Michael S. Kutzin

Kutzin Speaks on Revocable Trusts for NYSBA

Michael S. Kutzin, a member of various practice groups, including our Guardianship Practice, Taxation and Trusts & Estates groups, will speak on “Revocable Trusts: Creative Uses and Drafting for the Elder Law Practitioner”, in Saratoga Springs, NY, at a program sponsored by the Elder Law & Special Needs Section of the New York State Bar Association.

McCarthy Fingar’s “Super Lawyers”

Six of McCarthy Fingar’s lawyers have been selected Super Lawyers in the New York Metropolitan area. Susan Taxin Baer has again been selected in the fields of Estate Planning & Probate. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Michael S. Kutzin has again been selected in the fields of Estate Planning & Probate, Estate & Trust Litigation and Elder Law. Kristen Mackay Pennessi has been selected in the field of Family Law. Irma K. Nimetz has been selected in the fields of Estate & Trust Litigation, Estate Planning & Probate, and General Litigation. Frank W. Streng has again been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

McCarthy Fingar’s “Super Lawyers”

Four of McCarthy Fingar’s lawyers have been selected Super Lawyers in the New York Metropolitan area. Susan Taxin Baer has again been selected in the fields of Estate Planning & Probate. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Michael S. Kutzin has again been selected in the fields of Estate Planning & Probate, Estate & Trust Litigation and Elder Law. Frank W. Streng has again been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

Boggio, Bramson & Kutzin Named in List of Westchester’s Top Lawyers

McCarthy Fingar is pleased to announce that Westchester Magazine has named Gail M. Boggio, Howell Bramson and Michael S. Kutzin to its list of Top Lawyers in Westchester. Each year Westchester Magazine publishes its list of Westchester’s Leading Lawyers, excerpted from BL Rankings LLC list of Best Lawyers in America, the preeminent referral guide to the legal profession in the United States.

Kutzin Wins Appeal on Guardianship Matter Involving Efforts to Reduce a Personal Needs Guardian’s Powers and to Reinstate a Health Care Proxy

Lawyers at McCarthy Fingar are often sought out by courts or other attorneys to handle the most difficult guardianship cases. In Matter of AMH, 2022 N.Y. Slip Op. 00968 (1^st Dep’t 2022), Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and trusts & estates, was appointed as litigation counsel by the lower court to spearhead AMH’s efforts to reduce her Personal Needs Guardian’s powers and to reinstate the health care proxy that AMH had given in 2015 to her daughter (a physician). The disgruntled son of nonagenarian AMH, who had not seen his mother for more than 4 years, opposed the relief sought by Mr. Kutzin. After multiple motions and a four-day hearing, Mr. Kutzin and his co-counsel obtained the requested relief for AMH; and the lower court denied everything requested by the son. The son’s litigious efforts continued in the Appellate Division, First Department, where he filed three separate appeals and multiple motions, but to no avail. Mr. Kutzin, leading the efforts in the Appellate Division, persuaded the Appellate Division to uphold the lower court’s decision.

McCarthy Fingar’s “Super Lawyers”

Six of McCarthy Fingar’s lawyers have been selected Super Lawyers in the New York Metropolitan area. Susan Taxin Baer has again been selected in the fields of Estate Planning & Probate. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Michael S. Kutzin has again been selected in the fields of Estate Planning & Probate, Estate & Trust Litigation and Elder Law. James K. Landau has again been selected in the fields of Commercial Litigation and Appellate. Frank W. Streng has again been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Douglas S. Trokie has again been selected in the fields of Business/Corporate, Closely Held Business, Real Estate, Business and Civil Litigation. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

Kutzin Speaks on Remote Notarization and Witnessing

Michael S. Kutzin, a member of various practice groups, including our Guardianship Practice, Taxation and Trusts & Estates groups, spoke on “Remote Notarization and Witnessing: Update on Legislation and Best Practices”, at a program sponsored by the Elder Law & Special Needs Section of the New York State Bar Association.

