MHL ARTICLE 81 - New York State Unified Court System

(ii) Counsel and other fees
a. Responsibility for payment of counsel fees
(i) AIP’s funds
nd
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.
nd
Matter of Deanna W., 76 A.D.3d 1096; 908 N.Y.S.2d 692 (2 Dept., 2010)
The Appellate Division, Second Department, held that the Supreme Court had erred in directing the
Department of Social Services to disregard guardianship expenses when calculating the IP’s net
available monthly income (NAMI) for the purpose of determining Medicaid eligibility, holding that
the agency’s interpretation of its own regulations, including Medicaid eligibility regulations, was
reasonable.
Matter of Kenneth Sherman, 28 Misc.3d 682; 902 N.Y.S.2d 334 (Sup. Ct., Bronx Cty 2010)
(Hunter, J.)
The Court Evaluator, having not been paid for his services, moved to have his fee paid by either the
nursing home where the IP had been a resident or by the community guardian FSSY. Initially, the
court had appointed the IP”s daughter to serve as his guardian and directed that she file a
Commission and post a bond . When she neglected to do so, the court attempted to correspond with
her but she failed to respond ; therefore, the court removed her and appointed FSSY. When the
Court Evaluator was not paid he contacted FSSY and was advised that the IP”s daughter, with
whom the IP shared a joint account, had cleared the funds out of the account upon his death and that
there would not be sufficient funds to pay him. The court found, however, that there had been
sufficient funds in the IP’s account at one point before FSSY paid itself its own commission in full
and therefore ordered FSSY to pay the Court Evaluator from the funds it had collected to pay its own
commission.
Matter of Emanuel A. Towns, an Attorney and Counselor at Law, 75 A.D.3d 93; 901 N.Y.S.2d
68 (2nd Dept. 2010)
An attorney retained by an 89 year old self petitioner on the verge of incapacity was suspended from
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