MHL ARTICLE 81 - New York State Unified Court System

d
Matter of Grace “PP”, 245 A.D.2d 824; 666 N.Y.S.2d 793 (3 Dept., 1997), lv. to app. denied,
92 N.Y.2.d 807; 678 N.Y.S.2d 593 (1998)
§81.10(f) requires that court determine reasonable compensation for attorney appointed to represent
AIP, and provides "[t]he person alleged to be incapacitated shall be liable for such compensation
unless the court is satisfied that the person is indigent." Fact that AIP receives Medicaid is not
dispositive of indigence.
Matter of Epstein (Epstein), 168 Misc.2d 705; 649 N.Y.S.2d 1013 (Sup. Ct., Suffolk Cty., 1996)
Article 81 does not provide means of payment of counsel for AIP where AIP is indigent. Moreover,
there is no provision for payment of fees for counsel for guardian other than from assets of IP.
Application by petitioner to have State pay fee of her attorney is denied, and court-appointed counsel
for the AIP denied right to seek payment of fees from guardianship estate absent showing that IP is
not indigent and has sufficient funds to pay fees.
nd
Matter of Susan P. a/k/a Susan O. (Schwartz) 243 A.D.2d 568; 663 N.Y.S.2d 115 (2 Dept.,
1997)
AIP was ordered to pay all fees since it was his lack of cooperation in a pending matrimonial
proceeding that gave rise to the need for the guardianship proceeding.
(ii) Petitioner
Matter of Samuel S. (Anonymous), 96 AD3d 954; 947 N.Y.S. 2d 144 (2nd Dept. 2012)
The Appellate Division held that Supreme Court properly exercised its discretion in directing
petitioner to personally to pay the Court Evaluator’s fee in its entirety, as petitioner’s motives in
commencing the guardianship proceeding were questionable, given his knowledge of the existence
of advance directives and the lack of any evidence that the AIP had suffered any manner of harm or
loss, circumstances that were confirmed by the Court Evaluator.
nd
Matter of Marjorie T., 84 A.D.3d 1255; 923 N.Y.S.2d 870 (2 Dept., 2011)
Appellate Division reversed an Order of the Supreme Court which had directed the petitioner to pay
the AIP’s legal fees, due to the lack of evidence that the proceeding, which was ultimately withdrawn
by the petitioner, had been brought in bad faith.
nd
Matter of Theodore T. v. Charles T., 78 AD3d 955; 912 N.Y.S.2d 72(2 Dept., 2010)
Noting that “[t]he petitioner bears the ultimate burden of establishing that the court has personal
jurisdiction over the respondent,” and that “[t]he method of service provided for in an order to show
cause is jurisdictional in nature and must be strictly complied with,” the Appellate Division affirmed
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