Kutzin Speaks on Elder Law Issues

Michael S. Kutzin, a member of various groups, including our Guardianship Practice,  Taxation and Trusts & Estates groups, spoke on “Preparing for the End – Wills, Estate Planning, and Understanding the Process (Probate and Administration)” at the 33^rd Annual Elder Law Institute of the Practising Law Institute.

Kutzin is Co-Author of “New York Elder Law”

As of the January 2021 edition, Michael S. Kutzin, a member of various groups, including our Guardianship Practice,  Taxation and Trusts & Estates groups, became a co-author, along with Tara Anne Pleat, Esq., of the LexisNexis treatise, New York Elder Law.  The publication, which is one of the premier publications in the field, contains comprehensive analysis and practice guidance for trusts & estates, elder law and special needs attorneys practicing in New York. Some topics that are discussed include: planning for incapacity (property management & health care decisions); Medicare and long-term care insurance; Medicaid; supplemental needs trusts; guardianships; estate planning and wills; health care coverage and resources; financial planning; income and estate tax; and elder abuse.

McCarthy Fingar’s “Super Lawyers”

Six of McCarthy Fingar’s lawyers have been selected Super Lawyers in the New York Metropolitan area. Susan Taxin Baer has again been selected in the fields of Estate Planning & Probate. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law.  Michael S. Kutzin has again been selected in the fields of Estate Planning & Probate, Estate & Trust Litigation and Elder Law. James K. Landau has again been selected in the fields of Commercial Litigation and Appellate. Frank W. Streng has again been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Douglas S. Trokie has again been selected in the fields of Business/Corporate, Closely Held Business, Real Estate, Business and Civil Litigation. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

Kutzin Co-Authors Article on Retirement Accounts

Michael S. Kutzin, a member of various groups, including our Guardianship Practice,  Taxation and Trusts & Estates groups, has Co-Authored an article entitled, “How “SECURE” Are You About Planning With Your Clients With Retirement Accounts? A Guide to Estate and Special Needs Planning After the SECURE Act”, published by the Elder Law and Special Needs Section of the New York State Bar Association.

Kutzin Named as Co-Chair of NYSBA Task Force on Remote Notarization and Witnessing of Estate Planning Documents

During the COVID-19 health care crisis, McCarthy Fingar lawyers have remotely supervised the execution of many Wills, Trust Agreements and related documents. We are pleased to announce that Michael S. Kutzin, a member of various groups, including our Guardianship Practice, Trusts & Estates and Surrogate’s Court Litigation groups, has been named as a co-Chair of the NYSBA Joint Elder Law and Trusts & Estates Sections Task Force on Remote Notarization and Remote Witnessing of Estate Planning documents.

Kutzin Wins Appeal on Guardianship Matter Involving Dispute Between Divorced Parents

McCarthy Fingar lawyers represent clients in the most difficult guardianship cases. In Matter of A.A. v. A., 2020 NY Slip Op 03468 (1st Dep’t 2020),  Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and trusts & estates, represented, on a pro bono basis, the mother of an incapacitated child in an appeal to the Appellate Division, First Department, of a lower court decision in which, after a divorce, the mother had been named the guardian for her daughter, J.A. Michael succeeded in having the father’s appeal denied on the grounds that the lower court had properly exercised its discretion in naming the mother as guardian and that he had no independent right to have his adult child brought to a physician of his choice to prove his case.

Michael S. Kutzin Joins Firm as Partner

We are pleased to announce that Michael S. Kutzin has joined the firm as a partner and is a member of our Guardianship Practice, Trusts & Estates, Surrogate’s Court Litigation, Appellate Practice, Exempt Organizations, Taxation and Charitable Gift Planning groups. Michael joins McCarthy Fingar from Goldfarb Abrandt Salzman & Kutzin LLP, where he had been a partner for 17 years. Michael has extensive experience with all forms of Surrogate’s Court and Guardianship proceedings, from the most routine to the most complex and contentious. He has appeared in Westchester matters for years, as well as Surrogate’s Court and Guardianship cases in New York City.

