Upon the foregoing papers, the application by order to show cause filed by L.F., Esq., counsel for the petitioners in the underlying Article 81 proceeding, for an order approving the proposed settlement of the divorce action involving J.W., a person found by this court to be in need of a limited guardian, expanding the powers of the limited co-guardians and approving the payment of attorney fees pursuant to Mental Hygiene Law §81.16(f), is denied in its entirety.

After a conference with this court involving J.W.'s attorney, B.C., Esq., S.S., Esq., the court examiner appointed in this matter, and L.F., this court denied the motion for an order seeking this court's approval of the divorce action involving J.W., which is pending in Suffolk County and denied the motion seeking to expand the powers of the co-guardians appointed herein. The co-guardians for J.W., S.B. and B.W., were appointed for the very limited purpose of defending J.W. in the pending divorce action. Since that action is pending in Suffolk County, it is for the judge presiding over that action and not this court to approve any divorce settlement that has been reached. This court only presided over the action involving the appointment of a guardian for J.W..

Moreover, the petitioners made no showing for the need to expand the powers of the limited co-guardians and that motion was denied. The only remaining issue after the conference before this court, was what attorneys fees, if any, would be approved for L.F..

L.F. submitted an affirmation of legal services wherein she seeks $17,956.25 for 55.25 hours of legal services rendered on behalf of the co-guardians with respect to order to show cause filed herein. In addition, she seeks $3,250 for anticipated legal services of 10 hours "to resolve this matter and file a final account and terminate the guardianship." (L.F. Aff., para. 38-39). She further seeks $130.21 for disbursements which include the filing fee for the order to show cause, fees for photocopies and for service of the order to show cause and petition. L.F. [*2]states in her affirmation, that petitioners have requested that the legal fees and disbursements be paid by J.W. or in the alternative, that payment be made from the trust over which the co-guardian, B.W., has control.

B.C., J.W.'s attorney, opposes the request by L.F. for legal services rendered on the ground that the order to show cause filed by L.F. was "unnecessary and frivolous." Moreover, B.C. emphasizes that the order and judgment appointing the limited co-guardians did not authorize the co-guardians to retain counsel and they should not benefit from retaining L.F. without court authority to do so. B.C. asserts that the co-guardians should be responsible for the legal fees.

The court examiner, S.S., submitted an affirmation wherein she offered several factors for the court to consider in determining the approval of fees for L.F. S.S. refers to the fact that the co-guardians were granted very limited powers which did not include the power to retain counsel and L.F.'s services were retained without prior court authorization. S.S. further emphasizes that the limited co-guardians were not in control of the assets of J.W. and are waiving any commissions. Therefore, payment of $21,206.25 in legal fees to L.F. may cause an appearance that J.W.'s assets are being used to further an adversarial proceeding since the order to show cause to expand the powers and approve the divorce settlement are adversarial to Mr. W. in that he has taken issue with the co-guardians every step of the way and he did not agree to a great number of the terms of the divorce settlement.

Co-guardian, S.B., submitted a letter to this court wherein he states that L.F. agreed not to bill the co-guardians nor seek compensation from them for services performed by her.

Mental Hygiene Law §81.16(f) states, "When a petition is granted, or where the court otherwise deems it appropriate, the court may award reasonable compensation for the attorney for the petitioner..." L.F. received $12,500 for legal services rendered as attorney for the petitioners in the underlying guardianship matter, payable from the assets of J.W.. The order to show cause she filed for approval of the divorce settlement and for expansion of the powers of the co-guardians was unnecessary and it was denied by this court. L.F. refers to the fact that J.W. has made this proceeding adversarial. However, since the guardianship is extremely limited in scope and L.F. was seeking to expand the co-guardians powers, Mr. W. has every right to contest the order to show cause and it should not be done at his expense. Since the petition was unnecessary and the motion was not granted, it would be improper and unjust for this court to award L.F. any compensation from the assets of J.W..

In addition, and more importantly, L.F., in filing the order to show cause was acting in the capacity of attorney for the co-guardians without having sought permission from this court to do so. The amended order and judgment signed by this court on September 29, 2005 delineates the specific powers of the co-guardians. Said order and judgment does not authorize the co-guardians to retain counsel. Therefore, court approval was required before L.F. could act on behalf of the co-guardians. Moreover, the co-guardians that were appointed for J.W. are seasoned attorneys which would obviate the need for counsel to be appointed on their behalf. [*3]Much of the work L.F. billed for is work that could easily be performed by the co-guardians if necessary. Moreover, she seeks fees for an additional ten hours of anticipated work to resolve this matter, file a final accounting and terminate the guardianship, which is work the guardians themselves should be performing.

The co-guardians assert that L.F. agreed not to bill them for any of her services. However, it was improper and presumptuous of L.F. to assume that any motions she filed or other work she performed on the co-guardians' behalf, without prior authorization, would automatically be payable from J.W.'s assets. This court is not privy to any retainer agreement executed between L.F. and the co-guardians. However, in Matter of Roy, 164 Misc 2d 146 (Sup. Ct. Suffolk County 1995), the court, in determining the amount of fees to be awarded to petitioner's counsel in an Article 81 proceeding, stated, "...if an attorney, by anticipating an award pursuant to section 81.16(f) of the Mental Hygiene Law, persuades a client to sign a retainer agreement to prosecute a Mental Hygiene Law article 81 proceeding with an assuring representation or suggestion that the proceeding ultimately will result in no expense to the petitioner, such attorney has either negligently or deliberately made a material misrepresentation to the client." Id. at 149. The court concluded that it would not,"...undertake to protect the petitioner's pocketbook by granting what it may deem an undue award to counsel for the petitioner at the expense of the alleged incapacitated person." Id. at 150.

This court is not casting aspersions on L.F. However, this court will not impose the extraordinary legal fees requested by L.F. upon Mr. W., despite any agreement she may have had with the co-guardians, for unauthorized services performed on their behalf and for the filing of an unnecessary order to show cause.

Accordingly, L.F.'s request for legal fees in the amount of $21,206.25 and disbursements in the amount of $130.21 for compensation for her services as counsel for the co-guardians, payable by J.W., is denied.

This constitutes the decision and order of this court.

Dated: April 13, 2007__________________