This Decision and Order addresses a petition seeking an order, among other things, to establish a Medicaid qualifying pooled trust account on behalf of E.S. This Decision and Order also addresses two fee requests submitted by the respective guardians in these matters. The court will provide some background of the related captioned matters to place this Decision and Order in context.

S.S. and E.S. are mother and daughter, respectively. The Commissioner of Broome County Department of Social Services ("DSS") previously filed two separate Article 81 petitions seeking the appointment of a guardian of the person and property of both S.S. and E.S. Interested persons in both proceedings included L.E.G., S.S.'s daughter (and sister of E.S.), and J.E., S.S.'s [*2]grandson (and nephew of E.S.), as well as S.H.B., the niece/cousin of the S.S. and E.S., and J.H., S.S.'s sister (and E.S.'s aunt). The court held hearings on both petitions and determined that guardians of the property, not person, were appropriate regarding both S.S. and E.S., and all cross-petitions were denied.

With respect to E.S., the court appointed Karen J. McMullen, Esq. as Guardian of the Property of E.S., confirmed by an Order and Judgment dated September 13, 2022. In connection with said proceeding to appoint a guardian, the court appointed Mental Hygiene Legal Service (3d Dept), A. Laura Bevacqua, Esq., as counsel to represent E.S.

In the related matter concerning S.S., E.S.'s mother, heard concurrently with the above-captioned matter, the court appointed Debra J. Cohn, Esq. as Guardian of the Property of S.S., confirmed by Order and Judgment dated September 13, 2022. Ms. Cohn had previously been appointed by the court as court evaluator in this matter. William M. Thomas, Esq. was appointed by the court as counsel to represent S.S.

On June 1, 2023, Ms. Bevacqua filed this petition in the E.S. matter seeking an order authorizing: (1) the creation and funding of a Medicaid qualifying pooled supplemental needs trust subaccount on behalf of E.S. managed and administered by NYSARC, Inc.; (2) authorizing Karen J. McMullen, Esq. to sign the Joinder Agreement, as Guardian of the Property of E.S., for submission to NYSARC, Inc.; (3) authorizing Debra J. Cohn, Esq. as Guardian of the Property of S.S., to remit the sum of $26,588.22 to the NYSARC Inc., Community Trust 1 pooled supplemental needs trust for the benefit of E.S.; and (4) ordering the remainder of the funds in the IOLA account be deposited into the guardianship account for S.S.

In other words, Ms. Bevacqua, as counsel for E.S., seeks court approval for a plan to split funds that were previously comingled between E.S. and S.S., and/or funds belonging to E.S. and/or S.S. that were held by L.E.G. and J.E., into their respective guardianship accounts. The petition indicates that the total amount of funds to be allocated is $116,284.32, consisting of $55,409.82 being held in Ms. Cohn's IOLA account; $54,000 in cash recovered from the S's home; and $6,874.50 remaining in the bank account held jointly by S.S., E.S., J.E., and L.E.G.

The petition requests court authorization to allocate amounts between S.S. and E.S. The petition also requests that the court allow Ms. McMullen, as Guardian for E.S., to sign the Joinder Agreement for E.S.'s funds to be placed into a NYSARC, Inc. pooled trust, as E.S. is a recipient of Medicaid and any receipt of funds on her behalf must not interrupt her receipt of benefits. The petition asks that the court allocate $26,588.22 of the amount held in the IOLA account to the NYSARC, Inc. Community Trust I for the benefit of E.S., and to release the remaining balance of $64,343.51 to the guardianship account held for the benefit of S.S.

The matter was originally made returnable on submission on June 16, 2023 but adjourned to June 30, 2023 at the request of Richard C. Lewis, Esq., counsel for L.E.G. and J.E. Mr. Lewis filed an affidavit on June 22, 2023, indicating that he has no opposition to the relief requested in the petition regarding the proposed allocation of funds. However, Mr. Lewis requests the court, based only on his own affidavit, replace the current court appointed Guardians of the Property of E.S. and S.S. and appoint J.E. as Guardian of the Property of E.S. and S.S., as well as a trustee.^[FN1]

Ms. Cohn filed an affidavit on June 22, 2023, joining Mr. Lewis's request to replace the current Guardians and appoint J.E. as Guardian of the Property of E.S. and S.S. Ms. Cohn details that she has worked with J.E. to provide grocery lists for the E.S. and S.S. and assisting S.S. to go to the doctor.

On June 27, 2023, Ms. McMullen filed an affidavit indicating she concurs with the proposed allocation of funds as stated in the application currently before the court. Ms. McMullen opposes Mr. Lewis' proposed inclusion of J.E. as a trustee of the (presumably) NYSARC trust which is proposed to receive the funds held for E.S.'s benefit. Ms. McMullen requests that the court direct who should be listed as an "authorized contact" on the Joinder Agreement to the creation of the trust for E.S.'s benefit. Ms. McMullen indicates that the family members of E.S. and S.S. are already able to and encouraged to help them accomplish their daily activities, especially pertaining to obtaining groceries, having repairs performed at the S's home, or ordering a new appliance.

