This guardianship case was commenced on April 21, 2023, by petition of the Broome County Department of Social Services, based primarily on concerns of financial abuse of then 90 year old Melva H. at the hands of her home health aides. Following the initial hearing on May 23, 2023 the Court found a need for a property guardian was established and appointed Amanda Giannone, Esq. as Special Guardian of the Property of Melva H., directing her to file an initial report. The report, filed June 19, 2023, contained "information that raise[d] serious concerns about Melva H's safety in her home." In response the Court, by order dated June 23, 2023, appointed Care Manage for All, LLC ("CMA"), a geriatric care agency, as temporary guardian of the person of Melva H., to perform an assessment of her level of care and safety in the home, to facilitate medical evaluation(s) if deemed appropriate, pursuant to Mental Hygiene Law section 81.23(a), and to report back to the Court and counsel. CMA filed its report on June 29, 2023. Melva had been medically evaluated at the hospital and remained there. The report confirmed the Court's concerns for Melva's personal safety and well being. The Court reiterated and expanded the authority of CMA as temporary person guardian to include the ability to determine Melva's contacts and social environment and to confirm Melva's placement without [*2]interference pending further Court order.

The matter was set down for further hearing on the issue of the need for a personal needs guardian for Melva. At a hearing on July 20, 2023, Kim Evanoski, sole member of CMA, testified to the contents of her June 29, 2023 report and to subsequent events, including safety concerns about the presence of Melva's son, Randall H. and certain care providers, in the house, as an impediment to Melva returning to reside there. In a decision on the record at the conclusion of the hearing, the Court appointed Care Manage For All, LLC as Person Guardian of Melva H. and Chemung Canal Trust Company as Property Guardian of Melva H., confirmed by order and findings dated July 21, 2023. The order also confirmed the Court's appointment of Chemung Canal Trust Company as the successor trustee of the Melva A. H. Lifetime Revocable Trust, dated June 21, 2017. One of the assets of the trust is the home in which Melva and her son both resided before the commencement of this guardianship case.

CMA filed its initial report as Guardian of the Person on October 23, 2023. On October 27, 2023 the Court issued an order appointing Mental Hygiene Legal Service (3rd Dept.) as counsel for Randall H., based on "[t]he Person Guardian report[ing] to the Court that it is having difficulty getting Melva H. safely discharged from Longview in Ithaca, NY to her home in Lisle, NY due to issues surrounding her son, Randy H. The Court f[ound] that the appointment of counsel for Randy H. in this matter would be in Melva H.'s interest and would likely be helpful to the resolution of this matter." Randall remained in the home in Lisle, to which Melva never returned.

Randall H. was the respondent in a petition for the appointment of a guardian under Mental Hygiene Law Article 81 filed on May 9, 2024 by CMA as Guardian of the Person of Melva H.. The Court again appointed MHLS as counsel for Randall. Randall retained Robert Beehm, Esq. on June 4, 2024 ^[FN1] , confirmed by substitution of attorney filed on June 17, 2024. An attorney's conference was held in lieu of the scheduled hearing on June 25, 2024. Scheduled hearing dates of August 2, 2024 and September 24, 2024 were also converted to conferences. A status date of October 25, 2024 became moot when Melva passed away on October 12, 2024. The petition against Randall was then withdrawn on consent and dismissed.

On December 13, 2024, Mariette Geldenhuys, Esq., on behalf of the Person Guardian, filed a discharge petition and final report due to Melva's death. The petition was returnable by notice of motion on January 10, 2024, and remains pending.

On January 9, 2025, Randall H., Melva's son, through his counsel, Robert S. Beehm, Esq., filed objections to the Person Guardian's discharge petition. The objections ask the Court to deny the Person Guardian's discharge petition. The objections start with the disclosure that Randall has commenced a separate Supreme Court action against the Person Guardian, referenced in footnote one below. That action is not before this Court and does not preclude the determination of the pending discharge petition. The objections go on to allege causes of action sounding in breach of the guardian's fiduciary duty, and that the Person Guardian did not make decisions in Melva's best interest.

The objections assert that the Person Guardian placed Melva in a residential setting at [*3]Longview Senior Living Community, which did not provide the proper level of care she needed, resulting in excessive funds being spent on the cost of her care. The objections allege that if Melva were placed in a skilled nursing setting, the cost of her care would have been less than the placement made for her. Randall also alleges he was blocked from access to Melva by the Person Guardian during its period of service, causing him emotional and psychological damage and preventing him from being able to assess whether the care she received was appropriate for her needs. Randall claims the Person Guardian denied all contact he requested, including supervised visitation. The objections state Randall was not informed of Melva's 2024 hospitalization or informed sufficiently promptly of her death.

