By Petition verified June 8, 2020 and brought by Order to Show Cause, Petitioner E.T. requested that a guardian of the person and property be appointed for her father, N.M. In said Order, the Court allowed Petitioner to act as Temporary Guardian of the Person and Property with limited powers. The Order further appointed Kenneth L. Bobrow, Esq. to serve as Court Evaluator. At an appearance on July 30, 2020, Mr. Bobrow recommended that N.M. have assigned counsel in this proceeding. On August 5, 2020, the Court signed an order appointing Joseph H. Hobika, Jr., Esq. to serve in this capacity. At Mr. Hobika's request, N.M. was excused from appearing in these proceedings on the basis that he could not meaningfully participate. Petitioner's description of her father's condition in the petition supported this request.

At an appearance on October 26, 2020, Mr. Bobrow articulated several concerns with Petitioner's management of her father's affairs and recommended appointment of an independent guardian. Desiring to protect N.M.'s interests, the Court appointed Carl S. Dziekan, Esq. to serve as Temporary Guardian of the Property. The Order dated November 5, 2020 gave specific powers to Mr. Dziekan and required him to file an initial report by December 3, 2020. The Order further required Petitioner to account to Mr. Dziekan by November 25, 2020 and turn over funds of N.M. in her possession.

On November 13, 2020, Petitioner's counsel B. Brooks Benson, Esq. filed a motion seeking permission to withdraw from the case. Mr. Dziekan filed objections in which he said [*2]Petitioner had not complied with the terms of this Court's order requiring her to account, and he was concerned that the absence of counsel would lead to further delays with compliance. Following oral argument on the motion on December 14, 2020, the Court gave Petitioner until January 15, 2021 to find new counsel. In the event no new counsel was retained, Mr. Benson would be required to serve as standby counsel at the hearing, which the Court scheduled for February 8, 2021. Mr. Hobika again requested that N.M. be excused from the hearing because of his inability to participate in a meaningful way. Petitioner offered nothing to the contrary.

The next communication to the Court came by way of letter dated January 21, 2021 from Mr. Bobrow. He asked that a conference be scheduled prior to the start of the hearing, as "events have occurred in this matter which may have significantly affected the landscape." By letter dated January 22, 2021 from the Principal Court Attorney, the parties and attorneys were advised that the February 8, 2021 hearing date would be converted to a conference. The letter further outlined multiple issues to be addressed at that time.

On February 8, 2021, Petitioner, Mr. Benson, Mr. Bobrow, Mr. Dziekan and Mr. Hobika appeared virtually, as did N.M. for the first time. An interpreter participated for N.M.'s benefit. Mr. Benson confirmed that he wished to withdraw as counsel, and the Court orally granted his motion.^[FN1] In response to the Court's concern, Mr. Benson reported that Petitioner notified the Social Security Administration of her father's medical improvement. The Court ordered Petitioner and Mr. Dziekan to file updated accountings, which both have done. With regard to the pending petition, both Petitioner and N.M. asked that it be withdrawn. Mr. Hobika reported that N.M. had already executed a power of attorney before a notary public, who told Mr. Hobika that N.M. appeared competent to sign.

On March 22, 2021, at Petitioner's request, the Court held a virtual conference with Petitioner, N.M., Mr. Hobika, Mr. Bobrow and Mr. Dziekan. An interpreter was present for this proceeding as well. Petitioner wished to discuss how her father could again receive his Social Security Disability payments, and this matter was addressed with Mr. Dziekan. Petitioner also had questions about some of the attorney's fee requests received by the Court, and she was given an opportunity to file objections.

Upon review of the record, the attorneys' fee requests, the fee request of the Temporary Guardian of the Property, and the objections filed by Petitioner, the Court's decision is as follows.

Given that both the Petitioner and her father requested the guardianship petition be withdrawn, the Court has no reason to deny this relief. In his appearances before this Court, N.M. appeared alert, able to understand the proceedings, and clearly articulate his preferences. Indeed, based upon Petitioner's description of her father in her petition, as well as his attorney's repeated requests that N.M. be excused from these proceedings because he presented as unable to participate meaningfully in any aspect thereof, N.M.'s recovery in the span of a few short weeks is nothing short of miraculous.

