MHL ARTICLE 81 - New York State Unified Court System

Matter of G. S., 17 Misc. 3d 303;841 N.Y.S.2d 428 (Sup. Ct., New York County, 2007)
(Hunter, J.)
Proceeding was brought by nursing home because AIP’s son and attorney-in-fact had paid only a
portion of the outstanding nursing home bill from the proceeds of the sale of the AIP’s home. The
nursing home’s theory was that the power of attorney should be voided because the son was
breaching his fiduciary duty. The Court held that he had established that he had used his mother’s
funds responsibly and soley for her benefit and stated “The purpose for which this guardianship
proceeding was brought, to wit, for the nursing home to be paid for its care of [the AIP], was not the
legislature’s intended purpose when Article 81 of the MHL was enacted in 1993.” The fees of the
court evaluator and petitioner’s counsel were assessed against the petitioner nursing home.
Matter of Lukia QQ., 27 A.D.3d 1021; 812 N.Y.S.2d 162 (3rd Dept. 2006)
Neither County Law §722-b nor anything in Article 81 requires that counsel to the AIP or the Court
Evaluator be paid at assigned counsel rates under County Law §722-b.
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Matter of Nebrich, 23 A.D.3d 1018; 804 N.Y.S.2d 224 (4 Dept., 2005)
Appellate Division remands case for written decision to explain basis for awarding Court
Evaluator fees in accordance with following factors: (1) the time and labor required, the difficulty
of the questions involved, and the skill required to handle the problems presented, (2) the attorney's
experience, ability, and reputation, (3) the amount involved and the benefit flowing to the ward as
a result of the attorney's services, (4) the fees awarded in similar cases, (5) the contingency or
certainty of compensation, (6) the results obtained, and (7) the responsibility involved.
Matter of W.E., NYLJ, 4/8/05, p. 119 (Sup. Ct. Bronx Cty.) (Hunter, J.)
Where there was no clear and convincing evidence that AIP was incapacitated, and petitioner, AIP’s
husband, admitted on the stand that the reason he filed the petition was to have declared null and
void a waiver that she signed upon receiving compensation for the 9/11 World Trade Center
compensation fund so they could be eligible for more money, court assessed the Court Evaluator’s
compensation against petitioner, even though he withdrew the petition, finding that but for the Court
Evaluator’s investigation and report, petitioner would have successfully perpetrate his fraud against
the court.
Matter of John Peterkin, 2 Misc. 3d 1011A; 784 N.Y.S.2d 923 (Sup. Ct., NY Cty., 2004)
(Visitacion-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
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