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Attorney Performing Legal and Guardianship Services for Ward May Be Paid from SNT
A New York appeals court rules that a guardian who is also an attorney and performs services in a dual capacity for an incapacitated person may be paid for such professional services from the funds held in a special needs trust. In the Matter of the James H. Supplemental Needs Trusts (N.Y. App. Div., 3d, No. 531158, May 6, 2021).
James H. was an incapacitated person who suffered from throat cancer and mental illness and was the beneficiary of five special needs trusts (SNTs). In 2016, Kathleen Toombs, an attorney, was appointed as his guardian. She performed work as a layperson on James H.’s behalf, including shopping for his personal goods and groceries and handling his medical and financial needs. She also performed services as an attorney, removing James H.’s brother as trustee of three SNTs based on his failure to pay James H.’s medical bills and expenses timely or transfer James H.’s significant inheritance to him. She then sought compensation for her services. Her fee petition also included payment for the services of Nicholas E. Tishler, an attorney who was appointed as appellate counsel for James H. in connection with his brother’s unsuccessful appeal of the order removing him as trustee.
The Supreme Court, a trial court, authorized the payment of guardian fees to Ms. Toombs and legal fees to both Ms. Toombs and Mr. Tishler from the SNTs. The brother appealed, arguing that the payments should not be made from the SNTs and that the legal fees were neither warranted nor justified.
The Appellate Division of the Supreme Court of New York affirms. The court holds that the state’s Mental Hygiene Law authorizes it to approve a plan for reasonable compensation to a guardian, including counsel fees. However, because the law does not specify the source of such compensation, the court looks to the language of the SNTs that authorized compensation to attorneys for legal services provided to enhance James H.’s lifestyle. The court finds that Ms. Toombs’ services satisfied this definition. Further, the payments would not render James H. ineligible for receipt of government benefits because disbursements to third parties for professional fees do not count as income under the Social Security Administration’s POMS. Finally, the court determines that Ms. Toombs met her burden of proving that she had acted in a dual capacity and that the fees ordered to both attorneys were reasonable and appropriate.
A roundup of elder law news and practice development articles culled from news sources across the nation during the week of June 3, 2025, to June 9, 2025.
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Attorney Performing Legal and Guardianship Services for Ward May Be Paid from SNT
A New York appeals court rules that a guardian who is also an attorney and performs services in a dual capacity for an incapacitated person may be paid for such professional services from the funds held in a special needs trust. In the Matter of the James H. Supplemental Needs Trusts (N.Y. App. Div., 3d, No. 531158, May 6, 2021).
James H. was an incapacitated person who suffered from throat cancer and mental illness and was the beneficiary of five special needs trusts (SNTs). In 2016, Kathleen Toombs, an attorney, was appointed as his guardian. She performed work as a layperson on James H.’s behalf, including shopping for his personal goods and groceries and handling his medical and financial needs. She also performed services as an attorney, removing James H.’s brother as trustee of three SNTs based on his failure to pay James H.’s medical bills and expenses timely or transfer James H.’s significant inheritance to him. She then sought compensation for her services. Her fee petition also included payment for the services of Nicholas E. Tishler, an attorney who was appointed as appellate counsel for James H. in connection with his brother’s unsuccessful appeal of the order removing him as trustee.
The Supreme Court, a trial court, authorized the payment of guardian fees to Ms. Toombs and legal fees to both Ms. Toombs and Mr. Tishler from the SNTs. The brother appealed, arguing that the payments should not be made from the SNTs and that the legal fees were neither warranted nor justified.
The Appellate Division of the Supreme Court of New York affirms. The court holds that the state’s Mental Hygiene Law authorizes it to approve a plan for reasonable compensation to a guardian, including counsel fees. However, because the law does not specify the source of such compensation, the court looks to the language of the SNTs that authorized compensation to attorneys for legal services provided to enhance James H.’s lifestyle. The court finds that Ms. Toombs’ services satisfied this definition. Further, the payments would not render James H. ineligible for receipt of government benefits because disbursements to third parties for professional fees do not count as income under the Social Security Administration’s POMS. Finally, the court determines that Ms. Toombs met her burden of proving that she had acted in a dual capacity and that the fees ordered to both attorneys were reasonable and appropriate.
Attorney Performing Legal and Guardianship Services for Ward May Be Paid from SNT
<p>A New York appeals court rules that a guardian who is also an attorney and performs services in a dual capacity for an incapacitated person may be paid for such professional services from the funds held in a special needs trust. <a href="https://www.nycourts.gov/reporter/3dseries/2021/2021_02860.htm" target="_blank"><em>In the Matter of the James H. Supplemental Needs Trusts</em></a> (N.Y. App. Div., 3d, No. 531158, May 6, 2021).</p>
<p>James H. was an incapacitated person who suffered from throat cancer and mental illness and was the beneficiary of five special needs trusts (SNTs). In 2016, Kathleen Toombs, an attorney, was appointed as his guardian. She performed work as a layperson on James H.’s behalf, including shopping for his personal goods and groceries and handling his medical and financial needs. She also performed services as an attorney, removing James H.’s brother as trustee of three SNTs based on his failure to pay James H.’s medical bills and expenses timely or transfer James H.’s significant inheritance to him. She then sought compensation for her services. Her fee petition also included payment for the services of Nicholas E. Tishler, an attorney who was appointed as appellate counsel for James H. in connection with his brother’s unsuccessful appeal of the order removing him as trustee.</p>
<p>The Supreme Court, a trial court, authorized the payment of guardian fees to Ms. Toombs and legal fees to both Ms. Toombs and Mr. Tishler from the SNTs. The brother appealed, arguing that the payments should not be made from the SNTs and that the legal fees were neither warranted nor justified.</p>
<p>The Appellate Division of the Supreme Court of New York affirms. The court holds that the state’s Mental Hygiene Law authorizes it to approve a plan for reasonable compensation to a guardian, including counsel fees. However, because the law does not specify the source of such compensation, the court looks to the language of the SNTs that authorized compensation to attorneys for legal services provided to enhance James H.’s lifestyle. The court finds that Ms. Toombs’ services satisfied this definition. Further, the payments would not render James H. ineligible for receipt of government benefits because disbursements to third parties for professional fees do not count as income under the Social Security Administration’s POMS. Finally, the court determines that Ms. Toombs met her burden of proving that she had acted in a dual capacity and that the fees ordered to both attorneys were reasonable and appropriate.</p>
<p>For the full text of this decision, <a href="https://www.nycourts.gov/reporter/3dseries/2021/2021_02860.htm" target="_blank">click here</a>.<strong> </strong></p>
<p> </p>
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