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HomeMy WebLinkAbout98-06233 .' ,._/1 , ' . No. tff.k)J.] Civil Term . , 'J J. Iff ,I. . , ' .,' I ~ '. ~~ :' , . " , "'... .' ~.-tPA VS. Uh(l 9' ~? court of Common Pleas Cumbo Co. " ;:',' .~ , i . , ' } 1 I I I I ~ ~..' \ . 'C",' '. ',(Y ~- '~: ,,-. " r, . ,,, ~ I i' ) l ..,.;,; . , ' ,. r;. ;', ) .A '~'\:":. .1 ~ ;, ?,.t::' , : , r f >' ,,,, I:;. -'0:, IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA. OFFICE OF INSPECTOR GENERAL. Plaintin: N I-v:. (_ l:'-'-J I' 0, __L.L..J~-'-!__~,L-'-~\"LC 01'1 v, Civil Action n Law VERA J. EGOLF. Dcrcndant. COMMONWEALTH'S PRAECIPE TO ENTER JUDGMENT PURSUANT TO Pa. R. Civ. P. 227.4 TO THE PROTIIONOTARY: PI case cntcr judgmcnt in filvor ofthc Commonwcalth or Pcnnsylvania and against Vera J. Egolrin thc amount of$85.942,78. plus intcrcst and costs. according to thc Orphans' Court Ordcr datcd Novcmbcr 15. 1996. Stcphen B. Lipson, Esquirc (Attorney for Vera j, Egolf) 169 West High Street, Suite 4 Carlisle, Pennsylvania 17013 ~~~.L Jason J. Huh, L qUlr Commonwealth of Pennsylvania Attorney 1.0. No. 65445 Officc of Inspector Gcneral 333 Market Strect. 91h Floor Harrisburg. PCI1I1sylvania 17126-0333 (717) 787-6835 Date: November 2, 1998 I l I.. ~ . " .., - \ ,_. ". ' .' ~4o ",', . . '...', . ".. . _, .-,: ,." , , IN THE MATTER OF: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 386 ORPHANS' COURT 1984 GARY LEE KLING IN RE: OBJECTIONS TO ACCOUNTING OPINION HOFFER, J.: Before this Court for disposition are the petitioners' objections to an accounting compiled by Vera J. Egolf, the former guardian of the person and the estate of the late Gary L. Kling. The relevant facts in the instant case may be summarized as fc;>lIows: The petitioners in this case are Wilbur Kling, Wanda Kling (the parents of Gary L. Kling), and the Pennsylvania Department of Public Welfare. Gary L. Kling and Vera J. Egolf were married on August 17, 1980. On April 11, . I i I I , i I 1984, Gary was severely injured in a motorcycle accident, and, as a result of this accident, Gary suffered extensive cerebral trauma, On May 25, 1984, Gary was adjudicated incompetent, and Egolf was appointed guardian of Gary's person and estate. From the time of this accident until Gary's death in June of 1995, his medical condition necessitated costly institutional care, The cost of this care, on I < average, was in excess of $3,100 per month. ., NO. 386 ORPHANS' COURT 1984 Following her appointment as guardian, Egolf, in accordance with the advice provided by her former attorney, executed a Release of Claims against the parties involved in Gary's accident and Northern Assurance Company. Northern Assurance settled the claims for the maximum amount available under its liability coverage for its responsible driver. This amount was $300,000, which was reduced by $1,500, for medical payments previously made by the insurance company on behalf of Gary, This settlement, entered into without court order, violated the provisions of the Pennsylvania Rules of Civil Procedure requiring court approval of settlements involving the interests of incompetents. The record before this Court indicates that at no time did her former attorney advise his client that such court approval was necessary. Egolf also neglected to obtain an order of court specifying what percentage or dollar amount of the settlement represented Gary's share of the proceeds, or what percentage or dollar amount represented her respective share of the proceeds. This unauthorized settlement agreement marks the first of a series of grievous errors in the administration of this estate. In addition to the errors committed with regard to the settlement agreement, Egolf paid attorney fees amounting to $60,000. Egolf also failed to seek or obtain an order of court approving the $60,000 disbursement. On or about June 11, 1984, Egolf entered into a Trust Agreement with Farmer's Trust Company in her 2 NO, 386 ORPHANS' COURT 1984 name alone and deposited therein the sum of $200,000 from the settlement proceeds.1 Egolf never established a separate guardianship account for Gary's estate, and Egolf did not file an inventory of the property of the estate as required by the Probate, Estates, and Fiduciaries Code. In addition to these errors, the record before the Court indicates that shortly after the accident, Egolf began taking monthly support stipends from the Farmer's Trust account. The accountings filed in this case indicate that Farmer's Trust disbursed approximately $112,238.03 from the trust account directly to Egolf. Again, Egolf failed to seek court approval for these spousal support disbursements. Finally, in March of 1989, Egolf petitioned the court for divorce from Gary under section 201 (d) of the divorce code. Wilbur and Wanda Kling were appointed as guardians ad litem in the divorce proceeding. On August 16, 1989, a bifurcated decree in divorce was granted, Subsequent to this decree, Egolf remarried and has one young child of this marriage, In the fall of 1989, Wilbur and Wanda Kling became aware, through divorce counsel, of the distributions that Egolf had made from the trust account to herself. The parties have stipulated that Egolf utilized the $112,238.03 for, among other things, her own care and maintenance, for the down payment on a home, and for lThe remainder of the settlement proceeds were used to pay the outstanding debts and obligations of Gary Kling. 