MHL ARTICLE 81 - New York State Unified Court System

lawfully be required to serve without compensation was the DSS itself pursuant to 18 NYCRR
457.1(d)(9), (10)(ii). The court ultimately did relieve FCA, but, instead of appointing DSS, without
explanation, appointed an independent private attorney. There was no provision made for payment
of fees to the Successor Guardian.
Matter of Family and Children’s Association, 15 Misc. 3d 1129A; N.Y.L.J. 26, (Col. 1) (May
11, 2007) (Sup. Ct. Nassau Cty.)(Diamond, J.)
Court upheld the claim of the Department of Social Services that an order directing that the guardian
be paid $250/mo from the IP’s Social Security check, which amount was to be counted against the
NAMI, was a violation of 11 NYCRR 360-4.6..2002.
Matter of Stratton (Heinrich), 2001 N.Y. Misc. LEXIS 1348; 225 N.Y.L.J 119 (Sup. Ct., NY
Cty. 2001)(L. Miller, J.)
The court denied the guardian’s application for her fees to be paid on an hourly basis where the order
appointing her recited that her fees were to be paid according to SCPA 2309 and her efforts on behalf
of the IP appeared to the court to be "overly zealous" and duplicative of the services provided by the
staff of the assisted living facility into which she had placed him. The court emphasized that her role
as guardian was to oversee that the staff at the assisted living facility was meeting her ward’s needs
but not to actually provide the services.
Matter of Newbold, 2007 NY Misc LEXIS 389; 237 N.Y.L.J. 28(Sup. Ct., Queens Cty.)
(Thomas, J.)
Where guardian’s request for compensation equaled one third of the IP’s total assets, the Court
reduced the fee. The court stated that it was required to consider the following factors: (a) the time
and labor required, the difficulty of the questions involved, and the skill required to handle the
problem presented; (b) the attorneys’s experience, ability and reputation, (c) the amount involved
and the benefit flowing to the ward as a result of the attorneys services, (d) the fees awarded in
similar cases; (e) the contingency or certainly of compensation, (f) the results obtained ; and (g) the
responsibility involved. In its analysis, the court identified 4 categories of compensable activities by
the guardian: (1) Simple duties (opening the guardianship account, inventorying the assets, filing the
commission and bond, filing the initial accounting) to be compensated pursuant to the formula set
by SCPA 2307; (2) Duties which, although not unusually difficult or requiring extraordinary skill,
consumed an unusual or inordinate amount of time and provides a benefit to the IP (in this case
procuring the IP’s lapsed pension and securing her health insurance) to be compensated at the rate
set by County Law Sec. 722 (b); (3) Duties which require unique experiences or skills either in a
legally or financially complicated matter or in an acrimonious matter where the guardians is met with
continued resistance, to be compensated with fee awards commensurate with counsel for the parties
in the action; and (4) matters which are actual legal services or accounting services, also to be
compensated with fee awards commensurate with counsel for the parties in the action.
146