MHL ARTICLE 81 - New York State Unified Court System

in a proceeding as the guardian for a 14 year old girl where there as $3.5 million involved, where the
parents were financially unsophisticated and also divorced acrimoniously, where they both had a
good relationship with the court evaluator and where the court evaluator was an experience elder law
attorney whose office was near the home of both parents and the child. Of note is that the court did
not identify why he could not find someone other than the court evaluator to appoint under the
circumstances.
Matter of Kurzman (Bilby), 2003 N.Y. Misc. LEXIS 567 (Sup. Ct., Kings Co.)
Court finds compelling reason under 22 NYCRR 36.2 (c)(8) to permit a guardian to being appointed
counsel. Here, the court, upon motion by the guardian, authorized the guardian, who is also an
attorney to act as counsel to the IP to perform a real estate closing that had been ordered by the court.
The court reasons that the purpose of the Part 36 rules is to ensure that appointments are made on
the basis of merit and without favoritism, nepotism, politics or other factors unrelated to the
qualification of the appointment or the requirements of the case. The court finds that the legal work
here is necessary, that the guardian is competent to perform a closing, and that the appointment of
another attorney to represent the IP at the closing would waste the IP’s financial resources because
the new attorney would have to review the work already done by the guardian to get up to speed.
The court adds that the bill for legal services or guardian compensation under §36.4(b)(4)will be
reviewed by the Court and its approval required before payment. The court ultimately concluded that
the avoidance of wasting an IP’s assets constitutes a compelling reason sufficient to allow the
guardian to perform the closing of his ward's real property.
N. Secondary Appointments
(i) Counsel
Matter of Mario Biaggi, Jr., 91790/09, NYLJ, 1202533294290 at *1 ( Sup. Bronx, Decided Nov.
10, 2011 (Hunter, J.)
The guardian, IP’s stepson, was himself a lawyer. Without prior approval of the court, based on the
authority he was given in the order of appointment to retain counsel, he hired an attorney with
expertise in estate planning to draft a Will for the IP’s multimillion dollar estate. In the face of an
objection that the attorney’s fee should be denied because the guardian should have sought prior
court approval under Part 36 rules before hiring the attorney, the court held that Part 36 rules did
not apply to this nominated guardian, however, he was required to have the court approve the amount
of the fee. Since the Guardian had already realized his error in failing to have the fee pre-approved
he had already submitted a nunc pro tunc request for the court to approve the fee which the court had
already acted upon.
237