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Petitioner Not Appointed Conservator, Pays Own Attorney

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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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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.