New York Probate Lawyer Blog
Guardianship cases in New York are controlled by Article 81 of the Mental Hygiene Law (MHL). These proceedings concern the appointment of Guardians for personal needs and for property management.
The Court proceedings in Article 81 cases involve the filing of a petition with the Court and a hearing. The Court must decide whether clear and convincing evidence has been presented that shows a person to be incapacitated and in need of a Guardian.Once a Guardian is appointed, he will have may different powers relating to the management of the incapacitated person’s affairs. MHL Section 81.21 entitled “Powers of guardian; property management” and MHL Section 81.22 entitled “Powers of guardian; personal needs”, list various powers that a Guardian may utilize on behalf of the person that is incapacitated.
Another aspect of Guardianship is that the Guardian is entitled to receive a payment for acting in this fiduciary capacity. MHL Section 81.28 is entitled “Compensation of guardian”. This statute basically provides that the Court may establish a reasonable amount for the Guardian to be paid. Very often the payment to the Guardian is based upon the same formula by which commissions are calculated for Executors and Administrators. This formula is found in Surrogate’s Court Procedure Act (SCPA) Section 2307 entitled “Commissions of fiduciaries other than trustees”.
A recent case decided by Queens Supreme Court Justice Bernice Siegal on December 5, 2017 entitled Matter of Bax provides that the amount of Guardianship compensation is subject to the Court’s discretion. In Bax, the Court refused to consider a motion to renew in which the Guardian argued that the Court could not award an amount of commissions to the Guardian lower than the strict statutory guidelines provided in SCPA 2307. The Court found that it had the discretion to make a lower award in view of the circumstances of the case.
I have represented Guardians and other parties in Guardianship proceedings including accounting cases where fees are being sought. These matters can be Brooklyn Guardianship matters, Manhattan Guardianship matters or in other County Guardianship matters. If you have a question or issue in a Guardianship case, call or email me now for a free review.
New York City Guardianship Attorney Jules Martin Haas, Esq. has been representing clients in New York Guardianship Proceedings, throughout the past 30 years in New York, including Queens and Nassau Counties. If you or someone you know is involved with or has questions about a New York Guardianship matter, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.