MHL ARTICLE 81 - New York State Unified Court System

although the bringing of the petition was probably in the AIPs best interest, (1) the petitioner's
application to be selected as guardian had been denied due his self-dealing behavior and theft of her
property; (2) the attorney should have disqualified himself from representing the petitioner due to
a conflict of interest since he previously represented the AIP when he prepared her Will and the
Power of Attorney giving petitioner control of her finances and (3) although having established an
attorney-client, confidential relationship with the AIP and even having met with her and having been
notified that she believed the petitioner was stealing from her, he undertook to represent petitioner
in a proceeding adverse to the AIP to declare her incompetent and nullify her revocation of the power
of attorney that he prepared.
nd
Hobson -Williams v. Jackson , 10 Misc.3d 58; 809 N.Y.S.2d 771 (App. Term 2 Dept., 2005)
After an unfavorable court award from the assets of the ward, counsel for the petitioner successfully
brought suit against her own client for the balance of her fee. Court holds that attorney fee awards
from the AIP’s estate are within the discretion of the court and the AIP’s estate is not the exclusive
source for such fees. See also, “Hobson -Williams: Fee disputes with Guardianship case clients”,
NYLJ Dec 16, 2005, by Daniel Fish warning Elder Law attorneys to clarify this possible outcome
from the inception of the attorney-client relationship with a petitioner-client.
nd
Matter of Albert S., 268 A.D.2d 684; 730 N.Y.S.2d 128 (2 Dept., 2001)
Where AIP had living will, durable Power of Attorney, and where trust fund was being established
for his benefit, Appellate Division directed petitioner to pay fees of the court evaluator and counsel
for AIP for petitioning for unnecessary guardianship.
Matter of Shapiro, 2001 NY Misc. LEXIS 1359; 225 NYLJ 75 (Sup. Ct., Nassau Cty.)(Rosetti,
J.)
Court denied payment of counsel fees to counsel for party whose action created need for the
litigation and whose work, although capable and vigorous, did not result in benefit to AIP.
Matter of De Santis, 186 Misc.2d 791; 720 N.Y.S.2d 757 (Sup. Ct., Nassau Cty., 2000)
Court has power to review reasonableness of petitioner's attorney's fees where petitioner complains
they are excessive, even where attorney will be paid by petitioner and not from the AIPs funds.
In re: DOE, 181 Misc.2d 787; 696 N.Y.S.2d 384 (Sup. Ct., Nassau Cty., 1999)
Court orders fees for AIP’s court appointed counsel to be paid by petitioner-also find fees for
“vigorous representation” of AIP by court appointed counsel was appropriate, especially where
counsel for AIP and court alerted petitioner to deficiencies in his case.
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