Guardian may charge fees

Guardian May Charge Fees, Even if Family

A guardian may charge fees for acting as guardian. That basic principle is not really surprising or disputable. But the notion persists that this important work should not cost, or at least be inexpensive.

We have written about guardianship fees before. The subject comes back up because of a recent Florida Court of Appeals decision we read. It does not break new ground, but serves as reinforcement of the reality that a guardian may charge fees. And, as it happens, the guardian in that case is the daughter of the person over whom she exercises authority. That doesn’t change the basic legal principles, as it turns out.

A word about language, to start with. Florida uses the term “guardian” to describe a guardian over the estate of a person (what we would call a conservator in Arizona). Somewhat confusingly (to Arizona practitioners, anyway), Florida also uses “guardian” to describe the guardian of the person — what we would also call a guardian.

The Florida guardianship case

The actual reported decision in Florida is extremely brief. In fact, we will spend more words explaining it than the case itself includes. But here are the basic facts:

Penelope Jones was appointed as guardian (apparently of the person and estate) of her father William Edward Jones. Eventually she filed a request with the judge in Orlando, Florida, seeking payment of fees for her action as her father’s guardian.

The judge refused to authorize fees for Ms. Jones. She ruled that Ms. Jones had “an obligation to provide such services for the ward without compensation due to the father/daughter familial relationship between the Ward and the guardian.”

Ms. Jones appealed. The Florida Court of Appeals, in a very brief opinion, reversed that holding and sent it back to the trial judge to determine the appropriate fee for Ms. Jones’ actions as guardian.

OK, a family guardian may charge fees — but how much?

The appellate court’s decision doesn’t set the reasonable fee for Ms. Jones, but it does explain how that fee is to be derived. Even though she is the daughter of Mr. Jones, she should be compensated for doing what is “necessary to discharge a guardian’s duty to the ward.”

But aren’t some of those things really what a child can be expected to do, and without charging? Probably, yes. And the appellate court is clear: Ms. Jones is not entitled to be compensated for “merely doing what any daughter does.” Jones v. Guardianship of Jones, February 14, 2020.

To the extent that Ms. Jones is acting as guardian of her father’s estate (or, as we would say, as conservator), it may be easy to determine what she is entitled to be paid for. Much more complicated are those things she might do as guardian of her father’s person. Will she be entitled to payment for personal visits? How about help with housekeeping, or overseeing meal preparation or medications?

The Florida Court of Appeals suggested one way to check on what the guardian may charge fees for:

On remand, the trial court should determine the services that would reasonably be performed by a professional or other nonfamily member guardian necessary to discharge a guardian’s duty to the ward. The guardian would be entitled to compensation to the extent those services were actually performed and properly documented.

Is the rule the same in Arizona?

Generally, yes. A conservator or a guardian may charge fees in Arizona, as well. If the guardian or conservator is a family member, the court may approve a rate lower than a professional’s fee. But that would primarily be recognition of the training and oversight of professional fiduciaries, rather than any reduction just to reflect the familial relationship.

To be sure, there are plenty of things a conservator (or, especially, a guardian) may do that replicate things close family members are usually expected to take care of. But that does not mean family members can not be paid for performing those tasks. The oversight of the court, the duty to perform fiduciary acts with care, and the need for training and documentation all support even family members charging a reasonable fee.

Do family members always charge fees? Of course not. In fact, in our experience family members usually forego fees for acting as guardian. It may be different for conservatorship, though — family members are less likely to skip compensation when they are required to manage finances. That makes sense to us, in fact.

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