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Guardianship Legal Fees

Posted Monday, June 29, 2015 by John S. Palmer

Occasionally there can be conflict over fees charged by a lawyer hired to oppose a guardianship petition; while the attorney usually wants to be paid for all time spent on the case, the court has the authority to limit fees to what it determines to be fair and reasonable if the client is ultimately found to be incapacitated.

A person is presumed to have the capacity to enter into contracts with lawyers and others unless a court rules otherwise. But in a guardianship proceeding there is usually some evidence of incapacity at the time the lawyer is hired, raising the concern that the client cannot fully understand what the lawyer is charging or whether the fees are reasonable.

Therefore, RCW 11.88.045 provides that an alleged incapacitated person has “the right to be represented by willing counsel of their choosing at any stage in guardianship proceedings” but that “[d]uring the pendency of any guardianship, any attorney purporting to represent a person alleged or adjudicated to be incapacitated shall petition to be appointed…Fees for representation described in this section shall be subject to approval by the court” pursuant to RCW 11.92.180, which generally provides that the fees will be allowed as the court deems to be just and reasonable.

There have been two primary appellate decisions by the Washington Court of Appeals on this issue. The first, In re Guardianship of Beecher (2005), did not result in any finding that Beecher was incapacitated. The trial court ruled her attorney’s fees were excessive and unreasonable, but the Court of Appeals said:

The court can review fees and costs under the guardianship statute only after an adjudication of incapacity. Until then, an alleged incapacitated person retains the right everyone else has to hire and pay the attorneys of her choice. No court ever found Beecher was incapacitated, so the trial court did not have the authority to review [her attorney’s] fees.

The second decision, In the Matter of the Guardianship of Decker (issued June 16, 2015) involved an elderly woman who fought a guardianship petition for over 2 years before agreeing to the appointment of a limited guardian. Shortly after the petition was filed, attorney Daniel Quick was appointed as Decker’s attorney, and the trial court ordered him not to bill for more than 50 hours of time (at $250 per hour) without prior court approval. The case took some interesting twists and turns; after Decker signed a power of attorney appointing Quick to help manage her affairs, DSHS moved to dismiss its petition on the grounds that the power of attorney was an acceptable alternative to guardianship, but Decker opposed dismissal apparently because it still would have resulted in a finding that she was incapacitated.

After the limited guardian was appointed, Quick sought approval of more than $118,000 in fees already paid to him by Decker, plus $17,000 in unpaid fees. In support of this request he submitted a contract Decker signed about 4 months after the court appointed him as her attorney. The trial court authorized payment of $30,000 and ordered Quick to repay any sums he received over that amount.

Quick appealed and in his brief he relied on Beecher to argue that the court lacked the authority to limit any fees he charged prior to the date the guardian was appointed, because until then there “is no basis…for a court to second-guess, after the fact, the decisions made and bills incurred by Mrs. Decker (or any person) before such date she is determined to be incompetent….” He asserted that Decker hired him “as her personal, independent attorney to fight the guardianship, separate from his appointment by the Court” and that the trial erred when it ordered him to “disgorge funds he had been paid for work done at her direction and which had been paid by her.”

The Court of Appeals disagreed, stating that “the plain language of RCW 11.88.045(2) provides that the court has oversight over the appointment and compensation of an attorney representing an alleged incapacitated person during the pendency of the guardianship—that is, before a guardianship is established…Thus, we hold that the guardianship statute clearly allows for court oversight of attorney fees in the case of people alleged or adjudicated to be incapacitated.” The court distinguished Beecher, stating “Beecher was never adjudicated incapacitated, but Decker was. The holding of Beecher, by its terms, only applies where there was never an adjudication of incapacity.”

The court also rejected Quick’s argument that to properly rule on his fee request, it must employ the “lodestar” analysis (under which the court sets a fee by deciding a reasonable number of attorney hours and multiplies it by a reasonable hourly fee). The court said this equation is usually used to order one party to pay the legal fees of a prevailing party, whereas “an attorney for an alleged incapacitated person need not succeed in contesting the guardianship to merit compensation…The calculation of a reasonable fee…is different” in these two contexts. Rather, the trial court was obligated to establish a “just and reasonable” fee pursuant to RCW 11.92.180:

The statute appears to contemplate that the trial court will determine just and reasonable compensation based on the competing equitable factors of compensating an attorney for his work, protecting the alleged incapacitated person’s right to autonomy, and also protecting the incapacitated person’ s estate from excessive attorney fees, because guardianships are equitable creations of the trial court.

The Court of Appeals said the trial court did not abuse its discretion in setting Quick’s fee at $30,000 and ordering him to repay the excess because it “appears to have balanced the equitable factors central to” the statute and also took into account “the unexpected difficulty Quick faced in this unusual guardianship case” as well as the fact that he violated the court’s order not to bill for more than 50 hours of time without prior court approval.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056