Opinion 18-130

September 6, 2018

Digest:         If the criteria of 22 NYCRR 36.1(b)(2)(I) are met, a full-time judge may allow a part-time judge to serve as a court-appointed guardian, and the part-time judge may so serve.

Rules:          Judiciary Law § 212(2)(l); Mental Hygiene Law § 81.21; 22 NYCRR 36.1(a); 36.1(b)(2)(I); 36.2(c)(1); Opinions 08-130; 04-138; 98-81.

Opinion:

         A full-time judge appointed a part-time attorney judge to serve as guardian “for property management only” for an alleged incapacitated person (AIP) under Mental Hygiene Law § 81.21.¹ At the time of the appointment, no one reviewed or considered Part 36. Now that the issue is raised, the two judges ask if the part-time judge may continue to serve as guardian. A review of the appointment order and the judges’ inquiry letters indicate: (1) the AIP’s sibling initially “suggested” the part-time judge as guardian;² (2) petitioner Mental Hygiene Legal Services likewise “proposed” him/her to the court; (3) the AIP’s sibling’s counsel “and/or the Mental Hygiene Legal Services obo [the AIP]” moved for the appointment; and (4) the AIP “was agreeable to [the part-time judge’s] appointment as Guardian.” The full-time judge also states the part-time judge has been serving diligently and capably as the AIP’s guardian in a particularly complex and difficult situation.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must respect and comply with the law (see 22 NYCRR 100.2[A]), and must always act to promote public confidence in the judiciary’s integrity and impartiality (id.).

         Under Part 36, individuals such as “a judge or housing judge of the Unified Court System of the State of New York” (22 NYCRR 36.2[c][1]) ordinarily may not be appointed as “guardians” (22 NYCRR 36.1[a][1]). However, Part 36 “shall not apply” to the appointment of “a person or entity nominated as guardian by the subject of the proceeding” or “a person or entity proposed as guardian by a party to the proceeding” (22 NYCRR 36.1[b][2][I]). Thus, while Part 36 clearly disqualifies judges, including part-time judges (see Opinion 04-138), from most court-appointed guardianships, it is possible that an exception might apply here if the AIP “nominated” the guardian or if a party “proposed” him/her as guardian (22 NYCRR 36.1[b][2][I]).

         Whether or not this part-time judge, who was “suggested” by the AIP’s sibling, “proposed” by MHLS, and “agreeable” to the AIP falls within this or another exemption from the Part 36 prohibition is a factual and legal question beyond our authority to resolve (see Opinion 98-81; Judiciary Law § 212[2][l]). However, if the appointing judge determines that Section 36.1(b)(2)(I) applies, then we conclude the part-time judge may continue to serve as property guardian (see Opinion 04-138).³

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¹ The appointment order finds the AIP “is a person in need of a Guardian for property management only, due to [his/her] functional limitations.”

² We understand the sibling was legally entitled to notice concerning the guardianship proceeding and was actively involved in it; was serving as the executor of their parent’s estate and as trustee of supplemental needs trusts benefitting the AIP; and was residuary beneficiary of the trusts.

³ If the full-time judge concludes the appointment should be terminated, the remaining question may be whether the part-time judge may seek his/her fees and disbursements for fiduciary services previously rendered (see Opinion 08-130).