APPLICATION OF KIMBERLY STELLA CLARK-RESNICK TO BE APPOINTED GUARDIAN OF THE PROPERLY OF JOHN PATRICK ROTHSTEIN

MATTER OF THE APPLICATION OF KIMBERLY STELLA CLARK-RESNICK TO BE APPOINTED GUARDIAN OF THE PROPERLY OF JOHN PATRICK ROTHSTEIN, (1337/A/11) — Kimberly Stella Clark-Resnick petitions to be appointed guardian of the property of her son, an infant, and for authorization to invest his property pursuant to two investment advisory agreements. She has provided the proposed investment advisory agreements for the court's review (SCPA §1708[2] [c]). One agreement is to govern the assets of an investment retirement account (IRA) received from the infant's deceased father. The other is to govern the investment of the other guardianship assets, primarily life insurance proceeds. The petition is unopposed.

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MATTER OF THE APPLICATION OF KIMBERLY STELLA CLARK-RESNICK TO BE APPOINTED GUARDIAN OF THE PROPERLY OF JOHN PATRICK ROTHSTEIN, (1337/A/11) — Kimberly Stella Clark-Resnick petitions to be appointed guardian of the property of her son, an infant, and for authorization to invest his property pursuant to two investment advisory agreements. She has provided the proposed investment advisory agreements for the court’s review (SCPA §1708[2] [c]). One agreement is to govern the assets of an investment retirement account (IRA) received from the infant’s deceased father. The other is to govern the investment of the other guardianship assets, primarily life insurance proceeds. The petition is unopposed.

The proposed investment advisory agreements and investment advisor and custodian (Bank of New York Mellon, N.A.) are “acceptable to the court” and should be approved (SCPA §1708[2][c]). For each agreement, the investment advisor has agreed to execute the necessary guardianship supplement, which requires investment and management in accordance with EPTL §11-2.3, the Prudent Investor Act, and neither permits the release of funds without court order, nor allows the investment advisor to increase its fees unilaterally. With the execution of the preemptive supplement, the proposed agreement makes no attempt to exonerate the investment advisor from the fiduciary duties imposed by the prudent investor standard; does not seek to authorize the taking of additional fees for investments in the investment manager’s own investment vehicles or those of its affiliates (EPTL §11-2.3[d]); and does not provide any means of divesting the court of continuing jurisdiction (e.g., the inclusion of an arbitration clause) (see Matter of Bryant, 188 Misc 2d 462 [Sur Ct, Broome County 2001]; Matter of Corapi, NYLJ, July 13, 2001, at 25, col 6 [Sur Ct. Onondaga County]; Matter of Ziskin, NYLJ, Oct. 1, 2001. at 25, col 2 [Sur Ct, Nassau County]; Matter of K. Rodesky, NYLJ, Oct. 7, 2005, at 29, col 5 [Sur Ct, Westchester County]).

APPLICATION OF KIMBERLY STELLA CLARK-RESNICK TO BE APPOINTED GUARDIAN OF THE PROPERLY OF JOHN PATRICK ROTHSTEIN

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