MHL ARTICLE 81 - New York State Unified Court System

. To whom fees paid
(i) Retained counsel
nd
Matter of Theodore T., 83 AD3d 852; 920 N.Y.S.2d 688 (2 Dept., 2011)
Appellate Division reversed an order of the Supreme Court, granted the guardian’s motion seeking
reimbursement for attorney’s fees he incurred on behalf of his ward., and remitted the matter for a
hearing setting the amount of such fees, noting that the Supreme Court had erred in summarily
denying the guardian’s request based solely upon his failure to seek prior court approval for the
expenditure.
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
practice for 6 months and ordered to make restitution for overcharging his client who was obviously
suffering from dementia. Many services he performed were billed at a rate for legal services which
were in fact not legal services and only non legal tasks incident to the legal services he provided or
billed for excessive amounts of time given the task at hand.
In the Matter of Enna D., 30 A.D.3d 518; 816 N.Y.S.2d 368(2nd Dept., 2006)
Following the death of the AIP, the guardianship proceeding abated. Thereafter, Supreme Court
lacked the authority to award an attorney's fee to the attorney retained by the petitioner, as §81.10[f],
§81.16[f] do not authorize such an award, following the death of the AIP to attorneys other than
those appointed by the court.
Matter of John Peterkin, 2 Misc. 3d 1011A ;2004 NY Slip Op 50284U(Sup. Ct., NY Cty.,
2004) (Visitation-Lewis, J.)
AIP’s daughter held a POA. Her brother petitioned under Article 81 to vacate the POA and be
appointed as guardian alleging among other things that the daughter was not caring for the father and
was stealing from him. The court finds that the petitioner had not met his burden of proof, that his
petition had been brought in bad faith and that he had alleged false and misleading claims. The
daughter retained private counsel to represent her for legal fees incurred in defending against the
petition. Since MHL §81.10(f) does not apply to retained counsel but only to appointed counsel, she
petitioned instead under 22 NYCRR 130-1.1 alleging frivolous litigation and the court directed that
her counsel fees be paid by petitioner. She also moved, successfully under MHL §81.08(f) for
petitioner to pay the Court Evaluator’s fees.
Matter of H.E.M, NYLJ, 8/16/02 (story only) 1091961/01 (Sup. Ct., Kings Cty.)(Leventhal. J.)
Fees for retained counsel for self petitioner in guardianship are reviewable by the court even though
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