MHL ARTICLE 81 - New York State Unified Court System

Matter of Buxton, 1 Misc.3d 903A; 781 N.Y.S.2d 628 (Surr. Ct., Westchester Cty. 2003)(Surr.
Scarpino)
Surrogate ordered a “defacto fiduciary” to account for how she managed an individual’s financial
affairs prior to the appointment of an Art 81 guardian, holding that a person may be deemed to be
a fiduciary, even though he or she never qualified to act in a fiduciary capacity, if that person
undertook duties and responsibilities ordinarily assumed by a fiduciary.
R. Contempt
Matter of Maria F, 35 Misc. 3d 1240A; 2012 N.Y.Misc. LEXIS 2770 ( Sup. Ct. Bronx Cty.
2012) (Hunter, J)
The trial court denied a petition for guardianship and directed the petitioner to, inter alia, pay the
Court Evaluator's fee. After several months of the Court Evaluator attempting to collect her fee, she
moved before the court that had presided over the guardianship proceeding for an order compelling
petitioner to pay or in the alternative for the court to enter judgement against the petitioner.
Petitioner's counsel argued that he had filed for an extension of time to appeal the order that directed
payment of those fees and the Court Evaluator demonstrated that the motion to extend was filed
only after the instant proceeding to collect her fees. The trial court directed payment of the Court
Evaluator's fee within 20 days and ordered that if the fee was not paid, petitioner would be held in
contemp of court.
Matter of Chiaro, 28 Misc.3d 690; 903 N.Y.S.2d 673 (Sup. Ct, Suffolk Cty.)(Leis, J.)
One of the IP’s sons, Dennis Chiaro, moved for a contempt order against his brother David Chiaro.
The court noted the rights of each of the four sons, as remaindermen of the Chiaro Family Revocable
Trust, was a matter the parties focused on in reaching a compromise in this contested Article 81
proceeding. The parties had stipulated in open court that the trust would be amended to include all
four brothers as equal 25 percent beneficiaries. The court noted that after a review of the record of
prior proceedings it was clear that David, as property management guardian for his mother, the IP,
was required to amend the trust, and his failure to comply with the clear mandate resulted in Dennis's
motion to hold David in contempt. Despite David's inaction, however, the court concluded that same
was insufficient to support a finding of civil contempt because, David never effectively had the
power to amend the trust. The court explained that pursuant to the language of the trust instrument,
the IP lost the power to amend the trust once she because incapacitated, and the appointment of a
guardian did not restore this power to her. As the IP had no power to amend the trust, a guardian,
who can only assume powers actually held by the IP, could hold no derivative power. Thus, since
David’s willful disregard of the court’s mandate did not defeat, impair, impede or prejudice Dennis’
rights, the court denied Dennis’ motion. Nevertheless, the court ruled that the stipulation was to be
construed to reflect that the trust assets would be divided equally among the four sons without the
need for amendment.
243