The objections allege malfeasance by the Person Guardian in utilizing a related company called All Q Care LLC to provide one-on-one care for Melva at Longview. The objections state that All Q Care LLC is not licensed to provide care and recites the common ownership and staffing of it and the Person Guardian. Randall asserts the Person Guardian benefited financially by hiring her own company to provide care services in a residential setting with an inappropriate level of care for Melva's needs.

On February 21, 2025, Ms. Geldenhuys, on behalf of the Person Guardian, filed a response to Randall's objections. The response cites Mental Hygiene Law section 81.36(a), which states that the "court appointing the guardian shall discharge such guardian . . . if it appears to the satisfaction of the court that . .. the incapacitated person has died. . . ." Since no one disputes Melva has died, Ms. Geldenhuys argues there is no basis to deny the Person Guardian's request for discharge. The response goes on to respond to the substance of each objection raised by Randall.

On February 7, 2025, the Property Guardian, by Ms. Geldenhuys, filed a discharge petition with final report. The petition was returnable on-submission on March 7, 2025, and remains pending. The petition requests $91 of the funds remaining in the guardianship account be paid to Ms. Geldenhuys for legal fees and the remaining $11,784.49 be paid to Melva's estate. The Trust, with assets of $976,118.68 as of January 31, 2025 remains in place for Randall's benefit, pursuant to the its terms. A Trust accounting was provided with the Property Guardian's final report.

The Court issued an order dated February 6, 2025, appointing Jo A. Fabrizio, Esq., Court Examiner for Broome County, as Special Referee to examine the final accounting submitted by the Property Guardian.^[FN2] Ms. Fabrizio filed a referee report on February 12, 2025, which in fact responds to the final reports of both the Person Guardian and the Property Guardian. That report indicates that in the Court Examiner's report ^[FN3] on the 2023 annual report, the Examiner raised issues of "self-dealing by the [Person] Guardian [Care Manage For All, LLC]" but Melva died before the Examiner made a motion to bring the issue before the court. The Referee's report also [*4]notes she raised issues as examiner of the Person Guardian's 2023 annual report that no physician's statement was provided, causing her to be concerned for Melva's welfare; again, no motion was made before Melva's passing. The Referee's report notes that in 2024, in addition to a court-awarded amount of $5,350 paid to the Person Guardian for service as such, $330,322.80 was paid "for care and reimbursement to the Person Guardian's companies". The Referee asserts this violates the Part 36 Rules of the Chief Judge, as there was no order authorizing the Person Guardian to utilize its own company to provide direct care to Melva.

The Referee notes that Randall became the beneficiary of the Trust on Melva's passing. She also notes no orders were issued from the Court approving expenditures for appraisals, or for legal fees in excess of the threshold in the appointment order.

On March 21, 2025, Ms. Geldenhuys filed a formal response to the issues raised in the Referee's report with respect to the guardians' respective actions. In essence, Ms. Geldenhuys submits that if the referee had any issues with the guardians' actions, she should have acted sooner to raise such issues during Melva's lifetime.

On March 6, 2025, Mr. Beehm filed formal objections to the Property Guardian's discharge petition. These objections, like the ones asserted in response to the Person Guardian's discharge petition, ask that the petition be denied without any further, more specific relief requested. As an initial matter, Randall objects to Ms. Geldenhuys representing both guardians in this matter, asserting it is a conflict of interest for one attorney to represent both in relation to these discharge petitions. The objections to discharge of the Property Guardian are similar to those asserted against the Person Guardian, including objection to payments to All Q Care totaling $131,658.75. Objection is also made to the Property Guardian not visiting Melva, relying on information from Kim Evanoski, the principal of the Person Guardian, and removing personal property from Melva's house without now accounting for it.

On March 21, 2025, the Property Guardian, by Ms. Geldenhuys, filed a response to Randall's objections. The response takes the position that Ms. Geldenhuys' representation of both guardians does not constitute a conflict of interest. The response asserts that the Property Guardian's responsibility did not include choosing caregivers for Melva, but instead to pay for those as arranged by the Person Guardian. The Property Guardian reports it frequently communicated with the Person Guardian to understand Melva's needs and that it found the All Q Care charges within the normal range from experiences in other similar matters. The Property Guardian states that it was not tasked with visitation and properly relied on the information communicated to it by Kim Evanoski, the principal of the Person Guardian, who was responsible to identify the least restrictive environment for Melva. The Property Guardian also asserts that any unaccounted-for personal property removed from Melva's home was in poor condition and needed to be disposed of.

