MARCH 30, 1998 VOLUME 5, NUMBER 39
In last week's Elder Law Issues, we described the Wisconsin case of Evelyn O. In that case, a community agency sought the appointment of a guardian for two women, Evelyn O. and Thyra K. Even though the guardianship petitions were successful, the Wisconsin Court of Appeals ruled that the agency could not force the women's estates to pay the cost of the guardianship proceedings.
Margaret Rennhack, a New York woman, faced the opposite problem. Ms. Rennhack's legal problems actually began, however, with her brother's death.
Ms. Rennhack and her late brother owned several rental properties together. Before his death, a nephew had been appointed as conservator for the brother and had handled the rentals. After her brother's death, Ms. Rennhack sought appointment as his executor in the New York courts so that she could take over the management of the properties.
[Ed. note--In New York the person who is appointed to handle financial affairs of another is a "guardian of the estate." We have used the more familiar term "conservator" here to avoid confusion.]
Ms. Rennhack's sister objected to her appointment as executor of their brother's estate. Her son (the same nephew who had handled Ms. Rennhack's brother's property as conservator) filed a conservatorship proceeding against Ms. Rennhack herself.
The nephew, Steven Naimoli, and his mother alleged that Ms. Rennhack had a "long-standing history of mental illness." Mr. Naimoli also argued that Ms. Rennhack was under the influence of a neighbor, who was directing her financial arrangements. An evaluator was appointed by the court to determine whether Ms. Rennhack really needed a conservator.
Mr. Naimoli first sought the removal of Ms. Rennhack's attorney by arguing that the attorney would be a witness to Ms. Rennhack's alleged inability to handle her financial affairs. Before a hearing could be held on that request, the court-appointed evaluator reported his findings and recommended that no conservator be appointed.
Mr. Naimoli then moved to dismiss his own petition. The judge agreed to the dismissal, but not until he ordered Mr. Naimoli to pay Ms. Rennhack's legal fees and the fees of the court-appointed evaluator. Those fees amounted to nearly $8,000.
A key element in the judge's order was his finding that Mr. Naimoli had not acted in good faith when he brought the conservatorship proceeding against his aunt. Ms. Rennhack had signed documents to eliminate her neighbor's influence over her finances, and her nephew said that the conservatorship was no longer needed. But, said the judge, if Mr. Naimoli had really believed that his aunt was incompetent, he would not have relied on the documents she signed to resolve the problem.
The real reason for Mr. Naimoli's conservatorship filing, according to the judge, was "a power struggle over control of his late uncle's estate, coupled with his distrust of Mrs. Rennhack's long-standing friend, and he was ill-advised" to have filed the proceeding. As a consequence, Mr. Naimoli was ordered to pay Ms. Rennhack's fees for the lawyer she was "required to engage in defending the actions of her overly aggressive nephew." Matter of Rennhack, Nassau County, New York, Supreme Court, December 29, 1997.
Taken together, these two cases illustrate some of the financial problems which can make filing a conservatorship petition difficult. Last week's Wisconsin case established that a successful petitioner might not be able to recover legal fees. The Rennhack case demonstrates that an unsuccessful petitioner might have to pay not only his own legal fees, but also the fees incurred by the person he intended to protect.