If a petition to appoint a guardian is dismissed in a Mental Hygiene Law (MHL) Article 81 proceeding, the statute on its face permits the court to direct the petitioner to pay the fees of the Court Evaluator and Court-Appointed Counsel to the Alleged Incapacitated Person (AIP). The statute says nothing about the petitioner’s motives. It sets forth no requirement that there be an absence of bad faith before authorizing the court to require petitioner to pay.
However, case law carves out a safe harbor for petitioners. Where a petition is dismissed or withdrawn, a finding of bad faith is required before the court is authorized to direct the petitioner to pay compensation to the Court Evaluator or Court-Appointed Counsel for the AIP.
Continue Reading Article 81 Provides Fee Shifting Safe Harbor for Petitioners Acting in Good Faith