P.S., petitioner herein, filed an application by way of affidavit of Kirstin Tiffany, Esq. and affidavit of Ms. S., seeking an Order of this Court authorizing the reimbursement of Ms. S.'s legal fees and disbursements in this matter, which she has paid to Ms. Tiffany's law firm, from the resources of T.J.. The Court made the application returnable on-submission on May 29, 2024 and issued an order dated May 13, 2024 appointing Mental Hygiene Legal Service (3rd Dept.) as counsel for T.J..

By letter dated May 24, 2024, Mental Hygiene Legal Service (3rd Dept.), Kathryn Hansen, Esq., of counsel, indicated her opposition to Ms. S.'s application. Ms. Hansen indicates T.J. feels he did not derive any benefit from the proceeding brought by Ms. S.. Mr. J. had expressed that he did not want Ms. S. appointed as his guardian. Ms. Hansen argues that this contested guardianship matter was the result of interpersonal conflict between T.'s mother and sister, rather than any legal complexity, and that this conflict in no way benefited Mr. J.. Ms. Hansen also states that granting Ms. S.'s request for payment would significantly deplete Mr. J.'s total financial resources by more than half.

On May 29, 2024, Mr. Maggs filed an attorney affirmation and affidavit of M.C., with two exhibits, in opposition to Ms. S.'s fee application.^[FN1] Ms. C. opposes the relief sought in Ms. [*2]S.'s application and argues that she brought the original petition in this matter over concerns regarding Mr. J.'s privacy, Ms. S.'s control of Mr. J.'s finances, and Mr. J.'s ability to visit with Ms. C.. Mr. Maggs indicates that Ms. S.'s resistance to resolution of this matter in accordance with Mr. J.'s desires is what led to the matter being drawn out, with corresponding legal fees incurred by Ms. S. and Ms. C.. Ms. C. has not requested payment of her fees, undoubtedly also substantial, from T.J.'s resources.

A reply in the form of an affidavit by P.S. was filed on June 7, 2024. The reply addresses issues raised in the opposition regarding Ms. S.'s alleged actions as a caregiver for T.

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). In doing so, the Court must provide a clear and concise explanation with reference to the following factors: (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented, (2) the attorney's experience, ability, and reputation, (3) the amount involved and the benefit flowing to the ward as a result of the attorney's services, (4) the fees awarded in similar cases, (5) the contingency or certainty of compensation, (6) the results obtained, and (7) the responsibility involved. 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 Court is guided by these factors in determining a reasonable fee for Ms. S.'s counsel in this proceeding, and also in its determination that reimbursement of a substantial portion of that fee be deferred. The difficulty involved in this contested guardianship matter centered on the interpersonal issues between Ms. S. and Ms. C., not any complex legal questions. While the competing Article 81 petitions ultimately brought some benefit to T.J. in the form of clarity regarding issues surrounding cameras in his home, his ability to visit with his mother, and how his finances are controlled, the genesis of these issues was the long-term animus between Ms. S. and her mother.^[FN2] The Court is also compelled to consider the relatively low amount of funds in T.'s trust in relation to the request for T.'s funds to be used to pay Ms. S.'s legal fees, which would constitute nearly half of the trust corpus. Matter of R.T. (D.C.), 64 Misc 3d 612, *8 (Sup Ct, Broome County 2019). Ms. C. paid her own fees in this matter, and Ms. S. will largely do the same.

T.'s funds from which Ms. S. seeks reimbursement of her legal fees are held in a first-party supplemental needs trust (SNT). Upon T.'s passing the remaining funds in the SNT will be payable to "New York State Department of Social Services, or other appropriate Medicaid entity within New York State," in partial reimbursement of Medicaid expended on behalf of T. during [*3]his lifetime.^[FN3] From an equitable perspective the Court views reimbursement of reasonable fees allowed in this action as having priority over Medicaid reimbursement. Compare Matter of R.T.(D.C.), supra (where the Court noted the disallowed fees would be effectively reimbursed to petitioner through inheritance). The balance of the fees allowed, but not for current reimbursement, may be paid from the SNT upon T.'s passing, before reimbursement of Medicaid expenditures.

The Court has reviewed Ms. Tiffany's fee affirmation. The total compensation payable to counsel from Ms. S. is based on their retainer agreement, which is a binding contract between her and her attorneys. The Court's only responsibility is to set the reasonable and appropriate portion of that fee payable from AIP's resources. Matter of Ruth S. (Sharon S.), 125 AD3d 978, 980 (2d Dept 2015); R.T.(D.C.), supra. Considering all the factors set forth above and the facts and circumstances of this case, the Court finds that the amount of $2,500 may be reimbursed to Ms. S. currently from the resources of T.J.'s SNT, as a reasonable fee for a proceeding to convert T.'s Article 17-A guardianship to an Article 81 guardianship; and the additional amount of $12,500 may be reimbursed to Ms. S. from the resources of T.J.'s SNT, upon the passing of T.J..

The parties are cautioned that it is very unlikely the Court will consider favorably any petition for reimbursement of legal fees for subsequent proceedings in this matter.

Now, therefore, it is hereby

ORDERED, that the fee application submitted on behalf of P.S. is granted in part and denied in part, to wit:

A. The sum of $2,500 may be currently reimbursed to P.S. from the T.J. SNT; and

B. The further sum of $12,500 may be reimbursed to P.S. from the T.J. SNT, upon the death of T.J..