The Court convened a conference with counsel on April 4, 2025, at which time Mr. Beehm appeared; Ms. Geldenhuys appeared with Kim Evanoski and Gregory Stewart, Vice President/Senior Wealth Advisor of CCTC; and Ms. Fabrizio appeared with her assistant, Mary Waibel. The Court discussed the open and pending issues to determine the procedure and scheduling of the resolution of these petitions. Mr. Beehm requested the Court schedule a fact finding on Randall's objections.

Essentially, the court drew a distinction between the visitation/personal needs objections and the financial/self-dealing objections. The Court expressed that it was not yet ready to render a decision regarding Randall's objections pertaining to allegations of the Person Guardian's self-[*5]dealing for use of its own company to coordinate or provide care to Melva during her lifetime. Those objections will require a fact finding hearing, the parameters of which are set forth in this decision.

The Court communicated that some of Randall's objections to both petitions pertain to discretionary decisions made by the Person Guardian during Melva's lifetime, including decisions regarding her placement and restriction on contact between Melva and Randall. There is a threshold issue of whether an interested person not a party to a guardianship can raise such claims after the incapacitated person has passed.

The parties were directed to provide the Court with legal authority regarding Randall's position that an interested person has a justiciable claim for relief against a person guardian in the context of an Article 81 guardianship, specifically pertaining to Randall's objections to the Person Guardian's decision making with respect to Melva's contact with Randall, medical care decisions, and notification following Melva's death. The court issued a scheduling order dated April 8, 2025, allowing counsel time to submit briefs and responses regarding whether there is any cognizable cause of action regarding the decisions and actions of a person guardian, after the incapacitated person has died.

Mr. Beehm filed an affirmation and memorandum of law on May 22, 2025. Mr. Beehm relies on the case of In re Solomon T.R., 6 AD3d 449 (2d Dept 2004) regarding the person guardian's denial of visitation. The court finds this case inapplicable, as it pertains to visitation with an incapacitated person during their lifetime. It does not address any potential cause of action to be asserted against a person guardian after an incapacitated person's death. Rather, the conclusion reached in that case reinforces that a desire for contact and visitation by an interested party, including a son such a Randall, is a basis for a petition to an Article 81 court, on which a right to a hearing exists. Matter of Elizabeth TT. (Suzanne YY.—Elizabeth ZZ.), 177 AD3d 20, 22 (3d Dept 2019). The time to assert a right of visitation with an incapacitated person is during their lifetime, when visitation is still possible. After death, any effort to achieve contact or visitation is rendered moot.

Ms. Geldenhuys filed a responding affidavit and memorandum of law on July 2, 2025. She argues Randall does not specify any remedy he is seeking for the alleged improper denial of visitation, and he does not provide any supporting case law or legal authority for a cause of action after an incapacitated person's death. Ms. Geldenhuys also argues the Person Guardian had the discretion to deny visitation and had the basis to do so based on Randall's own history of inappropriate, erratic actions toward Melva.

Randall does not provide any authority to support his claim for relief against the Person Guardian arising from actions and decisions it made pertaining to visitation with Melva. The time to bring these claims was during Melva's lifetime. Issues relating to Melva's safety in her home, including those relating to Randall, were brought to the Court early in these proceedings. There was substantial testimony about these issues, leading to the Court's decision to appoint first a special person guardian and then a permanent one. This included testimony satisfying the Court that the issue of the person guardian's authority for placement of Melva and control over her social environment should be clear and of broad scope. This was clarified in the Court's order of June 30, 2023.

The decisions and actions of the Person Guardian relating to contact and visitation between Melva and Randall and now objected to by Randall fall squarely within the discretion inherent in the authority granted to the person guardian. MHL § 81.22. In this case the depth and [*6]breadth of that authority were more clearly before the court, and addressed by it, than is often the case in an Article 81 guardianship. Randall has not argued the decisions made were outside the scope of the Person guardian's authority, only that he disagreed with them, that they harmed him, and that he felt powerless to respond to them. To the extent he alleges they were inconsistent with Melva's desires, he has nothing other than his self-serving affidavits to offer in support, which are insufficient to sustain such a novel claim.

The Court perceived Randall's potential need for assistance in understanding and addressing his options and rights. It took the unusual step of appointing counsel to assist him despite his having no legal right to counsel under MHL Article 81, immediately after the Person Guardian filed her initial report, which expressed continuing concerns about effectuating Melva's desired return to her home in light of Randall's issues, as well as concerns about the fact that Melva, who was judicially deemed incapacitated, was the agent under Randall's power of attorney and his representative payee for benefits. Randall also made the decision to retain his own counsel at about the same time. Randall had the assistance of counsel for approximately a year and could have taken legal steps to address these concerns.

