SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial
Department
Pursuant to the
authority conferred by law upon the Appellate Division of
the Supreme Court of the State of New York for the Fourth
Judicial Department, it is
ORDERED, that,
effective August 1, 2007, section 1022.32 of Title 22 of the
Official Compilation of Codes, Rules and Regulations of the
State of New York is repealed and replaced in its entirety
as follows:
1022.32 -
EXAMINERS OF REPORTS OF GUARDIANS, COMMITTEES AND
CONSERVATORS PURSUANT TO ARTICLE 81 OF THE MENTAL HYGIENE
LAW
(a)
Appointment of Court Examiners.
(1) Appointment. On or before
September 1 of each year, the Presiding Justice shall
appoint, for each County within the Appellate Division,
Fourth Department, examiners of the reports of guardians, as
well as the reports of committees and conservators appointed
prior to April 1, 1993.
(2) Eligibility.
(i) Only persons who have satisfied training and
education requirements approved by the Presiding Justice
shall be appointed as court examiners.
(ii) Court examiners shall maintain compliance with 22
NYCRR part 36.
(b)
Duties of Court Examiners.
(1) Generally. In examining the
report of a guardian, committee or conservator, the court
examiner shall ascertain whether a guardian, committee or
conservator has completed a timely and complete report as
required by article 81 of the Mental Hygiene Law; whether a
guardian, committee or conservator has complied with the
order of appointment; and whether a guardian, committee or
conservator has satisfied the duties set forth in Mental
Hygiene Law § 81.20.
(2) Initial Reports. With respect to an
initial report of a guardian, the court examiner shall file
a report within 30 days of the filing of the guardian's
report.
(3) Annual Reports. With respect to an
annual report of a guardian, committee or conservator, the
court examiner shall file a report within 30 days of the
filing of the report of the guardian, committee or
conservator.
(4) Filing Requirements.
(i) The court examiner shall file the court examiner's
report in the office of the clerk of the court that
appointed the guardian, committee or conservator, with proof
of service of the report on the guardian, committee or
conservator.
(ii) Within 10 days of the filing of the court
examiner's report, the court examiner shall file a copy of
the report with the Clerk of the Appellate Division, Fourth
Department, together with proof of the filing and service
required by 22 NYCRR 1000.32 (b) (4) (i).
(5) Untimely and Incomplete Reports. In
the event that a guardian, committee or conservator fails to
file a timely report or files an incomplete report, the
court examiner shall serve the guardian, committee or
conservator with a demand for the report and shall take such
actions as are necessary to compel compliance, pursuant to
Mental Hygiene Law § 81.32 (c) and (d).
(6) Examination Under Oath. The court
examiner may examine a guardian, committee, conservator or
other witness under oath and reduce the testimony to
writing.
(7) Forms. For court examiner reports,
the court examiner shall use forms designated by the
Appellate Division, Fourth Department.
(c)
Compensation.
(1) Initial Reports. For the examination
of an initial report, a court examiner is entitled to a fee
of $100, together with reimbursement for reasonable and
necessary disbursements.
(2) Annual Reports. For the examination
of an annual report, a court examiner is entitled to
reimbursement for reasonable and necessary disbursements and
a fee fixed pursuant to the following fee schedule:
| Closing
balance of Estate examined |
Fee |
| $5,000
and under |
$150 |
| $5,001 -
$25,000 |
$200 |
| $25,001
- $50,000 |
$250 |
| $50,001
- $100,000 |
$300 |
| $100,001
- $150,000 |
$400 |
| $150,001
- $225,000 |
$500 |
| $225,001
- $350,000 |
$600 |
| $350,001
- $500,000 |
$700 |
| $500,001
- $750,000 |
$800 |
| $750,001
- $1,000,000 |
$900 |
| Over
$1,000,000 |
$1,000 |
(3) The fee shall be calculated on the net value of
the estate at the close of the calendar year for which the
annual report has been filed. Upon a showing of
extraordinary circumstances, a fee in excess of the fee
fixed by the schedule may be rewarded.
(4) An application for a fee for an estate with a
value of $5,000 or less shall be made by standard voucher
and shall be approved by the Presiding Justice or the
designee of the Presiding Justice.
(5) An application for a fee for an estate with a
value of more than $5,000 shall be set forth in the report
of the court examiner and shall be approved by order of the
Presiding Justice for payment by the estate. The court
examiner shall serve a copy of the order approving payment
on the guardian, committee or conservator, and shall file a
copy of the order with the clerk of the court that appointed
the guardian.
(6) A guardian, committee, or conservator may apply to
the Presiding Justice for review and reconsideration of any
fee on the ground of excessiveness. Such application
shall be in writing and shall be made within 20 days of
service by the court examiner of the order directing payment
of the fee from the estate.
(d)
Transition.
(1) The appointment of any court examiner, appointed
pursuant to former 22 NYCRR 1022.32, due to expire on March
31, 2008, shall be continued to August 31, 2008.
DATED AND
ENTERED: Rochester, New York
June 29, 2007