New York Elder Law

LexisNexis (2021 Edition)

How “SECURE” Are You About Planning With Your Clients With Retirement Accounts? A Guide to Estate and Special Needs Planning After the SECURE Act

Elder Law and Special Needs Section of the New York State Bar Association

Matter of Komar, File No. 2023-557/D (Surrogate’s Court, Rockland County – 5-22-2024)

Michael S. Kutzin

Surrogate’s Court Litigation – Will and Trust Contests  – Attorney Client Privilege – Guardianship Practice

McCarthy Fingar’s expertise in guardianship matters –  where determinations of whether an individual is incapacitated (referred to as an “Alleged Incapacitated Person”, or “AIP”) –  is important, especially when we represent a client in a Will Contest in an AIP’s estate. In an ongoing Will Contest, in Surrogate’s Court, Rockland County, Michael S. Kutzin succeeded on behalf of our client, the surviving son of the decedent, in challenging attorney-client privilege claims by a Florida lawyer (also licensed in New York), who claimed to represent the AIP during the guardianship proceeding. In the guardianship proceeding, a hearing was held to determine whether, under Mental Hygiene Law §81.10(a), the AIP freely and independently chose this Florida lawyer. The guardianship court held that the AIP did not do so, in part because the AIP testified that it was his granddaughter (and our client’s opponent in the will contest) who procured this lawyer.

In the Surrogate’s Court Will Contest, Michael subpoenaed this Florida lawyer for his complete file and any emails or other communications regarding his involvement in the AIP’s guardianship proceeding. The Florida lawyer refused to comply with the subpoena, claiming, in part, that any communications he had with the AIP were protected by attorney-client privilege.  Michael then opposed a motion by the Florida lawyer in the Surrogate’s Court to quash the subpoena, in which we sought to compel the Florida lawyer to turn over his files as part of discovery in the Will Contest. In his motion papers, Michael argued that, since the Florida lawyer had been removed from the guardianship case, he did not enjoy an attorney-client relationship with the AIP, and that, therefore, no attorney-client privilege protected any of his files. The Surrogate’s Court agreed with Michael, holding, that, as the guardianship court had already determined that the AIP had not freely and independently retained the Florida lawyer, the requisite first requirement for attorney-client privilege was missing – to wit, an attorney-client relationship. The Surrogate’s Court evaluated the issue of attorney-client relationship as follows: “In its final ruling, the Court found that Decedent lacked the capacity and competence to manage his own affairs. The judgment and order resolving the guardianship proceeding, dated July 17, 2023, gave the guardian authority to “retain counsel in the State of Florida necessary to protect the [Decedent’s] property interests in Florida and to investigate and bring appropriate legal action including a disgorgement proceeding against [the Florida lawyer] for legal fees paid to him from the [Decedent’s] funds for alleged legal representation.” (Kutzin Affirmation in Opposition, Exhibit C, p.11 ). Given these facts, [the Florida lawyer] cannot be afforded the protection of the attorney-client privilege as such a relationship was never established.”

The Surrogate’s Court went on to find that the evidence in the Florida’s attorneys files was highly relevant to the Will Contest, stating as follows: “Further, the Court agrees with Respondent’s contention that communications between [the Florida lawyer], the attorney drafter of the Will and related documents, and Petitioner are relevant and are not privileged. The Petitioner was favored under the subject Will, and Decedent testified she had procured [the Florida lawyer] for him. These issues are relevant to determining the validity of the subject Will.”

As a result, Michael and his client will be receiving what they anticipate to be favorable evidence for the ongoing Will Contest and a related trust litigation.

Matter of AMH, 2022 N.Y. Slip Op. 00968 (1st Dep’t 2022)

