The Court appointed Marybeth D. and Steven D. as Co-Guardians of the Person and Property of Mason G. D. (Mason or IP), confirmed by order and findings dated August 13, 2021. On August 14, 2024, Comerica Bank & Trust, N.A., Trustee of the Mason G. D. Settlement Trust, filed a motion with supporting exhibits seeking Court authorization to pay legal fees and disbursements to Rivkin Radler LLP for services provided to the Trustee in connection with administration of the Trust. The application includes an affirmation of services from Jennifer Hillman, Esq., and time record for legal services rendered and disbursements incurred from the period of July 25, 2023 through June 19, 2024, which the Court has received and reviewed. The services for which reimbursement is sought largely relate to issues preceding and then the hearing on petitions brought by each co-guardian to remove the other. The Trustee was not a party to that proceeding.

The application was returnable on-submission on August 29, 2024, and all those entitled to notice of these proceedings received proper notice. By letter dated August 22, 2024, Robert Connolly, Esq., as counsel for Steven D., filed a letter indicating his client took no position on the Trustee's motion for attorney fees. Steven D. then contacted the Court, indicating he was going to appear pro se and wanted to respond to the motion. The Court provided Steven D. a deadline of September 25, 2024 to file any response to the motion, as well as a form for consent to change counsel if he was now going to appear pro se in this matter. A substitution of attorney form to that effect was filed with the Court on September 3, 2024.

Steven D. did not file any response by September 25, 2024. On September 27, 2024, he contacted the Court asking for additional time. The Court gave Steven D. a further extension to [*2]October 1, 2024 to file any such response, which he did not do. No other responses to the motion were received.

Article 81 provides for the determination by the court of the fair and reasonable fee of counsel for the petitioner in a successful proceeding. The court also has discretionary authority to award fees where a petition is not granted. It is well-settled that Supreme Court has broad discretion to decide the reasonable compensation to be awarded as attorney's fees in a guardianship proceeding even in the absence of objections. MHL § 81.16(f); Ricciuti v Lombardi, 256 AD2d 892, 893 (3d Dept 1998); Williams v. Jackson, 10 Misc 3d 58 (2d Dept 2005). Analogous to though not directly on point with the statute and case law, is the court's authority to set and allow the legal fees incurred by guardians in connection with their court granted authority. Indeed, this Court has done that myriad times. See, e.g., Matter of S.B (E.K.), 72 Misc 3d 1205(A) (Sup Ct, Chemung County 2021) (Guardian's legal fee set by court and allocated against petitioner). This application is one more level removed from the statute and case law: the trustee of a trust authorized by the Court for the benefit of the IP is requesting the counsel fees it chose to incur in a dispute between the co-guardian parents be paid from the IP's resources.

The retainer agreement between the trustee and its counsel may control the parties to that agreement, but does not bind the court in its determination of the fair and reasonable fee to be paid from the assets of the incapacitated person. Williams v. Jackson, supra; NYSBA Commission on Professional Ethics Opinion 689 (1997).

Factors for the court to consider in determining the proper apportionment of fees on a petition include, among others, any benefits that accrue to the AIP resulting from the filing. In re Kurt T., 64 AD3d 819, 823 (3d Dept 2009). In making its determination, the Court must provide a clear and concise explanation with reference to, among other factors, the benefit flowing to the ward as a result of the attorney's services. Matter of Helen E. McEwen (Welte), 2019 NY Misc. LEXIS 2432, *5-6 (Sup Ct, Monroe County 2019); see also, In re Tijuana M., 303 AD2d 681, 682 (2d Dept 2003); Matter of Mavis L., 285 AD2d 509, 727 (1st Dept 2001); Matter of Freeman, 34 NY2d 1, 311 (1974); Matter of Stark, 174 AD2d 746, 571 (3d Dept 1991).

The Trustee is neither a party to nor required to be on notice of this proceeding. When personal issues arose between the co-guardians the Trustee retained and consulted with counsel. When that dispute between the co-guardians resulted in cross petitions for their removal, the Trustee chose to have counsel attend the hearing. Trustee's counsel did not, and could not, participate in the proceeding, which was reiterated to Trustee's counsel when she first attended the hearing. The Trustee manages and disburses the funds which comprise the guardianship estate. It did not, and could not, take a position on the proceeding where the property co-guardians with authority to direct it are opposing each other. Even though each petition stated it sought removal of the other co-guardian with respect to both personal and property needs, it was immediately apparent in the hearing that only the personal guardian responsibilities were at issue. At the initial appearance on the petitions, before the hearing commenced, the Court issued a temporary order on the consent of all parties, removing both parents as person guardian with respect to medical decision-making authority, and leaving the property co-guardianship in place. The ultimate decision of the Court following the hearing leaves the original property co-guardianship in place.

The Trustee argues that its legal fees "are for the direct benefit of Mason," including "participation in and attendance at hearings." The Court flatly rejects that assessment. There are a few time entries related to consultations on routine administrative matters, such as the guardians' annual report, typical expenses of doing business not appropriately charged to the IP's funds. The balance of the time spent — the substantial majority of the total — relates to the cross petitions and related hearing. Trustee's counsel did not "participate," she sat in. There is no showing of benefit to the IP.

The Court is in no way critical of the way this matter has been conducted by Trustee's counsel. Counsel and counsel's firm have extensive, recognized expertise in the field of Article 81 proceedings. The Court is also not second-guessing Trustee's business decision to retain counsel, but reviewing whether the efforts expended are appropriately chargeable to the incapacitated person as a reasonable fee for services beneficial to him. Williams v. Jackson, supra; In re Kurt T., supra.

There is no indication that the Trustee is unable to afford to pay its own counsel fees. The Trustee's affidavit in support states the trust balance is over $11,300,000, presumably to establish that the requested fee of more than $37,000 (over one-third of which is from travel time) is nominal in proportion to the value of the trust. It is, but it is also the case that it is modest in proportion the Trustee's annual commissions, let alone Trustee's total resources. See, In re Kurt T., supra at 823.

The court declines to exercise its discretion to grant this application. The Trustee's motion for an order directing its legal fees in this matter be paid by IP is denied, in its entirety.

This decision constitutes the Order of the Court.