Posted On: April 2, 2012 by Stephen Bilkis

Court Decides Fees for Guardians

The trial discussed concerns the legal settlement of the final account of two persons and the fixation of legal fees. The two persons were the appointed guardians of the properties of the deceased incompetent man. While the administrator of the properties also filed objections and has argued for a surcharge against one of the appointed guardians and for a direction that the other appointed guardian accounts for the money supposedly belonging to the properties that he received both prior and subsequent to his appointment. A New York Probate Lawyer said the opposing motion was granted for the extent that the appointed guardian must file a detail of his acts.

It started when the sister of the incompetent man was appointed as the guardian of her brother and as well as guardian of his properties by the order of the New York Court. She was also appointed guardian as a result of the additional proceedings in the Superior Court of New Jersey, where the incompetent man possess properties. Through a court order, she was permitted to move the incompetent man and certain of his assets to California, where she resided with her husband. Years later, the sister of the incompetent man died in California. At that time, the incompetent man was also in California, as were certain assets of his estate, which were in part transferred from his properties in New York and New Jersey. Afterwards, the husband of the sister of the deceased was appointed as his guardian as well as of his properties by the order of the superior court of California, Los Angeles County.

The husband of the sister filed a petition claiming that the deceased brother-in-law was a resident of Los Angeles County and was then a patient at one of the sanitarium. A Staten Island Probate Lawyer said he also stated that his wife had been the guardian of the incompetent man by appointments in the Courts of New York and New Jersey, and that at the time of her death, as such guardian, she had in her control her personal property. It appears that the husband believes that the deceased was a resident of California, and petitioned for his appointment under the California Probate Code. Under the said section, notice is required to be given only to the relatives of the incompetent man within the second degree and residing in California. However, it is agreed that the incompetent man was not a resident of California at such time, and the law is clear that a guardian may not change the residence of the incompetent man. The protesting party concludes that the order of the California Court appointing the husband as guardian was void and further stress that all of the husband's acts under the order are void.

The brother-in-law of the incompetent man followed the order of the court; however, he took control of the incompetent man’s assets in California and obtained control of the income from the real assets in New Jersey even though he did not qualify in New Jersey as guardian.
Thereafter, the brother-in-law of the incompetent brought a proceeding in the court of New York for the legal settlement of the account of his wife as a deceased guardian and for the appointment of a successor guardian. In the proceeding, he revealed that he had been appointed as guardian of the incompetent man in place of his wife in California after she died.

Queens Probate Lawyers said objections were filed by the attorneys for various next of kin. The claim was made that the brother-in-law of the incompetent man made an unlawful attempt to change the incompetent's residence to California. Objection was made to the appointment of the husband as successor guardian. A request was made for a reference and a special guardian was appointed. The court then decided by appointing the brother-in-law of the incompetent man and another person as co-guardian. The decision referred to the husband's appointment as guardian in the California Court and declared him to be a proper person to act as co-guardian. The request for a reference was denied. The order was signed appointing the co-guardian and settling the account.

The co-guardian applied a motion to modify the order appointing the brother-in-law of the incompetent man. He claims that the brother-in-law had attained orders in the California Court allowing him $3,800 for his alleged services to the incompetent man and an order for the purchase of a car which had not been revealed by the husband prior to his appointment as guardian. The application was denied by the court who indicated that the brother-in-law’s acts could be adequately reviewed upon a subsequent final or intermediate accounting. In the additional proceeding in the Superior Court of New Jersey, the brother-in-law and the co-guardian were appointed as the successor guardians and the property of the incompetent man remained in the name of his sister, the deceased guardian. In addition, the co-guardian made many demands to the husband with respect to the assets in California, but failed. However, the co-guardian succeeded in cutting off payments from the New Jersey property in which the money goes to him instead of the brother-in-law in California.

The incompetent man died in California. The Surrogate’s Court appointed an administrator for his property. The administrator filed objections to the account. He urged that the California had no jurisdiction to appoint the brother-in-law and his appointment was invalid and the court is entitled to inquire an accounting of his acts. He states that each item of disbursement in the brother-in-law's account is objected to on the ground that no proof of payment is offered, or of fairness and necessity. The purchase of the car is questioned, as well as payments of his trips to the incompetent's sanitarium, clothing purchases and incidentals. The payments for accounting expenses and for his compensation are also challenged by the appointed administrator.

The objection is also filed to the co-guardian’s accounts for allegedly failing to account for all of the original assets and inclusion of commissions on the gross rents collected. He also included that management of the property was in the complete control of the brother-in-law and certain disbursements and payment of fees are unaccounted. It is contended by the co-guardian that the court of New York does not have the power in the proceeding to determine the acts of the brother-in-law which led to his appointment as co-guardian which dates back to the period covered by his account.

Consequently, the failed objection to include all the assets as of the date of death of the sister is overruled by the court. The objection pertaining to the payment of a fee to the co-guardian was upheld. The objection to payments made to the corporation in New Jersey is refused by the court. The objection relating to the request of fee for a New Jersey counsel for services rendered in additional proceedings is modified. The services performed were necessary and the fee however will be fixed. Other objections are verified insofar as they relate to the period prior to the date of the brother-in-law’s appointment in New York as co-guardian is overruled by the court .The account is settled and allowed. The co-guardian is allowed a fee for legal services and no fee is allowed for the attorney of the brother-in-law. The account should have been filed by both co-guardians instead of two separate portions. The cross motion is denied.

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