MHL ARTICLE 81 - New York State Unified Court System

Matter of Nicks, NYLJ, 1/29/98, p. 25, col. 1, p. 32, col. 6 (Sup. Ct., Nassau Cty.) (Rossetti, J.)
TOUCH INC., a not-for-profit corporation that assists disabled indigent persons, was appointed
guardian. It failed to file its reports on time and to cooperate with the ward's residence in pursuing
Medicaid. After the residence and court examiner sought to remove it as guardian, TOUCH
resigned. It sought an order settling its final account. Court denied compensation to the company
and surcharged it to partly reimburse the examiner for services required by the guardian's omissions.
Matter of Bomba, 180 Misc.2d 977; 694 N.Y.S.2d 567 (Sup. Ct., Queens Cty., 1990)
Court examiner was assigned to review guardian's reports. Court examiner submitted order
requesting hearing to determine whether guardian should be removed. Court examiner questioned
whether guardian had properly reimbursed herself, without court order, for disbursements for
photocopying, fax transmissions, local travel expenses, United Clerical Service, and telephone
charges. Court found that evidence of misconduct did not rise to level necessary to warrant
guardian's removal. However, disbursements for which guardian reimbursed herself were
disallowed. Reimbursements questioned were characterized by court as routine, incidental costs
incurred by guardian, which were expected to be absorbed in guardian's statutory commission. Court
noted that statutory references to "reasonable and necessary expenses" had not been construed to
encompass general administrative fees incurred by guardian, but rather pertained to actual
expenditures made by guardian, which were necessary to collect, preserve, and distribute estate
property.
Matter of Haberstich (Lya Sher), 169 Misc.2d 543; 646 N.Y.S.2d 937 (Surr. Ct., NY Cty., 1996)
Compensation must be determined case by case, based upon responsibilities of guardian, nature and
extent of assets and anticipated duration of guardianship. Where guardian must marshal assets and
make investments that can be readily liquidated for period that is expected to be short in duration,
such fiduciary is acting more like personal representative and compensation plan should reflect this.
Where guardianship is expected to last a long time and holds substantial assets, guardian's duties
more resemble those of trustee because of increased degree of sophistication required to develop an
investment strategy and concomitant exposure. Under such circumstances, guardian should be
compensated like trustee for responsibility for long-term ongoing property management and
distribution to ward. However, court is not limited to choosing either rate fixed for trustees or that
fixed for executors or administrators. §81.28 permits court in its discretion to devise any
compensation plan it deems reasonable after considering whether guardian's duties more resemble
those of a trustee or of an executor.
Matter of Daisy Pope, NYLJ, 1/12/99, p. 25, col. 3 (Sup. Ct., NY Cty.)
Court examiner was assigned to review guardian’s reports. Court examiner submitted order
requesting hearing to determine whether guardian should not removed. Court examiner questioned
whether guardian had properly reimbursed herself, without court order, for disbursements for
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