3 NO. 386 ORPHANS' COURT 1984 the purchase of an automobile, On June 5, 1990, Wilbur and Wanda Kling filed a petition to remove Egolf as the guardian of the person and the estate of Gary L. Kling. The Klings alleged that Egolf was wasting and mismanaging the funds of the estate and that Egolf should show cause why she should not be required to reimburse the estate of the guardian the sums which she expended on her own I I k If .. behalf, By order of court dated June 5, 1990, Egolf was removed as guardian, and the Klings were appointed as guardians of the person of Gary Kling, Farmer's , r', Trust Company was appointed as guardian of the estate. On July 11, 1990, Egolf filed a petition seeking compensation for the time that she served as guardian and the cost of preparing an accounting. On July 26, 1990, the Klings 'filed a petition requesting this Court to award attorney fees to the .i , , Klings related to legal representation in the divorce action and in the proceedings related to the instant matter, In response to these various petitions, this Court, by Order and Opinion dated November 8, 1993, affirmed its order removing Egolf as guardian, In I. affirming this decision, we concluded that Egolf had breached her fiduciary duties by: (1) failing to obtain court approval prior to settling the motorcycle accident claim in violation of Pa.R,C,P. 2064; (2) failing to obtain court approval prior to the $60,000 disbursement to her former attorney, in violation of Pa.R,C.P, 2064(b); (3) ~'. 4 NO, 386 ORPHANS' COURT 1984 failing to establish a guardianship account for the settlement proceeds; (4) failing to file an inventory of the property of the incompetent in violation of section 5142 of the Probate, Estates, and Fiduciaries Code; (5) failing to seek court approval for disbursements to herself in violation of section 5536 of the Probate, Estates, and Fiduciaries Code; and (6) remaining in her position as guardian when a conflict of interest arose as to her rights with regard to the settlement proceeds, This Court delayed determination on the issues surrounding reimbursement, compensation of the former guardian, and attorneys' fees to the confirmation of the accounting. On May 4, 1994, Egolf filed a final accounting with this Court detailing the transactions that occurred during her administration of the Gary L. Kling estate. Subsequent to the filing of this accounting, on June 14, 1994, Wilbur and Wanda Kling filed objections to the Accounting and Schedule of Distribution. These Objections allege that Egolf failed to obtain court approval prior to making the following disbursements: A. Former attorney's fees B. Expenses of Gary L, Kling C. Farmer's Trust Co, D. Vera J. Egolf Total Disbursements 60,000.00 223,019.18 6,043.03 112.238,03 401,300.24 The Klings do not dispute the disbursements made to the attorney, the payments toward the expenses of Gary L, Kling, or the distribution to Farmer's Trust 5 NO, 386 ORPHANS' COURT 1984 Company. The Klings do, however, contend that Egolf unlawfully appropriated $112,238.03 and request that this Court surcharge Egolf this amount minus reasonable expenditures made throughout the course of the guardianship amounting to $26,295,25.2 The total amount of reimbursement requested is $85,942,78, In addition to this surcharge, the Klings request that this Court surcharge Egolf the reasonable attorneys' fees incurred by the Klings in the proceedings surrounding the objections to the accounting and in the proceedings involving Egolf's removal as guardian, In response to these demands for reimbursement, Egolf contends that the $300,000 settlement agreement constituted reimbursement for Gary's injuries in the motorcycle accident and for Egolf's loss of consortium claim. Egolf asserts that these two claims merged into one settlement and that the settlement, as a whole, constitutes marital property. Egolf alleges that the orphans' court does not have jurisdiction to determine ownership of the settlement proceeds because these proceeds are marital property subject to distribution in the oivorce proceeding. In addition to the argument that the amount in trust was marital property