I am the caregiver for both my parents. I have the POA and healthcare proxy. I have been managing their finances and while caring for them for over 20 years. My sister filed a motion for guardianship claiming that I have been "mismanaged" their funds because my dad is “incapacitated" (AIG) and claimed that I have been misappropriating his finances to my own advantage. She made all kinds of nasty accusations against me that went on for pages. She asked that the court cede all his assets to her and her husband's name, including the building my parents live in so she can sell it and keep the money. The motion also said that she will put him on Medicaid and Welfare and that she will eventually put my dad and my mother in a “Medicaid” appropriate nursing home. It just so happens that the building is owned by me as a life estate. Initially, all the layer and the court evaluator saw all this as nothing more than a money grab.
On the day of the hearing, it was agreed that she will drop the motion but I would have to provide a full disclosure of his finances and a cash flow report for the past two years and subsequent reports to her and her greedy husband every six months. I did not have a problem with that because I had nothing to hide. However, my dad must pay for the legal fees of not only the court appointed attorney (who did nothing), but my sister's lawyer, and the court evaluator lawyer. I hired my own lawyer to represent me. My lawyer said that this was the "law in NY" that the AIG is responsible to pay all legal fees. Is this true? When I took issue with this, he basically said that the court evaluator did not like my attitude wanted to change his recommendation to the judge to have a 3rd party guardian be appointed. This is the same guy who already wrote a report that my did had no need for a guardian at all. Why should an elderly man of 91 be responsible to pay the legal fees for some frivolous law suit? I there such a stipulation on the NY books? I feel that my dad has been taken advantage of.
I can't speak to whether the assessment of fees is as you stated as I'm not familiar with NY law, but if that's the case, your attorney can quote you the statute or e-mail a link so you can read it for yourself. You can also ask him about case law interpretations, if there are any.
If it is statutorily prescribed, it might not be included in the Order but if this is just an assessment for that particular hearing, it should be in the Order.
That certainly doesn't seem fair to your father to have to pay your sister's legal fees. It's really quite punitive.
Also, going forward, I would refrain from any phone or other conversations with your sister and communicate only by written means that can be documented. If she was nasty and greedy enough to try to confiscate your parents' assets, who knows what she's capable of?
NY probably has full electronic filing so that you wouldn't be filing paper copies of reports. Make sure yo copy her via e-mail when you file the reports, receipt requested. You could double protect yourself by sending them in hard copy by certified mail so she can't claim she never received them.
It's unfortunate that this was such a negative experience for you and your parents.
It wouldn't hurt to meet with your estate planning and/or elder law attorney to discuss this situation and explore what other options she might have. I have a feeling she's not through yet.
Also, if there's any way you can determine what her financial situation is, it would give you ammunition if she tries something like this again. It sounds as if she may have some large bills and needs cash quickly and your parents' assets are part of her plan.
I understand your vexation with your sister. You've been doing all the work, for decades, and she comes along and cheerfully chucks in a spanner. She is a pain.
But unless my grasp of the sequence of events is faulty, essentially your father's lawyer has negotiated a pact to make her go away. And since her frivolous action has also attracted the attention of professionals who - I'm trying to phrase this neutrally - are fond of taking control because it makes their lives both easier and richer (and by the bye does protect the interests of the vulnerable) - it sounds as if the lawyer was trying to get both your parents and you out of trouble by the cleanest and quickest route available. He may have sacrificed a little justice, and goodness knows how much cash, for expediency. Even if he did, I'm not sure he wasn't right to.
I'm not sure how greedy your sister is being. If only Lionel Shriver were here to describe this, she'd make such a fine job of it: perhaps it's not so much that sister wants to get her hands on the assets so much as that she would rather see them vanish than let you "unfairly" - as it "It's Not Faaaaaaaair…" - benefit from them. All of that suspicion (I imagine her poring over her precious spreadsheets and squealing with triumph if you've misplaced a postage stamp); all of that envy ("where's MY apartment building waaaaaaahhh…"); all of that resentment that she isn't the trusted, responsible daughter - presumably that's why she drew up her detailed, er, "care" plan, to show how solemnly she was taking the whole business. Would that fit? Is she, do you think, plain, deeply jealous?
Back to the fees. It may seem unfair, but I suspect it might have been money well spent. Hope the agreement lasts.
It doesn't look as if the COURT saw the lawsuit as frivolous. You've been ordered to provide them two years of financial records and a report every six months.
In court it's like seeing a minnow battle a great white shark. Sounds like this was the situation when the hearing was held on your sister's petition.
It's unfortunate that your father's court appointed attorney wasn't a good one. The only recourse I can think of is to file a complaint with the NY State Bar, but I don't know if that will get you any satisfaction in terms of financial redress. But it might make that attorney sit up and take notice that his performance wasn't acceptable.
Some attorneys also handle so many cases, especially in litigation, that there's just not the personal interest that there is on the part of someone who works with a client. E.g., attorneys who represent an insurance company and do defense work have a stronger relationship with the insurance company than with the defendant.
I think that for your father's court appointed attorney, who didn't even have a strategy, that he was probably unfamiliar with the type of issues involved, perhaps inexperienced, and perhaps not very motivated. It's unfortunate that your father got stuck with him.
What he should have done was ask for an adjournment to acquaint himself with the issues, but in law it's assumed that he could do so fairly quickly. And actually the judge could have adjourned the case him/herself and probably should have to be fair to your father.
I don't know whether judges in that particular court are elected. Sometimes the most effective front running candidates are not good judicial candidates. Maybe this judge was one of those.
1. What occurred in court - is it truly the law that my father has to pay for this? Can we fight against it? What is the consequences if we do? What is the worst case scenario?
2. What can I do to safeguard my father from sis' further actions? Do I need something else legally to protect him?
It may cost money but it would be so worth it.
I like the idea of doing both - email and send by post the financial documents. When you mail document, send it by registered mail. Keep all receipts and documents. When you email to sis, also 'cc' a copy back to yourself. When you receive the email from yourself, put it in a file just for FINANCIAL.
Don't give your sister any more ammo. When you must deal with her, keep it formal. Don't give any extra info that she doesn't need to know - only those regarding your father.
I fully agree that it would be very wise to consult an attorney about ways to protect your father from further interference.