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Ward Need Not Pay Legal Fees For Successful Guardianship

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MARCH 23, 1998 VOLUME 5, NUMBER 38

It is increasingly common for government services to be contracted out to private companies. In Milwaukee County, Wisconsin, even elder abuse monitoring and prevention services are handled by a private corporation, Community Care Organization. Of course, the elderly victims of abuse and exploitation often require the appointment of a guardian or conservator; Community Care files petitions with the local Court when such proceedings are necessary.

In 1996, Community Care filed guardianship petitions against two elders, identified by the courts as Evelyn O. and Thyra K. Both women objected to the guardianships, and the same lawyer was appointed to represent both.

After preliminary negotiations and discussions, the lawyer representing Evelyn O. and Thyra K. ultimately stipulated to the appointment of a guardian for both women. After appointment of a guardian, Community Care submitted its bill in each case for the legal costs associated with the petition. The court-appointed attorney objected to payment of the fees from the women’s assets.

Wisconsin’s guardianship statutes direct that the guardian should pay the “just debts” of the ward. Based on that statute, the judge ordered Evelyn O. and Thyra K. to pay Community Care’s legal fees. The women’s attorney appealed the judge’s order.

While the case was pending in Wisconsin’s Court of Appeals, both Evelyn O. and Thyra K. died. Nonetheless, the Court of Appeals decided to reverse the order that fees be paid. The court noted that the usual rule is that one party, even if successful, should not be made to pay another party’s legal fees; in order to change that result, said the court, the legislature would need to give clear and specific authority for an award of legal fees.

Even though the petitions were finally successful, said the court, the women were not obligated to pay their opponent’s legal fees. “Although Community Care argues that it performed a service for Evelyn O. and Thyra K. by successfully putting them under the protective wings of others, and contends that it should be paid for this service, it neither contracted with either Evelyn O. or Thyra K. for this service nor received their approval for it…. Evelyn O. and Thyra K. were not obligated by any legal principle of which we are aware to supply bullets to their adversaries, either before or after the battle, even if the war is fought for what is ultimately determined to be in their benefit.”

The decision was based on a lack of specific authority for the order awarding attorneys fees, but the court also suggested that it might have reached the same result even if there had been a statute permitting the award. “Given the restrictions on liberty that flow from guardianship … we express no opinion about the constitutionality” of such a statute, said the judges. Guardianship of Evelyn O., Wisconsin Court of Appeals, October 28, 1997.

In Arizona, the result might have been different. Although the language of Arizona law is similar to Wisconsin, the practice of paying the legal costs of petitioning for appointment of a guardian and conservator is fairly common.

Arizona law requires a conservator (the equivalent, for these purposes, of Wisconsin’s “general guardian”) to pay “all just claims against the estate.” Note that Wisconsin law refers to the “just debts” of the ward, while Arizona instead describes the “just claims against the estate.” This subtle difference may be enough to permit Arizona petitioners to secure payment from the ward’s funds.

Another section of Arizona law permits a conservator to use the ward’s funds to pay for “support, education, care or benefit” of the ward. This gives rise to an argument that by appointing a conservator the court has indicated that the proceedings were for the benefit of the ward, and the petitioner’s legal costs should therefore be paid.

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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.