not 2These reasonable expenditure include all of the monies utilized in 1984, amounting to $4,700.90; monies expended from January 3, 1985 to June 12, 1985, amounting to $18,763.21; payments to the Swaim Health Center in August 1985 and September 1985, totalling $76,54 and $198.53 respectively; and a payment to Harrisburg Healthcare on February 13, 1986, totalling $2,556,07, 6 NO, 386 ORPHANS' COURT 1984 subject to the jurisdiction of the orphans' court, Egolf alleges that the Klings are not entitled to seek reimbursement on behalf of the estate. Egolf maintains that this request by the Klings is improper because: (1) the Klings, as guardians of the person of Gary L. Kling, do not have standing to seek a surcharge on behalf of the estate of the incompetent; (2) the equitable doctrine of laches bars the Klings from seeking reimbursement because compliance with such an order would create substantial hardship for Egolf and her family and; (3) the Klings are estopped from seeking reimbursement because they knew of Egolf's expenditures and did not object to these disbursements, With regard to the merits of the expenditures in question, Egolf alleges that she should not be surcharged because the disbursements from the trust were made in accordance with the advice of her attorney. In addition, Egolf contends that the distributions were reasonable payments of spousal support and requests that this Court approve these expenditures nunc pro tunc. Finally, Egolf asserts that she is entitled to compensation for her efforts as guardian and contends that the Klings are not entitled to attorneys' fees, The Pennsylvania Department of Public Welfare has also filed objections in this case. These objections assert that: (1) Egolf failed to obtain court approval for the following disbursements: 7 NO, 386 ORPHANS' COURT 1984 Former allorney's fees Expenses of Gary L, Kling Farmer's Trust Co, Vera J. Egolf 60,000.00 223,019.18 6,043,99 112,238,03 (2) that Egolf failed to seek court approval for spousal support disbursements; (3) that Egolf had a conflict of interest and violated her fiduciary duties by acting as a guardian and distributing payments to herself; and (4) that Egolf failed to include in her accounting the Medical Assistance Claim filed by the Department of Public Welfare. This Medical Assistance Claim amounted to $55,225.80 as of February 28, 1995, and continued to accrue to Gary's death in June of 1995. On June 8, 1995, the parties filed stipulations with this Court, These stipulations provide that: [i]n the event the Court should rule favorably on the objections filed in the mailer and direct [Egol~ to reimburse the estate, the parties recognize the claim of the. . . Department of Public Welfare. (Stipulations '11 A). The stipulations also indicate that the Department of Public Welfare has agreed to reduce their claim to recognize allor~ey's fees incurred by the Klings. The stipulation agreement further acknowledges that the Klings and Ms, Egolf have incurred attorney's fees. Finally the stipulations indicate that Farmer's Trust has expended the trust principal and any income derived from that principal in the care and maintenance of Gary Kling, leaving no funds remaining. The parties have agreed that the absence of such funding establishes the basis for 8 NO. 386 ORPHANS' COURT 1984 the claim of the Department of Public Welfare, We address the objections to the Accounting and Schedule of Distribution, DISCUSSION !. Surcharae Initially, we address the issues surrounding the request for a surcharge. A surcharge is a penalty imposed upon a fiduciary to compensate an estate for losses caused by the fiduciary's failure to exercise due care in the administration of the estate. 33 Standard Pa. Practice S 158:143 at 449 (1987). A surcharge may be imposed for any loss to the estate caused by the failure to use the common skill and ordinary business caution required of a fiduciary. In Re: Miller's Estate, 345 Pa. 91, 26 A 2d. 320 (1929). A surcharge will not be imposed for a mere error in judgment. Id. As indicated in the Order and Opinion removing Egolf as guardian of the estate, this Court has concluded that Egolf failed to exercise due care in the administration of the Gary L. Kling estate. Although this breach of duty provides an adequate basis for the imposition of a surcharge, Egolf submits that this court should not require her to reimburse the estate. In support of this contention Egolf asserts that: (1) this Court does not have jurisdiction to impose a surcharge; (2) the Klings do not have standing to seek a surcharge; (3) the equitable doctrine of 9 NO. 386 ORPHANS' COURT 1984 laches bars the claim for reimbursement; (4) the Klings are estopped from seeking reimbursement; (5) Egolf's actions were justified because they were carried