MHL ARTICLE 81 - New York State Unified Court System

F. Breach of fiduciary duty/removal/sanctions
Matter of Albert K. (D’Angelo), 96 AD3d 750; 946 NYS2d 186 (2nd Dept. 2012)
The Appellate Division affirmed the trial court’s decision to: (a) impose a surcharge against the
guardian, (b) deny the guardian’s commission and attorney fees, and (c) direct the Guardian to
personally pay the Court Examiner’s fee at an amount in excess if the statutory guidelines set forth
in 22 NYCRR 806.17(c) but reversed the trial’s court decision to deny the Public Administrator’s
application for the guardian to also pay 9% interest on the sums surcharged. The “covert self
dealing” engaged in by this guardian included: the guardian appointing and paying his own wife to
serve as the geriatric care manager, that care manager continuing to provide and manage home health
aides while the IP was in a nursing home without prior court approval, preparing a Will for the IP
naming himself as executor, which will was witnessed by his own wife and mother, and bequeathing
the IPs entire $3 million estate to a trust for which he would serve as trustee. The court also held that
the Court Examiner's fees in excess of the statutory guideline schedule was justified by the
“extraordinary circumstance” of the covert nature of the guardians’s self dealing.
In the Matter of Carl R., 93 A.D.3d 728; 939 N.Y.S.2d 879 (2nd Dept 2012)
In a proceeding pursuant to Mental Hygiene Law 81.33 for a final accounting, the trial court directed
that the guardian/trustee be surcharged for certain payments made from the ward’s assets and ordered
that the guardian/trustee pay the court examiner’s fees. The Appellate Division affirmed the
surcharge of the Guardian for expenditures of guardianship funds used to pay for certain
construction work at the home owned by the Guardian's wife which was being rented to the IP, as,
inter alia, the Guardian failed to prove that these expenditures were for previously approved work
at the house, and failed to sufficiently substantiate the expenditures with documentary evidence.
However the Appellate Division reversed the trial court’ order that the Guardian personally pay the
fees of the court examiner, holding that while a court may deny or reduce compensation which would
otherwise be allowed when a guardian fails to discharge his duties satisfactorily (citing MHL §
81.28[b];§ 81.32[d][2]), there is no provision permitting the court to require a guardian to personally
pay court examiner fees (cf. Mental Hygiene Law § 81.32[f], 81.33[e]).
nd
Matter of Gilvary, 93AD3d 148; 938 NYS2d 589(2 Dept., 2012)
Appellate Division, inter alia, censured the interim guardian, an attorney, for professional
misconduct due to his issuance of several checks to himself and to his ward’s caretaker (by signing
the former guardian’s name thereto) from the guardianship account, to which, due to his inability to
obtain a bond, the bank did not grant him access.
nd
Matter of Carmen H., 90 A.D.3d 1049; 935 N.Y.S. 2d 516 2011 N.Y. App. Div. LEXIS 9554 (2
Dept. 2011)
The Appellate Division upheld the Supreme Court’s declination to remove the guardian based solely
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