The Court takes note of the applicability of the doctrine of latches, which is an "equitable bar based on a lengthy neglect or omission to assert a right, which results in prejudice to an adverse party." Gardner v Leitgeb & Vitelli, LLP, 34 Misc 3d 1228(A), 1228A (Sup Ct, Suffolk County 2012). Randall, and his counsel who appears here, had ample opportunity to bring application before this court regarding the Person Guardian's restraint on contact and visitation with Melva. Having failed to do so, Randall cannot now assert a justiciable harm with a legal remedy, as none appears to exist after Melva has died.

The court hereby dismisses the objections pertaining to Randall's access to and visitation with Melva and notification regarding her hospitalization and death. Any related claims of Randall's psychological or emotional harm as a result of lack of contact and visitation are accordingly also dismissed.

The authority of the Property Guardian as set forth in the appointment order includes the power to pay bills and creditors of Melva. It does not include the power to determine who provides care to Melva, or her placement or care level. That authority is specifically and solely granted to the Person Guardian.^[FN4] The objections to the discharge of the Property Guardian do not allege the bills were not paid as presented, but that they were improper because they were rendered in breach of the Person Guardian's fiduciary duty. Responsibility for that breach, if proven at hearing, rests with the Person Guardian.

With respect to the issues raised in the Referee's report, first, there is no requirement for the Property Guardian to have visited Melva during her lifetime. Where different individuals or [*7]entities serve in the roles of person and property guardian the responsibility for visitation lies with the person guardian. The appointment order in fact does allow the Property Guardian to be "compensated according to its published fee schedule."

The issue raised by the Referee with respect to the use and payment of a company affiliated or under common ownership with the Person Guardian is not a violation of the Part 36 rules. Care managers and providers are not secondary appointees requiring court authorization. 22 NYCRR 36.1(a). These payments are nonetheless problematic, as a breach of fiduciary duty which precludes self-dealing. Matter of Jane S., 15 Misc 3d 1037 (Sup Ct, Otsego County 2007). Randall has raised this same issue in his objections, and it will be addressed by the Court as part of the ultimate disposition of the objections. The Court will consider the Referee's report as part of the record for disposition of the objections and relieves the Referee of further active involvement in this matter. An order directing the Referee's compensation for review of the final reports will issue.

The Court is not addressing the issue of the conflict of interest raised by Randall regarding Ms. Geldenhuys representing both guardians on these discharge petitions. The Court acknowledges the argument made on behalf of Randall, but in the first instance, whether a conflict of interest exists is for Ms. Geldenhuys to decide. There is no motion pending before this court to disqualify counsel for a conflict of interest, so the court is not addressing that issue in this decision. The Court does note that as presented in the papers currently before it, the idea of a conflict is speculative at best, and "[d]isqualification on the ground of a conflict should not be granted where it is speculative." Twin Sec., Inc. v Advocate & Lichtenstein, LLP, 97 AD3d 500, 501 (1st Dept 2012).

The Court will allow the following objections asserted by Randall H. to proceed to a fact finding:

- Breach of fiduciary duty claim against Person Guardian regarding self-dealing in hiring All Q Care to provide direct care services to Melva H.; related claim against Person Guardian regarding Melva Hedge's level of care

- Claims regarding legal fees paid during Melva H.'s lifetime for which the guardians did not have prior court authorization. The Court notes that decisions on legal fees rest on a determination of the necessity and reasonableness of the fees, and fees will not be disallowed solely for failure to timely secure the Court's consent.

- Claims regarding removal of unaccounted for personal property from Melva H.'s home.

This decision constitutes the order of this Court.

Now, therefore, it is hereby

ORDERED, that the objections filed by Randall H. on January 9, 2025 and March 6, 2025 pertaining to Randall H.'s alleged lack of visitation and contact with Melva H., the Property Guardian's visitation with Melva H., the Property Guardian's payment of expenses for care of Melva H., and alleged emotional or psychological damage suffered by Randall H. as a result of the actions of either guardian in this matter are DISMISSED WITH PREJUDICE; and it is further

ORDERED, that the parties are directed to serve any discovery demands by October 31, 2025; and it is further

ORDERED, that the court shall hold a conference to schedule any remaining discovery and the hearing on the remaining open objections in accordance with this decision via Microsoft Teams on November 7, 2025 at 10:00 a.m.