MHL ARTICLE 81 - New York State Unified Court System

Matter of E.H., 13 Misc.3d 1233A; 831 N.Y.S.2d 352 (Sup. Ct., Bronx Cty., 2006)(Hunter, J.)
Court orders that Integral Guardianship Services, a not-for profit social service agency, be
compensated in the amount of $ 450.00 per month, to be deducted from the IP’s $600/mo. Social
Security benefits and held that such sum be deemed excluded from available income for the purpose
of the Medicaid calculation of net available monthly income ("NAMI"), because such expenditure
was necessary to insure the medical and physical well-being of the IP.
Matter of William J.J., 32 A.D.3d 517; 820 N.Y.S. 2d 318 (2nd Dept 2006)
In the 9th Judicial District, one judge sits in the Guardianship Accounting Part ("GAP") to review
and confirm the reports of the Court Examiners in all of the counties of the 9th District. When
confirming the Court Examiner’s report the instant case, the GAP judge, in two orders, also: (1)
added the requirement that the guardian be required to file a bond even though the appointing judge
who issued the Order and Judgment had dispensed with a bond; (2) deleted the provision of the
Order and Judgment providing that the guardian could draw an annual salary as compensation from
the assets of the IP and added that the guardian was required to obtain prior court approval before
taking a Commission, and, (3) curtailed the power granted in the Order and Judgment that allowed
the guardian to retain professional services of attorneys and accountants etc. with the IP’s funds
without prior court approval. The Appellate Division held that the GAP judge had exceeded his
authority under MHL §81.32 to alter the guardian’s compensation because such compensation can
only be altered if the guardian had violated MHL 81.32(c); that the GAP judge exceeded his
authority when he modified the guardian’s powers to pay the professional fees without prior court
approval because that power was reserved to the appointing judge, and even the appointing court
could not act sua sponte, but only upon application of the guardian, the IP or any other person
entitled to commence a proceeding and only then upon notice and hearing; and that the GAP judge
has also erred in directing the filing of the bond in the absence of such provisions in the original
Order and Judgement.
In re Guardianship (Formerly Committee) for the benefit of W.J., 9 Misc. 3d 657; 802
N.Y.S.2d 897 (Sup.Ct., Rensselaer County, 2005) (Ceresia, J.)
A corporate committee was appointed in 1961 for a ward who was receiving VA benefits. In 2005,
it moved to be compensated under MHL Art 81 claiming that the work it was doing was in the nature
of trustee work and that it should therefore be compensated under SCPA 2309, as set forth in Art
81. The VA and counsel for the ward opposed, claiming that the fiduciary appointment was made
pursuant to MHL Art 79 governing veterans and not Art 78 which was repealed in 1992 when Art
81 was enacted in its place. The corporate committee argues in the alternative that if it is to be
compensated under Art 79, that it be compensated for “extraordinary services”. The court finds that:
(1) under the 2004 amendments, Art 81 no longer makes reference to SCPA 2809 as a method for
calculating guardians’ compensation and that each compensation determination is based upon the
specific facts of each case; (2) that the original proceeding was commenced by the VA and under
the Civil Practice Act and that CPA §§ 1384-k which governed compensation at that time is now
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