Probate, trust, guardianship and inheritance litigation
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New York Court Reverses Order Removing Guardian For Failure To Hold Evidentiary Hearing

In Matter of Roberts v. Maxis, the New York Supreme Court, Appellate Division, First Department unanimously reversed, on the law, an order removing petitioner as co-guardian of his father and remanded the matter for a new removal hearing.

The Facts of In Matter of Roberts v. Maxis

The Court Examiner sought removal of petitioner from continuing to act as the Incapacitated Person’s (IP) guardian of the property and instead be replaced by a non-relative. Petitioner is the IP’s son.

The Court Examiner was critical of some of the actions and decisions by petitioner, particularly, because she claimed that they were made without the benefit of prior court order.  Read When Is Someone Unfit To Serve as a Fiduciary In New York?

Petitioner claimed in part that some of his actions did not require further court order but were permissible under the original order appointing him as guardian. He also claimed that he obtained prior court approval, albeit in the informal manner (i.e. emails or phone calls) employed by the previous judge who was assigned to this matter. He also made credible arguments that the decisions he made benefitted, and did not harm, the IP’s estate.

The New York Supreme Court removed the petitioner as the IP’s guardian of the property and replaced petitioner with a non-relative.

No Evidence Or Findings = No Removal Of Guardian Under New York Law

The appellate division quickly reversed the removal of the guardian of the property.  First, without an evidentiary hearing, the petitioner was deprived of his right to present evidence and the court could not make requisite findings of fact to support removal:

Rather than hold a testimonial hearing, Supreme Court simply accepted what the Court Examiner claimed in her motion. The Court did not make any findings of fact or conclusions of law to justify the removal of petitioner. Nor did it hold that removal of the petitioner was in the best interest of the IP. Petitioner did not have any opportunity to testify under oath, or rebut the allegations made against him, despite his competency as a guardian being directly at issue (see Matter of Gordon [Green], 189 AD3d 408, 409 [1st Dept 2020]). A testimonial hearing in this case is necessary so that the record can be developed, and the disputed issues of fact and law can be resolved.

No Strangers As Guardian Unless Impossible To Find Family Member Qualified To Serve

The second problem with the removal order was that the New York court appointed a stranger as the successor guardian of the property, rather than a family member.  The appellate division stated:

We have long recognized that strangers will not be appointed either a guardian of the person or the property unless it is impossible to find someone within the family circle who is qualified to serve (Matter of Gustafson, 308 AD3d 305, 307 [1st Dept 2003]). The preference for a relative may be overridden by a showing that the guardian-relative has rendered inadequate care to the IP, has an interest adverse to the IP or is otherwise unsuitable to exercise the powers necessary to assist the IP (id.).

Consideration Of a Remedy Less Drastic Than Removal Of the Guardian In New York

Finally, the court indicated that perhaps removal of the guardian of the property was an abuse of discretion, where the guardian’s errors do not prejudice or harm the estate, stating:

The court should also consider whether other less drastic remedies, such as ordering compliance or reducing the guardian’s compensation, would be appropriate. None of these considerations were addressed by Supreme Court before removing petitioner.

The case was remanded for new hearing, because petitioner was deprived of his right to present evidence and for the court to make findings before reaching any conclusion on the Court Examiner’s motion.

The takeaway:  if you are seeking removal of a New York guardian of the property or person, you must have an evidentiary hearing.  Removal of a guardian is a drastic remedy that must be supported by evidence.

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