Opinion
xx15
11-15-2011
In the Matter of the Funding of a Supplemental Needs Trust for the Benefit of Daniel J. v. , a Mentally Retarded Person
Hartmann Doherty Rosa Berman & Bulbulia, LLC (Naim D. Bulbulia, Esq., of Counsel) for John P. Valenti, petitioner.
Hartmann Doherty Rosa Berman & Bulbulia, LLC (Naim D. Bulbulia, Esq., of Counsel) for John P. Valenti, petitioner.
, J.
This is a proceeding by the SCPA Article 17-A guardian of the person and property of the respondent to establish and fund a supplemental needs trust (SNT) for the ward's benefit with funds that were bequeathed to the ward by his godmother. The citation and petition specifically request that the application be granted nunc pro tunc to October 26, 2010, the return date of an order to show cause and petition in the Supreme Court, Bronx County seeking to establish an SNT for the ward's benefit, in order to recoup on behalf of the ward suspended or terminated Medicaid and Social Security Income (SSI) benefits. Counsel for the petitioner requests a final payment of $2,514.12, representing the balance of the legal fee of $6,000 pursuant to an alleged flat fee arrangement, for all time spent in the various proceedings at issue, including SNT applications, plus $514.12 in costs and expenses. Jurisdiction was obtained over the ward, the City of New York Human Resources Administration and the Attorney General of the State of New York, and there was no appearance in opposition.
The record reveals that prior to the commencement of any guardianship proceedings in this court, the petitioner, the ward's brother, filed an order to show cause and petition in the Supreme Court, Bronx County, returnable October 26, 2010, seeking to establish an SNT for the ward. That court denied the SNT application apparently on the ground that a guardian of the property should be appointed for Daniel J. V. prior to the establishment of an SNT.
On January 6, 2011, the petitioner filed an SCPA Article 17-A application seeking letters of guardianship of Daniel's person only, failing to indicate in that petition that the ward had property. After a hearing on that application on April 21, 2011, by decree signed on May 4, 2011 this court determined that the ward was a mentally retarded person within the meaning of SCPA Article 17-A (see Matter of Daniel J. V., NYLJ, May 9, 2011, at 22). That determination was made based on the proof at the hearing which included, inter alia, certifications by two licensed physicians, one of whom based his findings on a June 1, 2010 examination of the ward. Thereafter, the petitioner filed an amended petition seeking letters of guardianship of the property of the ward so that he could proceed with an SNT application. By decree entered October 13, 2011, this court appointed the petitioner guardian of the property of the ward.
The SNT application indicates that the ward was bequeathed $88,027.39 by his godmother and the petitioner, without explaining how he obtained the bequest, had been holding it for the ward, but in the interim between the application to the supreme court returnable October 26, 2010 and the petitioner's appointment as guardian of the ward's property, the ward's Medicaid and SSI benefits were terminated. Also during that same time the ward was hospitalized and, as a result of expenditures for that hospitalization, only $39,681.14 now remains of the original $88,027.39 bequest. As a result, the petitioner requests that the SNT be deemed effective nunc pro tunc to October 26, 2010, the return date of the original SNT application to the supreme court, in order to recoup the suspended/terminated benefits.
In the absence of any opposition, and it appearing that Daniel J. V. is a person with a severe and chronic or persistent disability, in that his disability is expected to, and does, give rise to a long-term need for specialized health, mental health, developmental disabilities, social or other related services, and who may need to rely on government benefits or assistance, the application is granted (EPTL 7-1.12). Furthermore, it is clear from the certifications of the two physicians submitted as proof at the original hearing on the SCPA Article 17-A application, that the ward fell within the criteria of SCPA Article 17-A, if not since birth, at least since June 1, 2010, the date of his initial examination by a licensed physician. Consequently, as of June 1, 2010, the ward clearly lacked the capacity to seek and obtain the appointment of a guardian of his property to act on his behalf to create an SNT before his Medicaid and SSI benefits were terminated. Moreover, it is also clear that, at that time, he would have been entitled to a decree establishing and funding an SNT for his benefit. As an SNT could have been established for the ward's benefit had a duly appointed guardian of his property been appointed by June 1, 2010, if not before, and the ward lacked the capacity to make such a request on his own behalf, the SNT application is approved nunc pro tunc to the requested date of October 26, 2010 (see Matter of Miller, 20 Misc 3d 1111 [A], 2008 NY Slip Op 51314 [U] [2008]). The express purpose of an SNT is to permit a person such as the ward to have the trust assets available for those needs that are not covered by Medicaid without affecting his Medicaid eligibility. It would defeat the spirit of EPTL 7-1.12, if not also its express provisions, to deny its benefits to the ward based on a bequest which he lacked the capacity to obtain prior to incurring expenses covered by Medicaid and where no other person at that time was authorized to apply for an SNT on his behalf (see id.).
A review of the request for the balance of the legal fee and the time sheets submitted by petitioner's counsel reveals at least three and one-half hours of legal fees charged for time spent drafting, conferencing, submitting and checking on the status of the order to show cause and petition made to the supreme court at a time when the petitioner lacked standing as he had not been appointed guardian of property of the ward at that time. Accordingly, the court reduces the requested balance of legal fees from $2,514.12 to $1,553.80, in order to eliminate any legal fees for that application, and counsel is to be paid from the ward's funds the sum of $1,553.80 for the balance of legal fees plus the requested disbursements of $514.12.
Pursuant to paragraph 4.2 of the SNT, a bond shall be posted in the amount deposited in the SNT. Notwithstanding the default of the City of New York Human Resources Administration in this proceeding, the proposed decree together with a copy of the executed SNT shall be settled upon it.
Proceed accordingly.
SURROGATE