After a hearing before this court, an order and judgment dated January 26, 2010, was signed by this court appointing A.B., a close friend of C.C. (hereinafter "IP"), as the guardian of the person and property. In the order and judgment, Ms. B. was directed to post a bond in the amount of $138,200. Ms. B. now moves through her attorney, Sandra Prowley, Esq., to re-settle the order and judgment. The guardian moves to re-settle the order on the following grounds: that the filing of the bond should be waived or reduced to $45,228.68 to reflect the IP's assets after payment of bills and attorney fees; to correct the guardian's address to reflect that she resides at 5 XXX, Bronx, New York 10468; to correct the market value of the IP's co-op apartment to reflect that it is worth $8,729.32 and not $20,000; to reduce the fees of the court evaluator, Francis J. Apicella, Esq.

The guardian submits copies of her certificate of attending Article 81 training and a proposed re-settled order and judgment. The guardian further asserts that Workmen's Circle Multicare Center has been in possession of the IP's monthly pension check in the amount of $2,087 and she requests that the nursing home be directed to release said pension check to her.

In support of her motion, the guardian submits an affidavit stating that on August 3, 2009, the IP's savings account at New York National Savings Bank had a balance of $83,852.41 and his checking account at said bank had a balance of $8,267.18. After disbursement of "liabilities and attorney's fees" the total balance in the estate will be $45,228.62. (A.B. Affidavit, para. 5). The guardian asserts that as of February 16, 2010, the balance in the IP's savings account was $20,052.41 and the balance in his checking account was $40,119.75. After payment of the fees to the court evaluator and petitioner's attorney's legal fees and disbursements, the balance in the IP's estate will only be $45,228.68 Therefore, the bond should either be waived or reduced to reflect the current balance in the estate. [*2]

The guardian also asserts in her affidavit, that the court evaluator erroneously reported to this court that the value of the IP's cooperative apartment was $20,000. The guardian submits a copy of a letter from the Resale Director at Concourse XXX, indicating that the value of the co-op is $8,729.32. (Exhibit A).

The guardian further submits statements from New York National Bank indicating that on the first of every month, beginning with August 1, 2009 and ending on March 1, 2010, $1,100 was withdrawn from the IP's savings account and placed into his checking account. In addition, the guardian withdrew $40,000 from the IP's savings account and placed it into his checking account and she withdrew $15,000 from his savings account and placed it into a burial fund for the IP. The guardian also used funds from the IP's checking account to pay a cleaning service to clean the IP's apartment, to pay the IP's back rent, purchase a new telephone for the IP, paint the IP's apartment and purchase a new mattress and box spring for him.

The guardian also used $3,800 of the IP's funds to pay her attorney, Sandra Prowley, Esq., and to pay the IP's monthly rent. In addition, the guardian contracted with two home care attendants to provide round the clock care to the IP for a total of $625 per week.

The court evaluator opposes the instant motion and points out that the order and judgment signed by this court required the guardian to post a bond and obtain a commission. However, to date, the guardian has failed to do so. Moreover, she has been exercising her powers as guardian and spending over $40,000 of the IP's money without this court's authorization. The court evaluator further takes issue with the fact that the guardian refers to herself as the IP's step-daughter but there is no evidence that her mother was ever married to the IP.

The court evaluator further asserts that even though the IP was being well cared for at Workmen's Circle Multicare Center, the guardian removed him from the nursing home without having posted a bond or obtained a commission. She made certain expenditures in his apartment without court approval and further paid her lawyer $3,800 from the IP's funds without this court's permission. Mr. Apicella takes issue with the qualifications of the home health aides hired by the guardian. Moreover, he avers that when he valued the IP's apartment at $20,000, he was unaware that it was a Mitchell Lama cooperative apartment and he had been advised that the value was between $18,500 and $25,000.

Mr. Apicella further argues that Mental Hygiene Law sets forth certain procedural safeguards for the protection of an IP's assets and the guardian must comply with same. Moreover, a court examiner is appointed to review the expenditures and determine if the assets were properly used. He avers that the guardian herein has violated her fiduciary duty by failing to post the bond and obtain her commission. He recommends that a bond be set in the minimal amount of $100,000 and pending a report from the court examiner, the guardian should be surcharged a minimum of $3,800 of the IP's funds which she used to pay her lawyer's fees.

In reply, Ms. Prowley asserts that her fees should be awarded nunc pro tunc because she was successful in the Article 81 proceeding. She contends that the IP executed a power of attorney and health care proxy naming the guardian his agent and attorney-in-fact. Therefore, the bond should be waived. Finally, she contends that all expenditures made by the guardian were proper and she has not misappropriated any of the IP's funds for her benefit. Therefore, the order and judgment should be re-settled.

At the outset, this court notes that if the guardian and her attorney had any objections to [*3]the original order and judgment, they should have been brought to this court's attention at the time the order and judgment was filed and not two (2) months after it was signed and approved by this court.