out pursuant to the advice of her lawyer; and (6) disbursements from the trust to Egolf were reasonable distributions of spousal support, We address these justifications. A. Jurisdiction In making our determination on the issue of jurisdiction, we note the provisions of section 711 of the Probate, Estates, and Fiduciaries Code which state in pertinent part: S 711 Mandatory exercise of Jurisdiction through orphans' court division In general Except as provided in section 712 (relating to the nonmandatory exercise of jurisdiction through the orphans court division) . , . the jurisdiction of the court of common pleas over the following shall be exercised through its orphans court division: . . , (10) Incapacitated persons' estates.-The administration and distribution of the real and personal property of the estates of incapacitated persons, 20 Pa.C,S.A. S 711 (a)(10). In explaining the statutorily enumerated powers listed above, the Pennsylvania Supreme Court has held that the surcharge of a fiduciary is within the exclusive jurisdiction of the orphan's court. Horner v, First Pennsvlvania Banking & Trust Co., 194 A.2d 335, 412 Pa 72 (1963), Because this case involves the surcharge of the guardian of the estate of an 10 NO. 386 ORPHANS' COURT 1984 20 Pa,C.S,A, S 5521 (b) incorporating 20 Pa,C,S.A. S 5142 (emphasis added). We also note the provisions of section 5536 of the Probate, Estates and Fiduciaries Code which state that all income received by a guardian of the estate of an incompetent, . . . in the exercise of reasonable discretion. may be expended in the care and maintenance of the incompetent, without the necessity of court approval. The court, for cause shown and with only such notice as it considers appropriate in the circumstances, may authorize or direct the payment or application of any or all of the income or principal of the estate of an incompetent for the care, maintenance, or education of the incompetent, his spouse, children or those for whom he was making such provision before his incompetency, or for the reasonable funeral expenses of the incompetent's spouse, child, or indigent parent. 20 Pa.C.S.A. S 5536, Examining Egolf's behavior in light of the aforementioned obligations, we conclude that Egolf failed to fulfill her guardianship obligations and that the breach of these duties has created the situation before the Court today. Initially we note that Egolf's own interests in the settlement proceeds did not release her from her primary duty to protect the assets of the incompetent. Additionally we note that Egolf failed to file the three month accounting required by section 5521 of the Probate, Estates, and Fiduciaries Code and failed to seek court approval for her spousal support disbursements. Egolf's compliance with her statutory duties, would have presented this Court with the opportunity to address this issue long 12 NO. 386 ORPHANS' COURT 1984 before these proceedings escalated to their current state of complexity, Egolf, however, attempts to assert that tho divorce proceeding nullifies the jurisdiction of this Court to rectify the situation which arose from her breach of duties. With regard to this argument, we find that Egolf had an obligation to assert her claim to the settlemant proceeds at the time of the three month accounting. Egolf's failure to make such a claim at the appropriate time constitutes, in the opinion of this Court, a waiver of the claim. As Egolf has no claim to the settlement proceeds in question, the distribution of the estate of the incompetent is subject ~o the jurisdiction of this Court. Because we have determined that jurisdiction is properly vested with the orphans court, we address Egolf's next argument. B, Standing Egolf next asserts that the Klings, as guardians of the person of Gary L. Kling, do not have standing to seek a surcharge on behalf of the estate. Again, we disagree. Section 5533 of the Probate, Estates, and Fiduciaries Code provides that the guardian of an incapacitated person's estate must give notice of the filing of the account and its call for confirmation to all Darties in interest. 20 Pa,C.S.A. ~ 5533 incorporating 20 Pa.C.S.A. ~ 3503. Examination of the unambiguous language of 13 NO. 386 ORPHANS' COURT 1984 the statute indicates that the notice provisions of section 5533 extend not only to guardians of the estate, but to the much broader category of ill! parties in interest. In ascertaining the proper parties in interest to this case. we look to section 2103 of the Probate, Estates, and Fiduciaries Code, which permits intestate succession to the parents of a decedent where that decedent dies without a surviving spouse or issue. 