Michael S. Kutzin

Lawyers at McCarthy Fingar are often sought out by courts or other attorneys to handle the most difficult guardianship cases. In Matter of AMH, the disgruntled son of nonagenarian AMH, who had not seen his mother for more than 4 years, created turmoil for many years for her and her guardians. At the request of AMH’s court appointed counsel, the lower court appointed McCarthy Fingar partner, Michael S. Kutzin, as litigation counsel to spearhead AMH’s efforts to reduce her Personal Needs Guardian’s powers reduced and to reinstate the health care proxy that AMH had given in 2015 to her daughter (a physician). The 2015 health care proxy had been voided by the lower court because the daughter and AMH’s health care proxy had not been able to work together, but by the time AMH’s application was filed, the daughter and the Personal Needs Guardian had worked well together for a number of years. The son was very litigious: he not only opposed this requested relief, but filed his own application to remove AMH’s longtime counsel, remove the Personal Needs Guardian and to have visitation restrictions (which had been imposed because of his misconduct) lifted. The son also sought to have the lower court compel AMH to testify, even though AMH suffered from health threatening stress when dealing with conflict. After multiple motions and a four-day hearing, Mr. Kutzin and his co-counsel obtained the requested relief for AMH; and the lower court denied everything requested by the son. The son’s litigious efforts continued in the Appellate Division, First Department, where he filed three separate appeals and multiple motions, but to no avail. Mr. Kutzin, leading the efforts in the Appellate Division, persuaded the Appellate Division to uphold the lower court’s decision.

Matter of A.A. v. A., 184 A.D.3d 496 (1st Dep’t 2020)

Michael S. Kutzin

McCarthy Fingar lawyers represent clients in the most difficult guardianship cases, including disputes over a guardianship of an adult child. While most people understand issues involving the care and custody of children is often front-and-center in a divorce case, sometimes even adult children with disabilities become collateral damage of a divorce as parents battle over guardianship of an adult child. This can happen for myriad reasons, including where well-meaning but ill-advised parents have a different vision for what kind of care the disabled child should receive. In Matter of A.A. v. A., Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and Trusts & Estates, represented, on a pro bono basis, the mother of an incapacitated child in the appeal to the Appellate Division, First Department, of a lower court decision in which, after a divorce, the mother had been named the guardian for her daughter, J.A. The father had fought to become his daughter’s guardian and appealed the lower court decision, arguing that the daughter’s incapacity was brought on by the anti-psychotic medication that she was taking. The father further argues that he should have the right to take his daughter to a physician of his own choice, in his effort to demonstrate that it was the medicines that caused her illness. The mother, who had already prevailed in Family Court against such allegations when she obtained custody while the child was a minor, was named guardian in the lower court proceeding. Michael succeeded in having the father’s appeal denied on the grounds that the lower court had properly exercised its discretion in naming the mother as guardian and that he had no independent right to have his adult child brought to a physician of his choice to prove his case. The First Department uphold the lower court decision, finding that the mother “had been diligently caring for [the daughter] for years and appropriately attended to her needs, and the absence of any evidence supporting plaintiff’s claims of improper medical treatment . . . “

Matter of Argondizza, 168 A.D.3d 426 (1st Dep’t 2019)

Michael S. Kutzin

Transfers of assets using a power of attorney often lead to conflict. The question is whether the transfer by the agent under the power of attorney was in the best interests of the principal. In Matter of Argondizza, 168 A.D.3d 426 (1st Dep’t 2019), Michael S. Kutzin succeeded in having the Appellate Division uphold the Surrogate’s Court in dismissing the claim brought by two children in a property turnover proceeding against their stepfather. Here, the Surrogate’s Court rejected the argument that the stepfather breached his fiduciary duties when, as an agent under a power of attorney, he transferred a co-op he co-owned with his wife into his own name. In this case, the decedent had told her treating physician that it was her desire that the co-op be transferred into her husband’s name, the transfer was being done in order to obtain eligibility for Medicaid coverage of long term care, and the children were aware of and took part in the transfers.

Probate Proceedings – Complicated Uncontested Will

Michael S. Kutzin

Not all probate proceedings are created equal. In 2018, after taking over from prior counsel, Michael S. Kutzin succeeded in having a will admitted to probate that clerks in the New York County Surrogate’s Court referred to as one of the most complex uncontested matters that they had seen. In that case, the decedent, who was unmarried and had no children, had filed a prior will in the court which had a series of unusual provisions, including a trust for the benefit of first cousins once removed living in Ireland and England. She also had a large extended family in the United States and abroad. To complicate matters further, numerous beneficiaries and interested parties died after the decedent did but before the will was admitted to probate, making the probate particularly difficult. Nevertheless, through hard work and determination, Michael succeeded in having the will admitted to probate.