The request for this court to re-settle the order and judgment is denied. The order and judgment signed by this court on January 26, 2010 is amended solely to the extent that the guardian's address shall be corrected to reflect that she resides at 5 XXX, Bronx, New York 10468 and not 901 XXX Street, Apartment 3E, Bronx, New York 10458.

The request by the guardian for this court to reduce the bond is denied at this time. When the hearing took place before this court, the IP had bank accounts totaling at least $87,600. In addition, even though Workmen's Circle Multicare Center had been in possession and control of the IP's pension in the amount of approximately $2107 per month, the guardian, in the instant application, has requested that the nursing home release the pension check to her. Therefore, Ms. B. will be responsible for marshaling that monthly income. At the time the order and judgment was signed, this court set the bond taking into account the total value of the IP's assets, including his monthly income but not including his apartment. However, the guardian took it upon herself to inappropriately make expenditures from the IP's funds without first obtaining her bond and commission.

Notwithstanding the fact that the guardian was in possession of a valid power of attorney, once the guardianship hearing was held and this court directed that an order and judgment be filed, the guardian was required to act in accordance with the order and judgment. Mental Hygiene Law §81.25(a) states, "Before a guardian, or special guardian appointed under this article...enters upon the execution of his or her duties, the court may require or dispense with the filing of a bond." This court clearly required that the guardian herein post a bond in the amount of $138,200 but the guardian has thus far failed to do so.

Mental Hygiene Law §81.25(e) states, "If the court requires the filing of a bond...The amount of the bond shall be fixed by the court. If the guardian...receives after-acquired property not covered by the bond, such guardian...shall immediately have such acquisition approved by the court and file a further bond." The statute does not require this court to reduce the amount of the bond after the order and judgment is signed and after the guardian takes it upon herself to make expenditures from the IP's funds without having first obtained her commission, thereby reducing the total value of the IP's assets.

The purpose of the bond is to ensure that the guardian, "...will faithfully discharge the powers granted by the court to the guardian...obey all directions of the court in regard to the powers, and make and render a true account of all properties received by [the guardian] and the application thereof and a true report of his or her acts in the administration of his or her powers..." Mental Hygiene Law §81.25(e).

Since this court has no way of knowing, prior to the court examiner's review of the expenditures made by the guardian, if they were appropriate, there is no reason for this court to reduce the amount of the bond at this time. If it is determined, upon the filing of the first annual report, that all expenditures were properly made and the court examiner recommends that the bond be reduced, then this court shall consider reducing the bond at that time. However, at the time the bond in the amount of $138,200 was set by this court in the order and judgment, this court was required to take into account the balances in the IP's bank accounts as reported to this [*4]court at the time of the filing of the order and judgment, as well as any monthly income the guardian would be marshaling. Accordingly, the request for this court to reduce or waive the bond, is denied.

With respect to the guardian's request to reduce the court evaluator's fee, the guardian made no argument to support that request. Pursuant to Mental Hygiene Law §81.09, the court evaluator's fee is set by the court. Mr. Apicella submitted an affirmation of services rendered in serving as court evaluator in this case and this court determined that the proper amount to be awarded to him was $9,762.50. The guardian has failed to show why that amount is inappropriate and why it should be reduced. Therefore, the request to reduce the court evaluator's fee is denied.

With respect to the amount of $3,800 that the guardian paid to her attorney, Sandra Prowley, for legal services rendered, this court declines to approve said fees nunc pro tunc. The order and judgment signed by this court on January 26, 2010 clearly states at page 9 that Ms. Prowley's fees would be approved upon submission of an affirmation of legal services and a proposed order. (Exhibit P). Ms. Prowley never submitted an affirmation of legal services to this court in support of the amount of her requested fees. Moreover, with her instant application that her fees be approved nunc pro tunc, Ms. Prowley still failed to submit her affirmation of legal services.

In, In re Enid B., 7 AD3d 704 (2nd Dept. 2004), the court held that in determining what is a reasonable attorney's fee, the court should consider, "...(1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented, (2) the attorney's experience, ability, and reputation, (3) the amount involved and the benefit flowing to the ward as a result of the attorney's services, (4) the fees awarded in similar cases, (5) the contingency or certainty of compensation, (6) the results obtained, and (7) the responsibility involved." Id. at 704. Since Ms. Prowley failed to submit an affirmation of legal services, this court is unable to determine if the fees paid to her by the guardian using the IP's assets, without this court's permission, is appropriate. Therefore, the request for this court to award Ms. Prowley fees in the amount of $3,800 nunc pro tunc, is denied until such time as Ms. Prowley complies with the order and judgment and submits to this court an affirmation of legal services rendered along with a proposed order.

The foregoing constitutes the decision and order of this court.

Date:April 27, 2010

J.S.C.