20 Pa,C.S,A, 9 2103, Applying these statutory provisions to the case before us, we note that Gary Kling and Vera Egolf were divorced prior to his death and that there were no children of this marriage. In the absence of a surviving spouse or descendants, under section 2103 of the Probate, Estates, and Fiduciaries Code, the entire estate passes to Wilbur and Wanda Kling. As the Klings are entitled to this intestate share. they are parties in interest entitled to notice under section 5533 of the Probate, Estates, and Fiduciaries Code.3 Having established that the Klings are entitled to notice as parties in interest, 31n her brief, Egolf cites several cases in which objections were dismissed for lack of standing, (See Geer's Estate 20 Erie 1397 (1938); Hitchcock's Estate 52 D & C 2d 675 (1971 )), These cases, however, are distinguishable. Both the Geer and Hitchcock cases involved objecting parties who did not have financial interests in the estate of the decedent. In these cases, the courts dismissed the objections based on the finding that the objecting parties lacked standing because they were not parties in interest. Conversely, in the instant case, the Klings are parties in interest because they are the only heirs to the estate of their son, 14 NO. 386 ORPHANS' COURT 1984 It seems counter-Intuitive to conclude that they may not file objections to this account or seek reimbursement. It seems to this Court that such notice would be essentially worthless if it did not carry with it the ability to exercise a remedy. Thus, we conclude that the Klings, as parties in interest in this case, have standing to file objections and to seek reimbursement. C. Laches Egolf also contends that the equitable doctrine of laches bars the Klings from seeking reimbursement because compliance with a court order mandating reimbursement would create a substantial hardship for Egolf and her family. Laches is an equitable doctrine based on the principle that 'equity will not lend its aid to one who has slept upon his rights until the original transaction is obscured by lapse of years and death of parties.' 14 Standard Pa, Practice 9 79.39 at 132 (1983). A party chargeable with laches may be precluded from objecting to the account of a fiduciary. 33 Standard Pa. Practice 9 158,99 at 403 (1987). In order for an equity action to be barred by laches, there must be inexcusable delay by the plaintiff or failure to exercise due diligence, 14 Standard Pa. Practice at 133-34. Additionally, the delay must have resulted in prejudice to the party asserting the defense of laches, Id. at 136. With regard to the first element of the defense of laches, inexcusable delay 15 NO. 386 ORPHANS' COURT 1984 or failure to exercise due diligence, we note that 'laches is the neglect, for unreasonable and unexplained time, under circumstances permitting diligence, to do, what In law, should have to be done.' Id, at 134. Laches applies where there is an unreasonable delay in the plaintiff's assertion of her rights and where the plaintiff offers no explanation for the delay. Id, at 134, Although laches may be found where a plaintiff advances a lack of knowledge as an excuse for the delay, where the plaintiff offers a reasonable explanation, 'in that the relationship of the parties stood in the way of the assertion of the plaintiff's rights and that there was ignorance and lack of information of the relevant circumstances, the delay may be excused.' Jd. at 135. With regard to the prejudice requirement, we note that laches may be found where the defendant's rights are so prejudiced by the length of time that has elapsed that it would be an injustice for the court to permit the plaintiff to assert her claim, In Re Trust Estate of Grote, 390 Pa. 261, 135 A 2d. 383 (1957). Finally, we note that questions as to the existence of laches are factual ones to be determined by the court in light of ail of the circumstances of the case. Siegel v. Engstrom, 427 Pa. 381, 235 A.2d 365 (1967). "In balancing the equities to determine whether a plaintiff's claim is barred by laches, a court sitting in equity may consider whether the defendant has engaged in particularly egregious conduct 16 NO. 386 ORPHANS' COURT 1984 which would change the equities in the plaintiff's favor.' 