Matter of MG, 57 N.Y.2d 624 (1982)

In the absence of specific statutory authority, counsel fees are incidents of litigation and not compensable from the conservatorship estate in conservatorship proceedings under Article 77 of the Mental Hygiene Law.

Summary

This case addresses whether counsel fees can be awarded to the petitioner in a conservatorship proceeding under Article 77 of the Mental Hygiene Law. A niece initiated the proceeding for her 82-year-old aunt, alleging senility and financial exploitation by her husband. The trial court appointed a conservator and awarded the petitioner’s counsel fees and disbursements. The Court of Appeals reversed the fee award, holding that Article 77 lacks specific statutory authority for such fees, distinguishing it from commitment proceedings under Article 78 where such fees are expressly authorized. The court emphasized that this omission was deliberate, considering the legislative history and analogous provisions in the Uniform Probate Code.

Facts

A niece filed a petition for conservatorship over her 82-year-old aunt, claiming the aunt was senile and unable to manage her affairs and that the aunt’s 86-year-old husband was taking her assets. The conservatee and her husband contested the petition. The court designated a guardian ad litem. Eventually, an agreement was reached to appoint the guardian ad litem as conservator. The trial court found substantial impairment after a psychiatrist examined the proposed conservatee. The petitioner’s attorney sought counsel fees and disbursements, which were opposed by the conservatee and her husband.

Procedural History

The trial court awarded the petitioner’s counsel a fee of $5,000 and disbursements of $1,378.47. The conservatee and her husband appealed the fee award. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal to consider the authority to award counsel fees in conservatorship proceedings.

Issue(s)

Whether the court has the authority to award counsel fees to the petitioner in a conservatorship proceeding brought under Article 77 of the Mental Hygiene Law, absent specific statutory authorization within Article 77 itself.

Holding

No, because Article 77 of the Mental Hygiene Law does not contain any provision authorizing the award of counsel fees to the petitioner in a conservatorship proceeding. This omission was deliberate, and courts cannot imply such a power in the absence of express statutory language.

Court’s Reasoning

The Court of Appeals relied on the established principle that counsel fees are generally not compensable unless specifically authorized by statute, stating that “[i]t is well established that in the absence of specific statutory authority counsel fees “are merely incidents of litigation and thus are not compensable”. Article 77 lacks such authorization. The court noted that Article 77 was the result of extensive study and revisions, and its drafters were aware of provisions in the Uniform Probate Code that explicitly allowed for compensation of attorneys in conservatorship proceedings. The express provision for counsel fees in commitment proceedings under Article 78 (§ 78.03, subd [h], par 2) further indicated that the omission in Article 77 was intentional. The court dismissed the argument that the general powers granted to a conservator under § 77.19 implied the power to award counsel fees, emphasizing that the issue was the court’s power to award fees, not the conservator’s powers. The court stated: “Courts cannot correct supposed errors, omissions or defects in legislation.”