Petitioner Not Appointed Conservator, Pays Own Attorney

JULY 11, 2011 VOLUME 18 NUMBER 25
When appointment of a guardian and/or conservator is necessary, the cost of securing the appointment is usually a legitimate charge to be paid by the ward’s estate. There are exceptions, but the general rule is that the guardian’s and conservator’s fees, together with the fees charged by the attorney for the guardian and conservator, can be paid from the ward’s estate.

What happens, though, when a guardianship or conservatorship petition is unsuccessful, or when the person filing the petition is not ultimately appointed as guardian or conservator? Often (but not always) the parties and the court ultimately agree that the petitioner’s efforts — even though not completely successful — benefited the ward, and that their reasonable attorney’s fees should be paid. There is no completely clear authority for that proposition in Arizona, however, and the result could be different in each case.

Last week precisely that question was addressed in a case decided by an appeals court. It was not an Arizona court, but from our neighbor Utah — where the laws are very similar. That does not mean that the Utah decision would be followed in Arizona, but it is certainly an indicator of what an Arizona court might decide in a contested proceeding.

Margaret Guynn lived on her own in Texas until 2009, when her son Donald Bruce Guynn moved her to an assisted living facility in Salt Lake City so that she would be closer to him. A few months later Ms. Guynn’s other child, Catherine Ortega, decided that mother needed the protection of the courts and she filed a petition seeking her own appointment as Ms. Guynn’s guardian and conservator.

Both mother and son vigorously objected that she was not incapacitated and that appointment of a guardian and conservator was unnecessary. In order to avoid expensive and protracted litigation, however, Ms. Guynn agreed that her son (not her daughter) could be appointed as limited conservator of her estate. That would have the effect of requiring him to file an annual accounting with the court for his administration of her funds, but it left him in charge of her finances.

Once the limited conservatorship was in place, Ms. Ortega asked the court to approve payment of her attorney’s fees from her mother’s funds. Mr. Guynn objected, and the probate judge decided that she was not entitled to the payment.

The Utah Court of Appeals agreed. It noted the general rule that, absent specific statutory authority, one party is not entitled to be paid by another for attorneys fees incurred in litigation. In this case, Ms. Ortega’s petition was not successful, and the appellate court saw not reason to order her mother to pay her fees and costs. Matter of Guardianship of Guynn, June 30, 2011.

Arizona’s statute is similar, although it has undergone a number of changes in the past few years. None of those changes, however, would clarify whether an unsuccessful petitioner might be entitled to be paid from the ward’s funds. Recent Arizona cases and intense court and media attention have thrown some light on how the courts might calculate the reasonableness of fees, but not on whether the payment might be made at all. The current statute with regard to conservatorships, Arizona Revised Statutes section 14-5414, addresses an interesting variation on the question: would Ms. Guynn’s attorney, or her proposed conservator’s attorney, have a right to recover fees from her daughter if she had simply dropped the petition? Probably yes, but there is less clarity about how the Guynn question might be addressed by Arizona courts.

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