Exempts certain guardianship motions filed under article 81 of the mental hygiene law from the filing fee required to be paid to the county clerk

Justification

In 2003, as part of the State Budget Bill S.1406-B/A.2106-B, New York State implemented a $45 fee for filing civil motions. Only motions seeking leave to proceed as an indigent person were exempted from the mandate. The fee was one of the measures established to provide additional revenue to support hourly rate increases for assigned counsel appointed under Article 18-B of the County Law, the Court Facilities Incentive Aid Fund, as well as to provide fiscal relief to the "Big Six" cities and the General Fund. While the revenue-raising objective of motion fees is clearly justifiable, a fair case can be made that such fees should not apply to motions filed by those appointed by the court in guardianship cases under New York State Mental Hygiene Law Article 81.

In the memorandum in support of Budget Bill S.1406-B/A.2106-B, ultimately codified as Section 25 of Part J of Chapter 62 of the Laws of 2003, one of the arguments for the establishment of a motion fee is "those who consume more of the judicial system's resources should pay accordingly." However, that rationale appears inapplicable to guardianship cases under Article 81 of the New York State Mental Hygiene Law. Since New York State has an interest in ensuring that its most vulnerable citizens' needs are met, a party appointed as a fiduciary in a guardianship matter is performing a valuable service, not just to the incapacitated person or subject of the guardianship proceeding, but also to the State. There is a strong case that the requirement of a fee for a motion by a guardian, court-appointed attorney serves as a disincentive to accept such appointments and to assist those most in need, and that such fees penalize incapacitated persons, those whom Article 81 was enacted to protect.

In MATTER OF RICHTER , NYLJ, Nov. 14, 2003, at 19, col 1 (Supreme Court, Queens County), Justice Charles J. Thomas reasoned that "the inevitable result of requiring fees from a guardian, guardian ad litem, court evaluators or other individuals performing similar functions, would be the wholesale refusal.. .to accept such appointments, causing the entire guardianship part to grind to a frightening halt. This cannot be allowed to happen." In that decision, Justice Thomas ruled that"...all motions or cross motions made by a Guardian, Guardian ad Litem, court appointed attorney, or court evaluator must be exempt from the payment of fees" and that "the Clerk of Queens County is directed to accept for filing any such motions, cross motions or stipulations of settlement, without the payment of any fee imposed by Chapter 62 of the Laws of 2003."

However, a subsequent case by another Queens County Supreme Court Justice, Janice A. Taylor, overruled RICHTER .ct. IN MATTER OF FICALORA , 2003 NY Slip Op 23873 (December 1, 2003, Supreme Court, Queens County), Justice Taylor ruled that"...carving a substantive and categorical exclusion out of the statute, no matter what the practical or policy motivations behind it, is simply ULTRA VIRES , beyond this Court's allocated role in the distribution of lawmaking authority, and is...the functional equivalent of lawmaking." In that case, an attorney appointed as Special Guardian solely to apply for Medicaid for an incapacitated person sought to be discharged. In reliance upon the RICHTER decision, she filed a motion seeking discharge without payment of the $45 motion fee. She was ultimately required to pay, as the Court found that "the acceptance for filing of motions in guardianship proceedings, such as that at bar, without the payment of a requisite fee contravenes the express language of the statute..."

Not only was the waiver of fees by the Court in Article 81 guardianship cases deemed by FICALORA to be beyond the judicial branch's scope of authority, the decision went on to say that "if an exception for court-appointed fiduciaries in guardianship proceedings was intended, or is desired, by the legislature, then this Court calls upon the legislature to act to amend CPLR §8020 (a) to provide for such exemptions." Therefore, an amendment to the Civil Practice Law and Rules (CPLR) §8020 (a), the section of the statute incorporating the motion fee requirement, is proposed in this legislation. The instant bill expressly exempts motions by the fiduciary, court evaluator, guardian ad litem, court-appointed attorney or by the court examiner in any guardianship matter under Mental Hygiene Law (MHL), Article 81 proceeding.

A case can be made that requiring court appointees in MHL Article 81 matters, especially guardians and court examiners, to pay a fee for each motion imposes a financial penalty that burdens the very same people the court proceeding seeks to protect--incapacitated persons, e.g., elderly, disabled, and infants. After the appointing process, the incapacitated person becomes a ward of the Court for his or her lifetime. There are myriad motions that must be regularly made, including those requesting increase and/or decrease of guardianship powers, purchase or sale of real property, the appointment of a successor guardian, approval of a budget, purchase of a van for a handicapped person, payment of an extraordinary bill, transfer of a person to a nursing home, increase or decrease of a bond, appointment of counsel, approval of medical treatment, and settlement of final accounting. Many of the issues and decisions that most of us make in the course of our daily living require filing motions for Court involvement in the case of incapacitated persons.

In addition, many court appointees must expend time and effort filing the motion in person. The cost for such time and effort is often passed to the incapacitated person's estate, further affecting the financial impact to these most vulnerable individuals.

The memorandum in support of the legislation implementing motion fees (Budget Bill S.1406-B/A.21O6-B of 2003), points out that a number of other states impose such fees. However, at least one state, Minnesota, specifically excludes guardianship and child support cases. That state's motion fee requirement, which became effective on July 1, 2003, thirteen days before New York State's, was also established to address budgetary issues. However, the Minnesota legislature clearly considered cases involving residents most needing protection, i.e., incapacitated persons and children, to require exclusion from the motion fee statute.

A similar exemption is in order in New York State. Those who are appointed by the Court to protect the interests of the State's incapacitated persons are performing a valuable function, and should not be deemed to be among those who must "pay accordingly" for use of Court resources when their duties require that a motion be filed. Consequently, an amendment to the CPLR exempting fiduciaries, court evaluators, guardians ad litem, court-appointed attorneys and court examiners from motion fees would be good law based on sound public policy.

Legislative history

New Proposal.

Fiscal implications

To Be Determined.

Local fiscal implications

To Be Determined.

Effective date

Immediately.