Background
In a proceeding concerning S.N.C., an alleged incapacitated person, Supreme Court revoked a power of attorney naming attorney Michael Goldman and Tracie Goldman as agents. Michael Goldman later moved to vacate that portion of the order. He contended that because S.N.C. had been competent when she signed the instrument, it remained effective unless one of the agents became incapacitated. Supreme Court rejected that position, and he appealed.
The First Department unanimously affirmed. The record supported findings that the agents breached fiduciary duties by paying themselves from S.N.C.’s accounts on the basis of alleged oral authorization without invoices, charging for legal services when they had provided personal services such as visits, and mismanaging her accounts. Those facts gave the guardianship court a sufficient basis to revoke the authority as a protective measure for the alleged incapacitated person.
The Court’s Holding
The statutory argument failed because Mental Hygiene Law § 81.29(d) expressly permits a court in an Article 81 proceeding to modify or revoke a power of attorney when the statutory conditions are met. Competence at execution did not make the instrument immune from later judicial review of the agents’ conduct. Goldman cited no authority for his contrary rule, which would have prevented intervention unless an agent—not the principal—became incapacitated.
Goldman also failed to satisfy CPLR 5015. He produced no evidence supporting vacatur for fraud, misrepresentation, or other misconduct by the petitioner under subsection (a)(3), and supplied no basis to treat the original order as jurisdictionally void under subsection (a)(4). A motion to vacate requires proof tied to a recognized statutory ground; disagreement with the court’s factual findings or legal authority does not transform the order into one procured by fraud or entered without jurisdiction.
Key Takeaways
- Article 81 permits judicial revocation of a power of attorney despite the principal’s competence when it was executed.
- Self-payment without invoices and billing legal rates for personal services supported findings of fiduciary breach.
- CPLR 5015 vacatur requires evidence of a specified defect, not unsupported claims of misconduct or lack of jurisdiction.
Why It Matters
For agents under New York powers of attorney, the case is a warning about informal compensation and blurred roles. An agent is a fiduciary who must act within granted authority, preserve records, separate the principal’s assets, and be able to substantiate every payment. Lawyers serving as agents should distinguish professional legal work from companionship, errands, and other personal services, use written engagement and compensation terms, send itemized invoices, and avoid relying on unverifiable oral approvals from a vulnerable principal.
Elder-law and guardianship counsel should promptly secure account records, canceled checks, invoices, time entries, and communications when self-payment is suspected. The court’s authority to revoke an existing instrument can coexist with respect for the principal’s competent choice at execution because later misuse presents a separate question. On a vacatur motion, counsel should identify the precise CPLR ground and competent evidence supporting it; conclusory accusations of misconduct or jurisdictional defect will not reopen the order.
The decision should be applied with attention to its procedural posture. A ruling on a motion to dismiss tests whether documents conclusively defeat pleaded facts; summary judgment asks whether admissible proof leaves a material factual dispute; and appellate review of a discretionary or record-based determination is more deferential. Practitioners should therefore use the opinion for the rule it actually decides, preserve the documents the panel found important, and avoid treating an affirmance as resolution of questions the court expressly left for later proceedings. As a practical next step, counsel should compare the governing documents and motion record with the facts of any new matter, identify the elements on which the prevailing party supplied admissible proof, and calendar any statutory or contractual requirements implicated by the holding. Transactional teams should also convert the lesson into a checklist, form revision, or internal control. That discipline is especially important in New York practice, where a clear substantive rule may still produce a different result when the agreement, evidentiary record, preservation history, or requested remedy changes.