When a guardianship petition brought pursuant to Article 81 of the Mental Hygiene Law is either denied or dismissed, "the court may award a reasonable allowance to a court evaluator . [*3]. . payable by the petitioner or by the person alleged to be incapacitated, or both in such proportions as the court may deem just." (MHL § 81.09(f)). A stipulation of withdrawal can be treated the same as a denial or dismissal. (See generally Matter of Bloom, 1 Misc 3d 910[A], 2004 NY Slip Op 50014[U] [Sup Ct, Suffolk County 2004] [allocating responsibility for attorney's fees in a case withdrawn on stipulation]). Factors for a court to consider when deciding how to allocate fees include "whether there is evidence that the petitioner was motivated by avarice or possible financial gain, whether the petitioner has acted in good faith in commencing the petition, the sufficiency of the petition on its face, the relative assets or indigence of the petitioner and the AIP, and any special circumstances that may exist, such as benefits to the AIP that may have resulted from the filing of the petition." (Matter of Kurt T., 64 AD3d 819, 823 [3d Dept 2009]).

Quite frankly, the Court has concerns about the genuineness of this case. The driving force appears to have been settlement of a Workers' Compensation claim. As stated in the petition, the claim could not be settled without appointment of a guardian to sign the necessary paperwork. Petitioner was appointed Temporary Guardian for this purpose, and as it typically would, the Court closely managed the settlement funds pending the ultimate outcome of the guardianship hearing. After information was received from the Court Evaluator that highlighted inconsistencies in this case, and after the Court and Mr. Dziekan began to press Petitioner for greater details about her father's condition, her use of his funds as Temporary Guardian, and her need to present proof at a hearing, the Court then learned of N.M.'s sudden and unexpected recovery. Notably, at no point during the December 14, 2020 court appearance did Petitioner mention anything about her father making any improvement. At a later appearance however, Petitioner told the Court that her father was speaking in full sentences by the end of December. Described in the petition as "disabled mentally" (Petition, ¶ 5), "non-communicative" (id.), "mentally incompetent" (id. at ¶¶ 7, 9), "show[ing] no recognition" of his children (id. at ¶ 14a), "not know[ing] who he is" (id.), and "utter[ing] gibberish" (id.), N.M. was fully conversant with the Court by the February 8, 2020 conference. Since N.M.'s recovery obviated the need for proof about his medical and mental condition, and since the Workers' Compensation claim was fully resolved, the Court cannot help but wonder whether Petitioner had any intent to pursue the appointment of a permanent guardian.

In another case where the motives of a petitioner in a guardianship proceeding were called into question, the court required the petitioner to pay all of the attorney's fees incurred by counsel for the alleged incapacitated person, counsel for a child of the alleged incapacitated person, and the court evaluator. (See Matter of Monahan, 17 Misc 3d 1119[A], 2007 NY Slip Op 52063[U] [Sup Ct, Nassau County 2007]). The Court will follow a similar course of action here, except that payment will be made from funds of N.M. held by Mr. Dziekan, so as to ensure the fees are paid in full. The Court will order repayment by Petitioner to her father, and then N.M. can decide whether to pursue such repayment.^[FN2]

As for the amount of fees requested by Mr. Bobrow, the Court has reviewed his affidavit [*4]and finds his billing to be reasonable with regard to rate, time and scope. As Mr. Bobrow notes in his response to Petitioner's objections, she misunderstood entries in his billing statement and assigned incorrect time values to more menial tasks (for which Mr. Bobrow actually allocated reasonable and shorter amounts of time). In this Court's experience with guardianship proceedings, the court evaluator often spends the most time on a file because of the research, records review and personal contacts that need to be made. Regarding this case in particular, the Court is aware of the extra work Mr. Bobrow needed to perform to fill gaps in knowledge created by inaccurate representations in the petition.

Mr. Bobrow therefore will be awarded his requested fee of $12,072.50 for his work on this file, plus an additional $275.00 for time spent at the March 22, 2021 conference. The total amount of $12,347.50 shall be paid by Mr. Dziekan from funds of N.M. held in his guardianship account.

Statutory language governing payment of fees for counsel for an alleged incapacitated person is slightly different than for a court evaluator. The presumption is that "[t]he person alleged to be incapacitated shall be liable for such compensation unless the court is satisfied that the person is indigent." (MHL § 81.10(f)). In cases where a petition is dismissed, "the court may in its discretion direct that petitioner pay such compensation for the person alleged to be incapacitated." (Id. [emphasis added]). As explained by the Third Department, "[t]he purpose of the statute permitting shifting of fees to the petitioner is to caution those who would bring a frivolous petition, or one motivated by avarice, that they might very well have to bear the financial burden of the proceeding." (Matter of Kurt T., 64 AD3d at 823).