14 Standard Pa, Practice at 142, Viewing all of the circumstances of this case, we conclude that the Klings' request for reimbursement is not barred by the doctrine of laches, With regard to the inexcusable delay requirement, we conclude that the delay in seeking reimbursement in this case was excusable, The record before the Court indicates that the Klings placed their trust in Egolf, Although the Klings were aware of some of Egolf's expenditures, their misplaced trust in their daughter-in-law prevented them from understanding the true nature of the circumstances. As soon as the Klings became aware, through their involvement in the divorce proceedings, of the gravity of the situation, they took appropriate action in the form of their petition to remove Egolf as guardian. We are, therefore, satisfied that the Klings have sufficiently explained any delay that may have occurred in this case. Assuming arguendo, that the delay in this case was inexcusable, we remain unconvinced that the maintenance of this action for reimbursement would be so prejudicial to the rights of Vera Egolf as to constitute an injustice. In the opinion of this Court, viewing the substantial breach of fiduciary duties in this case, it would be more of an injustice to bar the petition for reimbursement than to permit the Klings to pursue this claim. Finally in balancing the equities in this case. we are 17 NO, 386 ORPHANS' COURT 1984 he cannot claim that the conduct of the other party was the cause of his action, and no estoppel will arise. Where there is no concealment, misrepresentation, or other inequitable conduct by the other party, a person may not properly claim that an estoppel arises in his favor from his own omission or mistake. Estoppel can not be predicated on errors of judgment by the person asking its benefit. Id. at 371, 633 A 2d, at 139-40, (citations omitted.) In light of this standard enumerated by the Pennsylvania Supreme Court, it is evident that Egolf may not successfully assert estoppel as a valid defense to her actions in this case. The misappropriation of funds in this case was the result of a conscious decision on the part of Egolf. She had a duty to protect the assets of her ward, She, instead, invaded and drained his trust account. If Egolf relied on the acquiescence of the Klings in making this decision, she was clearly wrong in doing so. Egolf had an obligation as a fiduciary to comply with her statutory duties, and this obligation required a more active inquiry into the parameters of her functions as a guardian. The Klings did not conceal or misrepresent any of the facts at issue in this case, and the unfortunate truth before us is that Egolf made several serious mistakes in the administration of this estate. As stated above, Egolf may not claim that estoppel arises in her favor from her own omission and breach of duties, Thus, we conclude that the Klings are not estopped from requesting reimbursement in this case. 19 NO, 386 ORPHANS' COURT 1984 E. Defense of Reliance on Counsel's Advice Egolf next claims that she should not be surcharged because her actions in this case were based on the advice of her former attorney. The fact that a fiduciary has acted upon the advice of counsel is a factor that a court should consider in determining whether a fiduciary should be surcharged, In Re Estate of Lohm, 440 Pa. 268, 269 A.2d 451 (1970). Reliance on the advice of counsel, however, does not act as a blanket immunity under all circumstances. Id. In determining whether such reliance will preclude the surcharge of a fiduciary, the court should consider (1) whether the fiduciary's initial choice of counsel was prudent under the circumstances; and (2) whether the decision to rely upon counsel thereafter was reasonably wise and prudent. Id. Applying these factors to the case before us, we conclude that reliance on the advice of counsel is not a defense to Egolf's actions in this case. Although the record before us does not contain information as to the attorney's qualifications, the record is sufficiently developed to merit the conclusion that reliance on his advice, or lack thereof, was unwise and imprudent. Egolf distributed to herself more than one half of the settlement monies placed into the Farmer's Trust account. Taking into consideration the severity of Gary's injuries, common sense dictates that the bulk of the settlement should have funded the care and maintenance of the 20 NO, 386 ORPHANS' COURT 1984 Incompetent. Regardless of the advice rendered, it was unreasonable for Egolf to utilize such a large percentage of the selt/ement proceeds for her own care and maintenance. F. SDousal SUDoort Egolf's further asserts that she was entitled to spousal support from the trust and that the disbursements from the trust constituted spousal support. Egolf, therefore, requests that this Court approve the distributions of spousal support nunc oro tunc. Initially we note that court confirmation of an accounting may constitute ratification of acts of the guardian done without court authorization. 10 Summary of Pa. Jurisprudence ~ 26:69 at 431 (1993). We also note, however, that a fiduciary may be held liable for Improper payments made without the approval of the court. In Re Grcich, 492 Pa. 210, 423 A.2d 347 (1980), cert denied 450 U.S. 997. In determining whether spousal support should be ordered from the estate of an incompetent, the resources of the estate to meet the needs of the incompetent must be balanced against the interests of the dependent. In Re: Estate of Sliaht, 467 Pa. 619, 359 A.2d 773 (1976). Disbursements to the incompetent's dependents should not exhaust the Incompetent's estate, and the court's primary responsibility in considering the merits of such distributions is the capacity of the estate to meet the present and future needs of the incompetent. 