Friday, October 13, 2017

How Much Should Guardians be Paid?

The National Guardianship Association takes the understandable position that "guardians are entitled to reasonable compensation for their services," while bearing in mind "at all times the responsibility to conserve the person's estate when making decisions regarding providing guardianship services" and in setting their fees.  See NGA Standard 22 on Guardianship Service Fees

Should there be "schedules" for fees, such as hourly fees, or maximum fees? Modern courts often struggle with questions about how to determine fees, and some states, such as Pennsylvania,  have a fairly flexible list of common law (not statutory) factors for the court to consider.  

In a April 2017 trial court opinion in Chester County, PA, for example, the court reviewed $54k in fees for the lawyer appointed to serve as guardian, and another $13k in fees for an attorney the guardians had hired.  According to the court, "Neither had sought leave of court prior to paying these sums out of the principal of the estate; the court learned of this when its auditor reviewed the annual report wherein these payments were disclosed."  The ward in question was 87-years old and a resident in a skilled nursing faciility, with dementia and other health issues.  The court struggled with the bills, commenting the format used was "inordinately difficult to follow" and at least on first review seemed "high for ten (10) months."  For guidance in evaluating the bills, the court did "two things.  It first searched the dearth of cases available for any guidance."  It also called the individuals to discuss the billing formats and learn more about the work completed.  

The Pennsylvania precedent was almost exclusively unpublished opinions, often from trial courts.  The Chester County court recounted some of the history of guardianships, from English times to colonial courts to the present, concluding, "In any event, no reported decisions have been located concerning professional compensation of guardians of the persons.  Apparently, society had no need of their services until more recent times."  

Ultimately, Chester County Court of Common Pleas's Judge Tunnell approved the fees, finding "a number of untoward events which transpired during the year in question," including a serious injury the ward sustained from a fall in the nursing home, additional health related concerns, the decision to relocate her to a different nursing home, and difficulties in selling the home that had remained empty for more than year.  The case had a history of accounting disputes, as evidenced by a 2013 decision by the same judge, although it did not appear anyone had challenged the latest fees reviewed sua sponte by the court  in the 2017 decision.  

In another Pennsylvania opinion, this time from an appellate court but also unpublished, the court observed, apparently with approval, that in Allegheny County, the Guardianship Department in the Orphan's Court uses  "court investigators" to review guardians' requests for payment of fees from the incapacitated person's estate.  See e.g., In re Long, Superior Court of Pennsylvania, February 14, 2017 (not officially reported).  

I'm curious whether our readers have thoughts on "scheduled" fees for guardians?  

http://lawprofessors.typepad.com/elder_law/2017/10/how-much-should-guardians-be-paid-.html

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Comments

The judge approved the bill in full and the additional expense of the lawyers for the extra time spent questioning the bills. What a deal for the ward...and victim...and the Judge claims they aren't sure what is appropriate. Try putting yourself in their shoes and read Nancy Reagan "Just say No".

Posted by: Rick Black | Oct 13, 2017 4:41:24 AM

Scheduled fees for guardians need to be codified by state as part of the healthcare regulations. Further, such payment schedules need to be specific for the types of services provided to the ward, i.e., legal versus accounting.

Posted by: Carol Cooper Chadsey | Oct 13, 2017 6:31:21 AM

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