Legal Question in Elder Law in New York

Guardianship question

My brother filed for guardianship and I cross petitioned and I was awarded guardianship of my mother's person and co-guardian with an attorney for her finances. In the Order Settlement it was signed by the Judge that my attorney get $9,000.00, but my brother attorney gets no money from my mother's finances.

Now 6 months later, somehow my brother got the Judge to resettle the case and now my mother is to give him $9,5000.00 for his legal fees for filing the guardianship case even though he didn't win his case to be guardian.

My question is: How could the Judge resettle the case? For 6 months I have been trying to get the co-guardian to agree to allow funds of my mother's to be used for her care, but she has refused.

Do I need to get ANOTHER attorney to straighten out this mess? The co-guardian has been very strict on giving me any money for my mother's expenses because my brother has been telling her all kinds of lies about me, I have been having to lay out the money for my mother's expenses and then I have a hard time getting the money back from the co-guardian. She keeps claiming that she doesn't owe me any money but I have the receipts to prove she does. Where do I go from here?

HELP!


Asked on 4/27/09, 12:21 pm

2 Answers from Attorneys
Lori Somekh Somekh & Associates

Re: Guardianship question

Regarding your first question, the court can award fees for your brother's legal fees as long as his application was brought in good faith - a good faith belief that your mom needed a guardian. With respect to your second question,you may want to contact the Court Examiner assigned to the case and see if he/she will address the issue of getting your expenses paid. If not, then you might seek counsel.

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Answered on 4/29/09, 7:20 am
Richard Bryan Richard Bryan Attorney PC

Re: Guardianship question

Yes that all makes sense; that's exactly how the system works. Everyone gets paid from mom's assets; it's a major problem with Guardianship matters. This expense could have been avoided if mom had completed a health care proxy and power of attorney; now it's a $30,000 affair. Very unfortunately, and I feel badly for you. This is so terribly common. All but for the cost of a couple of hundred dollars to see a lawyer for basic document preparation.

Yes, you absolutely need to get an attorney to file a motion to provide a monthly stipend and/or get expenses reimbursed, and or to advise you on why the co-guardian is doing what she is doing.

Good luck.

Rick Bryan

New York, NY

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Answered on 4/27/09, 1:29 pm


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