Relocation to Different State – Lack of Support Systems for Incapacitated Person

Michael S. Kutzin

Guardianship cases are designed to be flexible tools to protect the interests of an incapacitated person. Sometimes, however, people forget that and become more concerned with technical compliance with the law than with protection of the incapacitated person. In January, 2020, Michael S. Kutzin persuaded a judge in Manhattan, over the objections of the City of New York, court appointed counsel and an institutional temporary co-guardian that the brother of the incapacitated person acted properly in relocating her from New York to Oregon without prior court approval when her safety was endangered. The incapacitated person, who lived alone, had no memory and little understanding of her circumstances, brought a young man into her apartment late at night. The young man was recorded in security cameras leaving the apartment very early in the morning. The Court agreed that, in the absence of any support systems in New York, the brother, who was also co-guardian, acted properly in removing his sister to Oregon to be closer to her father and family members, and approved his request to have the guardianship transferred to Oregon.

Family Hostility – Revocation of Health Care Proxy

Michael S. Kutzin

Physical distance and family hostility created a situation in which an elderly woman’s health care had become compromised. In 2019, Michael S. Kutzin  represented a longtime family friend of the elderly woman in obtaining guardianship for client who had a lifetime relationship with the elderly woman, and obtained the revocation of a Hawaiian daughter’s health care proxy. The Hawaiian daughter had a hostile relationship with a New York daughter who had attempted to provide care for their mother. The health care agent directed medical providers not to listen to the New York daughter and to keep their mother’s medical information from her. As a result of the conflict between the daughters, their mother’s medical care had become compromised. For various reasons, the New York daughter was not a suitable candidate to become guardian of her mother, so, at the mother’s request, the friend intervened. A Manhattan court agreed with Michael’s argument that the hostility between the daughters put their mother’s care at risk, and found that the longtime family friend was the most appropriate person to serve as guardian.

Testimony of Witnesses on Due Execution

Michael S. Kutzin

Surrogate’s Court litigators know that getting the facts is essential to success in a will contest. Michael S. Kutzin obtained a substantial settlement on behalf of a nephew even though it was clear that his client’s uncle intended to disinherit him. In that case, the uncle prepared his own will and had two elderly neighbors witness his signing. Emails from the uncle indicated that he had reasons to disinherit his nephew and that he had the necessary legal capacity to sign a will. When Mr. Kutzin took the will witnesses’ depositions, however, their memory (or lack thereof) of the events in question left it unclear what exactly was signed in their presence and whether the requirements for due execution of a will were met.

Fiduciary Removal – Lack of Cooperation of Co-Executor

Michael S. Kutzin

Sometimes family members are named as co-executors of Wills but cannot work together. If the dysfunction is egregious and results in harm to the Estate, there may be a need to seek the removal of one of the co-Executors. In Surrogate’s Court, Kings County, Michael S. Kutzin, in a proceeding to remove an executor, obtained the removal of the sister of one of the two co-executors. Here, the sister would not cooperate with her co-executor in selling real property to pay estate taxes, changed addresses without notifying the Court, and did not deny that she was suffering from dementia. Moreover, she would not cooperate with the co-executor with making necessary repairs of other real property held by the Estate to prevent waste. As a result, the Court ordered the revocation of her letters and the issuance of letters testamentary solely to the brother.

Compel Distributions from Trust – Beneficiary with Medical Expenses

Michael S. Kutzin

When beneficiaries of trusts have needs, sometimes they need counsel to compel trustees to make distributions.  Here, a beneficiary of two trusts lacked medical insurance and desperately needed money to pay for expensive cancer care. The trustee of both trusts refused to provide the funds, in part on the grounds that it was more appropriate for the funds to be paid from the other trust. Michael S. Kutzin brought a petition in Surrogate’s Court, New York County, to request that one of the two trusts be compelled to provide the necessary funds on an emergency basis. The Surrogate’s Court ordered the corporate trustee of the larger of the two trusts to make the necessary payments on the beneficiary’s behalf.