ADDITIONAL CASESIn the Matter of the funding of a Pooled Trust for the benefit of Robert B., a SCPA 17-A Person; 2015-995/A In this uncontested application, the administrator, one of the decedent’s sons, who is also the guardian of the person and property of the respondent, another son who is under a disability (see Matter of Robert B. (See Matter of Robert B., NYLJ, Dec. 9, 2015 at 26, col 1 [Sur Ct, Bronx County 2015]), seeks a final decree directing the transfer of the remaining settlement proceeds of a cause of action for the decedent’s personal injuries into the respondent’s NYSARC, Inc. Community Trust 1 account established on December 5, 2012 and an award of counsel fees and disbursements for legal services rendered herein. Pursuant to an interim decree dated May 23, 2016, the respondent’s distributive share of the settlement proceeds is being held by the settling defendant until further order of this court (see Matter of Batista, NYLJ, Apr. 27, 2016 at 27, col 5 [Sur Ct, Bronx County 2016]). Jurisdiction was obtained over the respondent, the guardian ad litem appointed for him in the prior proceeding, Mental Hygiene Legal Service, First Department, New York City Human Resources Administration, the director of the ward’s residential facility, trial counsel and the settling defendant, and there was no appearance in opposition.In support of the application, the petitioner alleges that it was not until he retained separate elder law counsel to establish a supplemental needs trust for the respondent that it was discovered that a pooled trust account was established by the ward and the residential facility by agreement dated December 5, 2012, over three years prior to the interim decree directing the ward’s share of the personal injury proceeds to be marshaled. He urges that, since the respondent receives Medicaid benefits, those proceeds should be expeditiously paid and placed in that pooled trust account so that the respondent remains eligible to receive those benefits and additional benefits from expenditures for supplemental services and personal needs from that account.Petitioner’s counsel filed an affirmation of legal services stating, inter alia, that 5.75 hours were spent in preparing and filing the documents for this application, at an average hourly rate of $350, and he seeks an additional $3,000 for anticipated services “appearing on the return date of citation, drafting any required orders and setting up the pooled trust with NYSARC.” He seeks an additional $210 for the filing fee herein.It appears that the services performed by the elder law counsel concerning the pooled trust were necessitated by the lack of knowledge concerning the respondent’s NYSARC account. However, the court cannot award fees for services not yet performed and notes that trial counsel is responsible to secure the payment of the remaining settlement proceeds. It is the responsibility of trial counsel to continue to serve as attorney for the estate until the entry of a final decree in this court without seeking additional compensation (see Matter of Sunkin, NYLJ, Feb. 2, 2005, at 29, col 2 [Sur Court, Bronx County 2005; Matter of Truong, NYLJ, Apr. 12, 2000, at 33, col 5 [Sur Ct, Bronx County 2000]). Accordingly, estate counsel is allowed the sum of $2,210 for all services rendered in this proceeding and $210 for the filing fee herein, as established by its submissions. The denial of the additional fee for services requested by elder law attorney is without prejudice to its right, if any, to seek payment from the litigation attorney, who was primarily responsible for insuring that this matter proceeds to final decree.In the absence of any opposition, and it appearing to be the respondent’s best interest, the application is granted. After payment of the sum of $2,210 allowed to petitioner’s counsel in reimbursement of disbursements and for all services rendered and to be rendered in connection with this proceeding, the settling defendant shall pay the remaining settlement proceeds to the respondent’s NYSARC, Inc. Community Trust 1 account established on December 5, 2012.Settle decree.
