Law Office of John S. Palmer Attorney at Law

Guardianship Legal Fees-Part I

Posted Tuesday, December 24, 2013 by John S. Palmer

Establishing a guardianship can be expensive. A person for whom a guardian is sought is entitled to a jury trial on the issue of his or her capacity, no matter how clear any incapacity may be, and to have an attorney represent them in a guardianship proceeding, even if they cannot afford one.

A lawyer (often one who practices elder law) usually represents the petitioner. Additionally, upon receiving the petition, the court will automatically appoint a Guardian ad Litem, whose primary role is to conduct an investigation and file a report with the court addressing whether or not a guardian should be appointed, and, if so, whether the person or agency nominated is an appropriate choice. Family members and other interested parties may hire lawyers to respond to the petition and GAL report, and attend any court hearings, particularly when there is a dispute over whether a guardianship is needed, or who should be appointed Guardian.

Which begs the question, who pays for all of these legal fees? Although the general rule in the U.S. is that each party bears his or her own litigation expenses, there are several fee-shifting statutes available in Washington guardianship proceedings.

RCW 11.88.030 provides that the standard filing fee (currently $240) shall not be charged by the court if the guardianship petition alleges that the alleged incapacitated person has total assets of a value of less than three thousand dollars. If the filing fee is charged, reimbursement “shall be ordered from the estate of the incapacitated person at the hearing on the merits of the petition, unless in the judgment of the court, such payment would impose a hardship upon the incapacitated person, in which case the filing shall be waived.”

RCW 11.88.090(10) provides that the guardian ad litem “shall receive a fee determined by the court. The fee shall be charged to the alleged incapacitated person unless the court finds that such payment would result in substantial hardship upon such person, in which case the county shall be responsible for such costs: PROVIDED, That the court may charge such fee to the petitioner, the alleged incapacitated person, or any person who has appeared in the action; or may allocate the fee, as it deems just. If the petition is found to be frivolous or not brought in good faith, the guardian ad litem fee shall be charged to the petitioner.”

With respect to any attorney appointed to represent the alleged incapacitated person (whether requested by that person or appointed on the court’s own volition), RCW 11.88.045 states that the attorney shall be provided “at public expense when either: (i) the individual is unable to afford counsel, or (ii) the expense of counsel would result in substantial hardship to the individual, or (iii) the individual does not have practical access to funds with which to pay counsel. If the individual can afford counsel but lacks practical access to funds, the court shall provide counsel and may impose a reimbursement requirement as part of a final order.”

Finally RCW 11.96A.150 gives the court rather broad latitude in order any party to the proceeding to pay another party’s fees:

(1) Either the superior court or any court on an appeal may, in its discretion, order costs, including reasonable attorneys’ fees, to be awarded to any party: (a) From any party to the proceedings; (b) from the assets of the estate or trust involved in the proceedings; or (c) from any nonprobate asset that is the subject of the proceedings. The court may order the costs, including reasonable attorneys’ fees, to be paid in such amount and in such manner as the court determines to be equitable. In exercising its discretion under this section, the court may consider any and all factors that it deems to be relevant and appropriate, which factors may but need not include whether the litigation benefits the estate or trust involved.

(2) This section applies to all proceedings governed by this title, including but not limited to…guardianship matters…This section shall apply to matters involving guardians and guardians ad litem and shall not be limited or controlled by the provisions of RCW 11.88.090(10).

In applying these statutes, the court may feel it is important to protect and preserve the incapacitated person’s estate by assessing fees against an at-fault party, such as someone whose financial exploitation of the incapacitated person precipitated the guardianship, or that equity requires one or more parties to be reimbursed by a party who drove up costs by taking a frivolous or unreasonable position in the guardianship proceeding.

Generally speaking, in order to encourage third parties to step forward when appropriate, the court will also usually try to make sure that a petitioner acting in good faith to protect an incapacitated person does not incur any financial loss by ordering that all of his or her legal fees be paid from the assets of the incapacitated person, particularly in cases where the petition is granted or results in a demonstrable benefit to the incapacitated person, such as ending any financial abuse. However, an award of attorney fees under 11.96A.150 is entirely discretionary with the court, and other factors taken into consideration may include whether the party seeking a fee award has clean hands or whether the case involved any legal issues that were so novel or unique that neither side’s position was unreasonable under the circumstances.

These orders allocating fees are subject to appeal. The criteria applied by an appellate court to evaluate a fee award will be discussed in part II.

If you have any questions or would like to schedule an appointment, please call us at (425) 455-5513, toll free at (877) 455-5513, or info@palmerlegal.com.