, as well as impose financial sanctions against an attorney or firm that engages in “frivolous conduct.” When determining whether the conduct undertaken was frivolous, the court must consider the circumstances under which the conduct took place and whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent (22 NYCRR 130-1.1 [c]). 22 NYCRR 130-1.1(c) provides three categories of “frivolous conduct”: “(1) [conduct which] is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law”; “(2) [conduct which] is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another”; or “(3) [conduct which] asserts material factual statements that are false.” Based upon the record before the Court, this Court finds that it was unnecessary and inappropriate for the proceeding to continue once a new power of attorney was executed. Petitioner’s allegations of Ms. Gerken’s purported functional limitations and lack of appreciation of such limitations in its verified petition are belied by the reason offered by petitioner’s attorney to withdraw the petition — that petitioner “cannot satisfy the criteria” of demonstrating that Ms. Gerken is incapacitated. The allegations of her purported incapacities are further belied by the fact that at no point did petitioner ever assert that Ms. Gerken lacked capacity to execute a new power of attorney. Mental Hygiene Law §81.02 specifically provides that the court may appoint a guardian for the person if the person agrees to the appointment or is incapacitated. “In deciding whether the appointment is necessary, the court shall consider…the sufficiency and reliability of available resources, as defined in subdivision (e) of section 81.03 of this article” (MHL §81.02[a][2]). Pursuant to Mental Hygiene Law §81.03(e), powers of attorney are defined as an “available resource.” It is clear the purpose for which this guardianship proceeding was brought, to wit, for the nursing home to be paid for its care of Ms. Gerken, was not the Legislature’s intended purpose when article 81 of the Mental Hygiene Law was enacted in 1983 (see Matter of G. S., 17 Misc3d 303, 306 [Sup Ct, Bronx County 2007]). Here, by refusing to withdraw the petition, petitioner essentially utilized the Article 81 proceeding as leverage to compel Mr. Gerken and his attorney, Mr. Schulman, to resolve Ms. Gerken’s financial issues with the nursing home in a more expedient manner. In these circumstances, Petitioner’s refusal to withdraw the petition after Ms. Gerken was deemed to be sufficiently capacitated to execute a new power of attorney constitutes frivolous conduct. MHL article 81 was never intended to be a vehicle to collect on debt owed to a skilled nursing facility. “[P]etitioner must seek a different avenue of redress for that relief as a guardianship application is inappropriate” (Matter of G.S., 17 Misc3d at 307). Petitioner’s contention that, upon withdrawal, it would “pursue a plenary action” after several adjournments and five months after a new power of attorney had been executed is disingenuous at best. A plenary action to collect on the debt owed to it had always been available to petitioner. This avenue of relief was certainly available after Ms. Gerken had executed a new power of attorney. The Court finds that the imposition of costs is warranted to the extent that additional services were required and performed as a direct result of the frivolous conduct (22 NYCRR 130-1.1 [a]). Although the Court does not find that the commencement of the Mental Hygiene Law article 81 proceeding was inappropriate or ill-advised as petitioner is clearly entitled to be paid for the services it provides to its residents and the commencement of this action culminated with Ms. Gerken’s execution of a new power of attorney, the Court does find, however, that it was improper for petitioner to refuse to withdraw once the power of attorney was executed since an advanced directive, such as the power of attorney constitutes an available resource as well as a less restrictive intervention to assist Ms. Gerken. The Court finds it appropriate for petitioner to bear the costs of Mr. Schulman’s services after the new power of attorney had been executed. Accordingly, it is HEREBY ORDERED, that the petition is deemed withdrawn; and it is further ORDERED, that the fee of Yisroal Schulman Esq, will be fixed by the Court and, is to be paid by the Petitioner, Mosholu Parkway Nursing and Rehabilitation Center upon settlement of an order together with an itemized Affirmation of Services rom the attorney. This constitutes the decision and order of this court. Dated: August 22, 2019
