On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-380-99.
Before Judges Stern, A. A. Rodríguez and Fall.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal from portions of an "order appointing conservator," entered on February 10, 2000. The order denied the motion of John and Rose Halley for reconsideration of the previous denial of their motion to intervene in this action seeking the appointment, "or [for] any other relief." Appellant John Halley, the nephew of the conservatee,*fn1 William C. Halley, does not appeal from provisions of the same order which, among other things, appoints Patricia A. Bennett, Esq., as conservator of the property of William C. Halley, discharges John G. Hoyle III, the court-appointed attorney for the conservatee, and awards fees to both Hoyle and Bennett. The order also requires Bennett to file periodic accountings and to post a bond in the amount of $650,000.
On this appeal John Halley (hereinafter "John") argues that "the trial court inappropriately excluded [him] from participating in the conservatorship application" and that "the trial court erred by failing to award [him] counsel fees . . ." He contends that the governing statute, N.J.S.A. 3B:13A-1 to -36, does not intend to exclude close relatives from participation in the conservatorship proceedings, and that "[b]y excluding [him] from his uncle's conservatorship application, the lower court discouraged what it ought to have encouraged: participation by loving and concerned family." John asserts:
The trial court erred by refusing to permit [him] to participate in his uncle's conservatorship proceeding. The conservator- ship statute does not prevent him from taking part, and his participation would further the protective goals of the legislation.
We affirm the judgment substantially for the reasons expressed by Judge Clarkson S. Fischer, Jr., in his letter opinion of January 14, 2000 and his oral findings of February 10, 2000. We add the following.
Pursuant to N.J.S.A. 3B:13A-3, Judge Fischer appointed counsel for the conservatee who filed a comprehensive report of findings and recommendations concerning the complaint for appointment of a conservator. The complaint was verified by William C. Halley (hereinafter "Halley"). In preparing his findings and recommendations, the court-appointed attorney, John G. Hoyle III, Esq., interviewed Halley; Patricia A. Bennett, Esq., Halley's attorney in fact and proposed conservator; the "plaintiffs"; Dr. Putnam Brodsky, the conservatee's treating physician for ten years; Robert Obrzut, a social worker from Adult Protective Services; Diane Whalen, "a former health care aide for Mr. Halley" who had filed a complaint with Obrzut's agency because of a concern that "Ms. Bennett and her staff were taking advantage of Halley financially"; and representatives of Fleet Bank and H & R Block. The court-appointed attorney also indicated that he discussed the matter with the attorney for the plaintiffs and reviewed the conservatee's financial records, the records of Adult Protective Services and various other documents. There is no attack, nor reason to suggest a basis for an attack, on the independence of the court-appointed attorney or any relationship he might have with the conservator.
The court-appointed attorney reported that Halley, then ninety-two years old, was in an automobile accident in October 1998, as a result of which he spent "approximately one month in the hospital recovering from some internal injuries." Upon his release, Halley requested Bennett "to act as his attorney-in-fact pursuant to a Power of Attorney he had given her on December 13, 1993." The court-appointed attorney interviewed Halley together with Obrzut who had been investigating the complaint filed by Whalen, the former health care aide for Mr. Halley. In his February 7, 2000 report and recommendation, attorney Hoyle described the following:
Mr. Halley is an engaging gentleman who freely talked about his situation to us. Mr. Halley is a proud veteran of World War II and spoke highly of his six years in the military. Although confused at times, Mr. Halley presented himself as an intelligent man who is content with his present circumstances and fully aware of the limitations brought upon by his advanced age. . . .
Robert Obrzut, LSW, administered the Mini-Mental Status Examination to Mr. Halley, who was able to answer the questions and perform the tasks required without much difficulty.
Mr. Halley expressed concern that he be allowed to spend his money as he sees fit South Carolina, Long Beach Island, Orlando and Daytona, to name a few –- Mr. Halley reported that he really has no desire to go to these places, but that once he is there he has a good time. Mr. Halley stated that he agrees to travel to these destinations with Iris Ippolito and other aides to "make the girls happy because they enjoy the warm weather and they deserve to go since they take good care of me." Mr. Halley added that it is his belief that if he proves to Patricia Bennett and Iris Ippolito that he can travel, without incident, to these destinations, that they will allow him to resume his twice yearly trips to Nova Scotia and Newfoundland. The Court should be aware that throughout our conversation, Mr. Halley repeated[ly] spoke about the good times he has "up North." The Court should be further aware that during the two months that this action has been pending, Mr. Halley returned from a trip to South Carolina and a separate trip to Florida, where he spent some time at Disneyworld and on a cruise. Further, upon information and belief, Iris Ippolito and Patricia Bennett have booked another trip for Mr. Halley to Daytona Beach, Florida, for the end of February . When asked as to who pays for these trips, Mr. Halley reports that he insists that he does.
The court-appointed attorney further reported that Halley "desire[s] to remain at his condominium for the rest of his life with the continued support of the aides" and "that he trusts Patricia Bennett's judgment and wants her to continue to manage his finances and tend to his care." Halley was aware of the amount of his assets and of its management. In addition, according to Mr. Hoyle's report, Dr. Brodsky felt that, although Halley was sometimes "forgetful" and "confused," these symptoms were "normal for a man of his advanced age" and that he "is able to make decisions with respect to all aspects of his life, including his care and housing, but that he requires assistance with managing his financial affairs." According to the report, "Dr. Brodsky opines that Mr. Halley is not mentally incapacitated and is not in need of a Guardian, but that he does require someone to manage his monetary affairs and make arrangements for his care." Dr Brodsky further "reported that he discussed the ...