IN RE: the Application of S.B. (2020)

By Order dated March 13, 2020, the Court appointed Care Manage for All, LLC as special limited guardian of the person (the “Guardian”) of E.K. (AIP). The Court also directed that the Guardian shall be compensated upon submission of Affirmations of Services with supporting billing statements to the Court, to be paid from the E.K. Irrevocable Trust dated August 31, 2016. The Guardian submitted an initial application for compensation by affidavit of Dr. Kim Evanoski dated June 30, 2020, seeking compensation for services from May 7, 2020 through June 21, 2020.

The Court has carefully reviewed the Guardian's invoice, which includes time records. The invoice has also been reviewed in coordination with the Guardian's report of June 21, 2020. The invoice seems modest, in light of the efforts detailed in her report. In fact, the Guardian has not requested compensation for many phone calls clearly made in furtherance of her duties and responsibilities as Special Guardian. The Court finds that reasonable compensation for the Guardian for services rendered between May 7, 2020 and June 21, 2020, is $1,550.

The Court has the responsibility to establish a plan for the reasonable compensation of a guardian. Mental Hygiene Law § 81.28(a). The Court has the further responsibility to direct how that compensation should be apportioned and paid. The Legislature did not specifically provide the guardian's compensation must come from any particular source. Matter of Alexander B.P., 165 AD3d 801 (2d Dept 2018).

The Guardian's June 21, 2020 report raises concerns that E.I. refused to coordinate and affirmatively acted to interfere with the court-ordered visitation between AIP and S.B., which was agreed upon by all parties, including E.I. The Guardian requested that her fees be directed from the funds of AIP, but the Court believes this would be an inequitable result, considering that AIP is being asked to pay for the costs of facilitating visitation that she has not yet been able to enjoy, seemingly due only to the lack of cooperation and interference by E.I.

This Decision is notice to all parties and counsel that the Court will hold a hearing on the issue of how much of the Guardian's awarded fee of $1,550 will be assessed against E.I., due to her alleged interference with court-ordered visitation between AIP and S.B. 22 NYCRR 130-1.1; see, e.g., Matter of John T., 42 AD3d 459 (2d Dept 2007) (reversing award of fees against non-party nursing home when nursing home did not receive proper notice and opportunity to be heard that the court was considering the imposition of fees and costs and/or sanctions against it for its alleged malfeasance). The hearing on this issue will be scheduled at the first available opportunity and may be held in conjunction with other proceedings in this matter.

This Decision constitutes the Order of the Court.

David H. Guy, J.