Ms. Bevacqua filed a reply on June 23, 2023, asking the court to disregard the arguments and issues raised by Mr. Lewis and Ms. Cohn in their replies. Mr. Thomas, on June 26, 2023, submitted a letter joining in Ms. Bevacqua's position regarding the application currently pending before the court.

The matter was ultimately returnable on June 30, 2023, and all parties who were to receive notice received proper notice of this application. This Decision and Order, issued in the related matters of E.S. and S.S., now follows.

The petition filed by Mental Hygiene Legal Service (3d Dept) regarding the allocation of the $116,284.32 in funds between E.S. and S.S. will be granted in its entirety. No party opposed the allocation or submitted any information to suggest alternative amounts allocable to S.S. or E.S. The court finds it is in the best interests of both S.S. and E.S. to have some finality to this aspect of their shared financial situations by the granting of this application. The funds will be allocated as $64,343.51 to S.S. and $26,588.22 to E.S.

Before proceeding further, the court notes that in addition to the submissions detailed above, the court also received and reviewed fee affirmations and time records from Debra J. Cohn, Esq. as Guardian of the Property of S.S. and from Karen J. McMullen, Esq. as Guardian of the Property of E.S. Whatever amounts the court awards for compensation to each Guardian will necessarily be paid first out of the amounts to be allocated herein to S.S. and E.S., so the court must determine the amounts of compensation for each Guardian before it can direct specific amounts to the NYSARC trust for E.S. and the guardianship account for S.S.

Generally, in an Article 81 proceeding, the court is called upon to set fees and direct their sources of payment. The legal fee analysis in those proceedings is based upon the fair and reasonable value of the services rendered (Matter of Spingarn, 164 Misc 2d 891 [Sup Ct, New York County 1995]; Matter of Potts, 213 AD 59 [4th Dept 1925], affd 241 NY 593 [1925]). The criteria to be used by the court in reviewing and setting the fee include: the nature of the services rendered; the size of the estate; the skill and responsibility of the lawyers; their [*3]experience and reputation; the results obtained; the time spent; and the customary fee for such services (Matter of Freeman, 34 NY2d 1 [1974]; Matter of Gutchess, 117 AD2d 852 [3d Dept 1986], lv denied 68 NY2d 609 [1986]). The burden of establishing the reasonableness and value of legal fees lies with the attorney requesting the fee (Potts, 213 AD 59). The setting of attorney fees lies within the sound discretion of the court (Freeman, 34 NY2d 1; Matter of Greatsinger, 67 NY2d 177, 181 [1986]). The court's determination and exercise of its discretion "[w]ill not be interfered with unless it is so manifestly wrong as to indicate [an] abuse of power" (Matter of Rose BB., 35 AD3d 1044, 1045 [3d Dept 2006] [internal quotations and citations omitted]). The court has analyzed the fee requests and time records submitted by each Guardian in regard to the factors identified hereinabove.

Karen J. McMullen, Esq., as Guardian of the Property of E.S., submitted an affirmation seeking an award of $5,641.10 for work completed as Guardian from January 1, 2023 through June 1, 2023. The court will award Ms. McMullen the $5,641.10 she has requested, based on the results obtained, the conservative amount of time documented that she spent in assisting Mental Hygiene Legal Service (3d Dept) in getting this application prepared and submitted, and her experience and skill in handling Article 81 matters.

The court next turns to the application of Debra J. Cohn, Esq., as Guardian of the Property of S.S., who submitted a fee affirmation seeking an award of compensation for work completed from October 1, 2022 through June 13, 2023, for a total request of $25,894.48 for her compensation (which includes $34.48 in disbursements). The court is compelled to reduce the amount of compensation requested by Ms. Cohn. In the first instance, the court acknowledges that Ms. Cohn is a local practitioner who is experienced in Article 81 matters, and she has clearly spent a considerable amount of time assisting S.S. since her appointment. The court notes, however, that Ms. Cohn was paid $16,230.57 for her work completed as court evaluator in this matter before she was converted to act as Guardian of the Property of S.S. Further, while taking all the factors into consideration, the court is particularly mindful of the relatively modest size of S.S.'s guardianship estate.

The court finds that a reduction in Ms. Cohn's fees is warranted by the size of the estate relative to the request being made and the amount already paid to Ms. Cohn. For instance, adding the amount already paid to Ms. Cohn ($16,230.57) to the amount of $64,343.51 to be allocated to S.S. would equal an estate for S.S. of $80,574.08. Taking Ms. Cohn's requested fee of $25,894.48 (as Property Guardian) and adding it to the previously paid amount to Ms. Cohn of $16,230.57 (as court evaluator) would mean that Ms. Cohn would receive a total of $42,125.05, which is more than half of the amount recovered for S.S. ($80,574.08). The court finds that the size of the current estate ($80,574.08 - $16,230.57 = $64,343.51) relative to the amount of fees already paid ($16,230.57) and now requested ($25,894.48) compel a reduction in the amount of compensation it will award to Ms. Cohn. The court will award Ms. Cohn the amount of $15,000.00 for compensation and disbursements as Guardian of the Property of S.S. The court makes this reduction with no criticism whatsoever of the work performed by Ms. Cohn, which was necessary and based on the needs of her ward, and mindful of the fact that the court relies on skilled attorneys like Ms. Cohn to accept appointments from the court in these challenging cases.

