The Fourth Department, reversing Supreme Court, determined that the court should not have directed the petitioner, Upstate University Hospital, to pay the court-appointed attorney’s fees and the court evaluator’s fees in this proceeding to appoint a guardian for an alleged incapacitated person (AIP). The petition to appoint a guardian was successful and the AIP did not die during the proceedings. The court-appointed attorney should be paid pursuant to the County Law article 18-B, and the court did not have the authority to require petitioner to pay the court evaluator’s fee. The Fourth Department further determined Supreme Court did not abuse its discretion by failing to appoint Mental Hygiene Legal Services to represent the AIP:
Article 81 of the Mental Hygiene Law provides that the court may appoint an attorney to represent the AIP, and that petitioner may be directed to pay for such services where the petition is dismissed or the AIP dies before the proceeding is concluded … . In all cases, “[t]he court shall determine the reasonable compensation for the mental hygiene legal service or any attorney appointed pursuant to” that statute … . Nevertheless, “the statute is silent as to the source of funds for payment of counsel [where, as here,] the AIP is indigent”… . Despite that silence, it is well settled that “the Legislature, by providing for the assignment of counsel for indigents in the Mental Hygiene Law, intended, by necessary implication, to authorize the court to compensate counsel” … , and it is likewise well settled that the court should direct that requests for such compensation should be determined “in accordance with the procedures set forth in County Law article 18-B” … . Thus, the court erred in directing petitioner to pay those fees.
We also agree with the contention of petitioner in appeal No. 3 that the court erred in directing it to pay the fees requested by the court evaluator. Where, as here, a court appoints a court evaluator pursuant to Mental Hygiene Law § 81.09 (a) and then “grants a petition, the court may award a reasonable compensation to a court evaluator, including the mental hygiene legal service, payable by the estate of the allegedly incapacitated person” … . The statute further provides that a court may direct petitioner to pay for the services of a court evaluator only where the court “denies or dismisses a petition,” or the AIP “dies before the determination is made in the petition” … . Therefore, “notwithstanding Supreme Court’s broad discretion to award reasonable fees in Mental Hygiene Law article 81 proceedings . . . , [inasmuch as] petitioner was successful [and the AIP is alive], the court was without authority to ascribe responsibility to petitioner for payment of the court evaluator’s fees” … . Matter of Buttiglieri (Ferrel J.B.), 2018 NY Slip Op 00738, Fourth Dept 2-2-18
MENTAL HYGIENE LAW (PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/MUNICIPAL LAW (COURT-APPOINTED ATTORNEY’S FEES, MENTAL HYGIENE LAW, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/ATTORNEYS (COURT-APPOINTED ATTORNEY’S FEES, MENTAL HYGIENE LAW, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/ATTORNEY’S FEES (COURT-APPOINTED ATTORNEY’S FEES, MENTAL HYGIENE LAW, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/COURT EVALUATORS (MENTAL HYGIENE LAW, FEES, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/GUARDIANSHIP (MENTAL HYGIENE LAW, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/ALLEGED INCAPACITATED PERSON (AIP) (MENTAL HYGIENE LAW, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))