For the same reasons as set forth relative to allocation of the court evaluator fees, the Court will follow the same payment model for Mr. Hobika's fees. As for the amount of those fees, Petitioner's only objection was with respect to the hourly rate. Having been assigned all new guardianship proceedings filed in Oneida County since 2018, as well as the reassignment of cases once handled by now-retired judges, this Court has reviewed a significant number of billing statements. Generally speaking, attorneys in this area charge a lower rate than what Mr. Hobika is asking the Court to approve. Since "fees awarded in similar cases" is a factor for any court to consider when deciding an appropriate amount for attorney's fees (Matter of Bloom, 1 Misc 3d 910[A], 2004 NY Slip Op 50014[U], at *2 ), the Court is reluctant to make this case an outlier among recent fee awards. The Court therefore will award Mr. Hobika fees at an hourly rate of $275.00/hour. The total time detailed on his billing statement was reasonable, and the Court will add an additional hour for the time spent at the March 22, 2021 conference. The total fees to be awarded will therefore be $3,313.75.

Mr. Benson, as Petitioner's counsel, submitted a fee request for payment from funds belonging to N.M. According to Mental Hygiene Law § 81.16(f), "[w]hen a petition is granted, or where the court otherwise deems it appropriate, the court may award reasonable compensation for the attorney for the petitioner." In this case, the petition has been withdrawn at the insistence of both the Petitioner and N.M. Furthermore, N.M. signed a power of attorney instead of consenting to the appointment of a guardian, which he could have done pursuant to Mental Hygiene Law § 81.15(a). Although N.M. benefited from the settlement of the Workers' Compensation claim, Mr. Benson's firm has already been paid from those proceeds for their work in that proceeding. Finding that payment would be more appropriately made by Petitioner, [*5]the Court will not award fees from N.M.'s resources. In making this decision, the Court does not pass on the reasonableness of Mr. Benson's fee request or Petitioner's objections thereto.

Although Petitioner called into question some portions of Mr. Dziekan's final accounting,^[FN3] she did not take issue with his request for fees. The Court has reviewed his billing statement dated February 10, 2021 and finds it reasonable as to rate, time and scope. Given that Mr. Dziekan attended the March 22, 2021 conference, and will also need to file a final accounting, the Court will add another two hours to his billing statement and award $4,743.75 for fees, plus itemized disbursements of $163.75, for a total of $4,907.50. That amount may also be paid from monies held in the guardianship account, with the option to be given to N.M. to recover this sum from his daughter.

With the petition having been withdrawn, the Court will order the immediate discharge of Petitioner as Temporary Guardian of the Person and Property pursuant to the Order to Show Cause that was signed on June 12, 2020. The Court will further order the discharge of Mr. Dziekan as Temporary Guardian of the Property, effective upon the Court Examiner reviewing and approving a final account, and Mr. Dziekan turning over any remaining funds to N.M.

For the reasons stated in this Decision, it is hereby

ORDERED that the petition filed by E.T. is hereby deemed WITHDRAWN and DISMISSED WITH PREJUDICE as to any allegations regarding N.M.'s need for a guardian up to and through March 22, 2021; and it is further

ORDERED that Kenneth L. Bobrow, Esq. is awarded $12,347.50 for services rendered as Court Evaluator; and it is further

ORDERED that Joseph H. Hobika, Jr., Esq. is awarded $3,313.75 for services rendered as attorney for N.M.; and it is further

ORDERED that Carl S. Dziekan, Esq. is awarded $4,743.75 for fees, plus itemized disbursements of $163.75, for a total of $4,907.50 for services rendered as Temporary Guardian of the Property for N.M.; and it is further

ORDERED that within 30 days of the date of this Order, Carl S. Dziekan, Esq. is to pay the above sums to Mr. Bobrow, Mr. Hobika and himself, respectively, from N.M.'s funds being held in Mr. Dziekan's guardianship account, following which he may turn over any remaining funds less $1,000.00 to N.M.; and it is further

ORDERED that Mr. Dziekan is to file his final account with the Court no later than December 31, 2021, with a copy to be provided to N.M. and Court Examiner Stuart E. Finer, Esq.; the withheld funds are to be used to cover remaining out-of-pocket expenses of the guardianship and the costs of the Court Examiner in reviewing Mr. Dziekan's final accounting; and it is further

ORDERED that Carl S. Dziekan, Esq. is DISCHARGED as Temporary Guardian of the Property of N.M., effective upon the date of the Court Examiner's approval of Mr. Dziekan's final account or the payment of remaining funds to N.M., whichever is later; and it is further

ORDERED that E.T. is DISCHARGED as Temporary Guardian of the Person and Property of N.M., with no further need to account since N.M. expressed satisfaction with his daughter's services; and it is further

ORDERED that upon demand by N.M., E.T. is to reimburse him the total amount paid in attorney's fees awarded by this Decision & Order; and it is further

ORDERED that Mr. Dziekan shall serve a copy of this Order with Notice of Entry upon E.T., N.M., Mr. Bobrow, Mr. Hobika and Mr. Benson by regular mail, no later than fifteen business days after the original is filed with the Oneida County Clerk's Office.

This constitutes the Decision & Order of the Court.