A New York Guardianship proceeding involves the determination of the capacity of an individual. In order for a Court to appoint a property management Guardian or a personal needs Guardian there must be a finding of incapacity.
Article 81 of the Mental Hygiene Law (“MHL”) provides the statutory provisions for these proceedings. As discussed in previous posts in the New York Probate Lawyer Blog, the case is commenced by the filing of a petition with the Court along with a paper known as an Order to Show Cause. After the Court reviews the petition and finds it to be sufficient to start the case, the Order is then signed. The signed Order contains the date and place for the hearing and the names of persons appointed by the Court as Court Evaluator or attorney for the alleged incapacitated person.
There are a number of fees that are generally associated with Guardianship matters. After a Guardian is appointed, he may be entitled to receive a fee or commissions for carrying out his guardianship obligations. The judgment appointing the Guardian typically sets forth the manner by which such fees are to be computed. The judgment usually provides for fees that are to be paid to other individuals such as the attorney who represented the petitioner and the Court Evaluator or the attorney who represented the incapacitated person. It is common for the Court to direct that these fees be paid out of the assets owned by the incapacitated person.
There are some occasions when the petition for guardianship is denied by the Court or the matter may be discontinued by the agreement of the parties. In these situations the Court has the authority under MHL Section 81.09(f) to direct that the petitioner pay for these fees in addition to the alleged incapacitated person. In a recent Brooklyn Guardianship case entitled “Matter of Brice v. Wilks“, decided by Judge Kathy J. King on February 4, 2014, the Court directed that the petitioner pay the Court Evaluator’s fees after the petition was denied.
It is important for a person considering starting a Guardianship case to consult with a knowledgeable Guardianship attorney who can review the issues that are involved and explain the various fees and costs that may be incurred. Sometimes the facts of a matter may involve a risk that the petitioner could be held responsible for fees that are not otherwise expected.