When clients ask whether they can “sue for legal fees,” the courts continue to reiterate that the answer is almost always no; that the American Rule still controls. In our latest post, Frank Santoro discusses recent decisions in the contexts of trusts and estates litigation and guardianship litigation that speak to fee shifting and exceptions to the American Rule.
Continue Reading The Answer is Almost Always No
Given the travel restrictions that have arisen during the COVID-19 pandemic, it is unlikely that many recently-commenced adult guardianship proceedings have led to jurisdictional disputes in courts in different states. Pre-pandemic, however, in anticipation of commencing adult guardianship proceedings, parties moved the subjects of those proceedings from one state to another, presumably to gain a strategic advantage in forthcoming guardianship disputes. In Matter of J.D.S., New York County Surrogate Rita Mella rendered what appears to be the first reported decision addressing whether a court in New York, or another state, was the appropriate forum for a guardianship dispute concerning a person under a disability. Rob Harper discusses the decision in our latest post.
Continue Reading The Resolution of Interstate Adult Guardianship Disputes in New York
This is a common question from clients involved in litigation – – especially estate litigation. As a general rule, a party cannot recover attorney’s fees for successfully prosecuting or defending a lawsuit. This is the “American Rule,” and it is engrained in our legal system. New York courts are wary of deviating from the American
In two recent decisions, Surrogate Lopez Torres of Kings County denied petitions for guardianship under SCPA Article 17-A, demonstrating the strict circumstances under which guardians are appointed under this particular statute. Unlike under Article 81 of the Mental Hygiene Law, the court has no discretion or authority to limit or tailor the powers of a guardian under Article 17-A. Thus, in both proceedings, the court was quite cognizant of the fact that an Article 17-A guardianship is the most restrictive form of guardianship available in New York. Hillary Frommer discusses the decisions in our latest entry.
Continue Reading Article 17-A Guardianship: It is Not for Everyone
This week, Robert Harper discusses the circumstances under which a marriage may be revoked in the context of an Article 81 guardianship proceeding.
Continue Reading Revoking Marriages in Article 81 Proceedings
This week, Jaclene D’Agostino discusses a recent decision from New York County that has the potential to substantially impact the future of guardianship proceedings in Surrogate’s Courts.
Continue Reading Court Cites Flaws in Article 17-A in Denying Guardianship Application