21 . 'I '1: NO, 386 ORPHANS' COURT 1984 Ellenberger Estate, 45 D & C 2d 421 (1968), In light of these considerations, we decline to ratify these expenditures as reasonable disbursements of spousal support. The settlement in this case was not a large one, and the institutional care and maintenance of the incompetent were quite costly, As the estate did not contain sufficient resources to meet the medical needs of the incompetent, distributions of spousal support were not warranted. As these distributions were not proper in the past, we will not ratify these disburse- ments at this time. II. Comoensation of the Guardian A surcharge imposed on a fiduciary may be set off against the compensation that the fiduciary would have received. 33 Standard Pa, Practice at 452. In an extreme case, where the fiduciary is guilty of gross negligence in handling the estate, the fiduciary may be deprived of all compensation for her services rendered to the estate. Id. With regard to the definition of gross negligence, the Pennsylvania Superior Court has held that gross negligence is a severe deviation from the standard of ordinary care, Henrv v. First Federal Savings & Loan Assoc., 313 Pa, Super. 128, 459 A.2d 772 (1983). In addressing this issue the Pennsylvania Supreme Court has opined that the term gross negligence does not encompass wanton or reckless behavior, 22 NO, 386 ORPHANS' COURT 1984 It must be understood that wanton misconduct is something different from negligence however gross, .. different not merely in degree but in kind, and evincing a different state of mind on the part of the tortfeasor. Negligence consists of inattention or inadvertence, whereas wantonness exists where the danger to the plaintiff, though realized is so recklessly disregarded that, even though there is no actual intent, there is, atleast, a willingness to inflict injury, a conscious indifference to the perpetuation of the wrong. Kasanovich v, George, 348 Pa, 199, 203, 34 A,2d 523, 525 (1943). Thus, gross negligence may be defined as 'a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity or indifference. Bloom v. DuBois Reaional Medical Center, 409 Pa, Super. 93, 597 A.2d 671 (1991 ). Viewing Egolf's behavior in light of these standards, we are of the opinion that her conduct rises to the level of gross negligence. While Gary Kling required costly institutional care, Egolf invaded his trust account, commingled the funds from this account with her own, and utilized the account proceeds .for such things as the purchase of a new car and a new home. This blatant disregard for the needs of her ward amounts to more than ordinary carelessness, inadvertence or indiffer- ence, Because we have concluded that Egolf was grossly negligent in administer- ing this estate, we find that a commission for Egolf's performance of her duties in this case is not warranted, Accordingly, Egolf's request for compensation is 23 NO. 386 ORPHANS' COURT 1984 denied, III. Attornev's Fees The Klings have requested that this Court award attorney's fees for the legal expenses incurred in these proceedings. With regard to this request, we note that the guardian of an incompetent will not be credited for attorney's fees where the only services rendered by the attorney were services within the scope of the guardian's duty. 10 Summary of Pennsylvania Jurisprudence g26:74 at 435 (1993). Id. With regard to proceedings for the removal of the guardian, we note that litigation surrounding removal must be conducted by the parties at their own expense. Id, The award of attorney's fees is peculiarly within the discretion of the court, and its decision will not be interfered with except for palpable error or abused discretion, i In this case we find that the Kling's legal fees eminated from their obligations as guardians of the person of Gary Kling. Because the services rendered by the Kling's attorney were within the range of duties imposed upon the Klings as guardians, we deny their request for attorney's fees at this time. IV. Conclusion Vera J, Egolf breached her duties as a guardian and wrongfully appropriated $112,238.03 from the trust account of her ward, Pursuant to the 24 0,. f, -- i,,' \ ,. '.,1 '(/ ) (/;V- I , , .....--- , , L-.. ,J , , U C ,. ci L J ~I' U ,\ , , , -'..! \.-1 - -' ,-L -\ --;,"" -, c...... d . +--:..... '..J -r L- Ii' "\- ,- ---../ v'> - r0 G -r C- ~~ ~ f - f/!;; ~t- -H- '-J -- ) cL -' J , , E'-