MHL ARTICLE 81 - New York State Unified Court System

I. Compensation
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Matter of Verna Eggleston v. Jennifer D., 88 A.D. 3d 706; 930 N.Y.S. 2d 608 (2 Dept., 2011)
Noting that the Supreme Court did not explain the basis for its award of a “Legal Fee” to the
temporary guardian, who, although an attorney, was acting as the IP’s guardian, and further noting
that the IP had submitted evidence demonstrating issues of fact as to the propriety of the temporary
guardian’s actions on her behalf and the accuracy of his accountings, the Appellate Division, inter
alia, deleted the provisions of the Supreme Court’s order which awarded the temporary guardian
fees, and remitted the matter back to that court for a hearing to determine what, if any, fees were due
to him.
Matter of Soledad P., Sup. Ct., Bronx Cty, Decided April 28, 2011) (Sherman, J.)
A guardian of an incapacitated person’s property, who was also an attorney, sought the retroactive
approval of “legal fees” that she had paid to herself, without court approval, for the preparation and
filing of annual inventories and accounting on behalf of her ward. In denying the application and
directing the guardian to return the fees, the Supreme Court first reasoned that the Surrogate’s Court
Procedure Act barred lawyer fiduciaries from taking advances on fees without seeking prior
authorization. The court continued that “the preparation and filing of accountings is a routine duty
and obligation of all guardians, of all abilities and educational backgrounds,” for which a guardian
is compensated by her commissions. Though the court stated that if the guardian personally prepared
tax returns for her ward, she could seek additional compensation for this task, which was “beyond
the scope of the routine duties of a guardian,” the court suggested that rate of compensation therefor
should be that of an accountant, which is often significantly lower than that of an attorney.
Estate of Ida Davis, 4/12/11 N.Y.L.J. 33, (col. 4) (Surr Ct., Queens Cty.)(Surr. Kelly)
Citing SCPA § 1804, which allows a fiduciary to retain a reserve to satisfy, inter alia, contingent or
unliquidated claims, Surrogate grants a petition to set aside approximately $10,000 representing
commissions and legal fees for services rendered to the decedent by her Article 81 guardian, to be
paid upon the guardian’s production of an order, issued by the guardianship court, fixing the same.
Matter of Joshua H., 80 AD3d 698; 914 NYS2d 914 (2nd Dept. 2011)
The Appellate Division, Second Department, affirmed a determination of the Supreme Court to
surcharge Grace N., due to her failure to complete her duties as, inter alia, the IP’s guardian, and
trustee of his supplemental needs trust. In so doing, the Court noted that “[i]t is within the discretion
of the Supreme Court to determine what, if any, compensation is due to a fiduciary of an
incapacitated person or an attorney representing such a fiduciary.”
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