Based on the foregoing, the court finds that from the total amount currently held in Ms. Cohn's IOLA account, the gross amount of $26,588.22 is allocable to E.S. From that amount, $5,641.10 shall be paid to Karen J. McMullen, Esq. for her services as Guardian of the Property [*4]of E.S. The net amount of $20,947.12 shall be remitted by Ms. Cohn to the NYSARC Inc. Community Trust I pooled supplemental needs trust for the benefit of E.S., and Ms. McMullen shall have the authority to sign the Joinder Agreement on E.S.'s behalf.

Of the total amount in the IOLA account, the remaining balance of $64,343.51 shall be allocable to S.S. From that amount, Ms. Cohn shall pay to herself the amount of $15,000.00 for her services as Guardian of the Property for S.S. After that payment, the net amount of $49,343.51 shall be remitted by Ms. Cohn to a guardianship account held for the benefit of S.S.

It was and remains the court's expectation that the work performed by each Guardian in these matters was front-loaded up to the point of this application. Moving forward, E.S. may no longer require the assistance of a property guardian, as all her funds are preserved in the trust or handled by Catholic Charities as her representative payee. Similarly, S.S. may require less assistance from her Property Guardian, and the court concurs with the points raised by Ms. McMullen in her reply, particularly Ms. McMullen's encouragement that family members continue their assistance for S.S. in achieving her daily activities of daily living (e.g., grocery shopping, lawn mowing, light housekeeping) without legal authority regarding her finances. The existence of these property guardianships in no way obviates the opportunity and need for family members like J.E. and L.E.G. to provide non-financial support and assistance to the S family. To the extent that J.E. and L.E.G. spend any of their own money to help the Ss with groceries or other daily items, either may submit for reimbursement to the respective Guardians and/or trustee moving forward.

As for the request by Mr. Lewis, on behalf of L.E.G. and J.E., and supported by Ms. Cohn, for a change in the guardianships — whether for the appointment of a new guardian or the discharge of a guardian based on the need no longer existing after this application — this would require the filing of a proper petition, on notice to those individuals who receive notice of further proceedings. The court declines to engage with any of the issues raised or requests made regarding a change in the guardian appointment in the responses filed by Mr. Lewis or Ms. Cohn.

This decision constitutes the order of the court.

Now, therefore, in view of the foregoing, it is hereby

ORDERED, that the petition filed by Mental Hygiene Legal Service (3d Dept) on June 1, 2023, is granted in its entirety; and it is further

ORDERED, that the requests made by Richard Lewis, Esq. and Debra J. Cohn, Esq. for the appointment of J.E. as guardian of the property for S.S. or E.S. are denied without prejudice; and it is further

ORDERED, that Karen J. McMullen, Esq. is authorized as Guardian of the Property of E.S. to sign the pooled supplemental needs trust subaccount Joinder Agreement to the NYSARC, Inc. on behalf of E.S.; and it is further

ORDERED, that Karen J. McMullen, Esq. is authorized as Guardian of the Property of E.S. to list Karen J. McMullen, Esq. as an authorized contact for the NYSARC pooled trust created for the benefit of E.S.; and it is further

ORDERED, that the court awards the sum of $15,000.00 as compensation to Debra J. Cohn, Esq. as Guardian of the Property of S.S. for work completed through June 13, 2023, and Debra J. Cohn, Esq. shall pay that amount to herself from the funds currently held in her IOLA [*5]account; and it is further

ORDERED, that the court awards the sum of $5,641.10 as compensation to Karen J. McMullen, Esq. as Guardian of the Property of E.S. for work completed through June 1, 2023, and Debra J. Cohn, Esq. shall pay that amount to Karen J. McMullen, Esq. from the funds currently held in her IOLA account; and it is further

ORDERED, that Debra J. Cohn, Esq. shall remit $20,947.12 to the NYSARC, Inc. Community I pooled supplemental needs trust for the benefit of E.S.; and it is further

ORDERED, that Debra J. Cohn, Esq. shall remit $49,343.51 to a guardianship account held for the benefit of S.S.; and it is further

ORDERED, that while the files in these related matters remain sealed, this Decision and Order is not sealed insofar as Karen J. McMullen, Esq., as Guardian of the Property of E.S., and/or Debra J. Cohn, Esq., as Guardian of the Property of S.S., and/or counsel of record may disclose this Decision and Order as needed to effectuate the terms of this Decision and Order.