Opinion 02-37

July 6, 2004

Digest:         A judge may not accept an appointment to serve as a fiduciary, for compensation under Article 81 of the Mental Hygiene Law, but it would not be unethical to continue to serve in such capacity pursuant to a court appointment made prior to the judge assuming the bench.

Rules:          22 NYCRR Part 36.

Opinion:

         A recently elected full-time judge was serving as an appointed guardian under Article 81 of the Mental Hygiene Law for two elderly clients prior to assuming the bench. One appointment continues from 1994, the other from 2001. The judge now inquires if he/she may continue to serve in that capacity after assuming the bench. Guardians under Article 81 need not be attorneys.

         Under Part 36 of the Rules of the Chief Judge, a judge may not accept an appointment to serve as a fiduciary under Article 81 of the Mental Hygiene Law, for compensation. However, it is this Committee’s opinion that it would not be improper for the inquiring judge to continue to serve in such fiduciary capacity pursuant to a court appointment which was made prior to the judge assuming the bench. It is advisable that such service be completed within one year, if possible.