Wednesday, April 27, 2011
Mark R. Caldwell (Attorney at Law, Phoenix, AZ) recently published his article entitled A Good Deed Repaid: Awarding Attorney’s Fees in Contested Guardianship Proceedings, 51 S. Tex. L. Rev. 439 (2009). The introduction is below:
Guardianships are often required to protect and care for incapacitated persons who have not executed advanced estate planning documents, such as medical or durable powers of attorney. As the aging population in Texas continues to grow, experts predict that the number of guardianships will increase dramatically. A guardianship is essentially a legal proceeding designed to supervise and protect individuals who are unable to care for themselves or manage their financial affairs. When contested, these proceedings can be expensive. An “interested person” may contest the creation of a guardianship or the appointment of a particular applicant as guardian. Typically, family and friends bear the initial costs of establishing or contesting a guardianship.
Texas Probate Code section 665B (§ 665B) provides that when a court creates a guardianship or management trust, the court may award attorney's fees out of the ward's estate to the attorney who represented the applicant at the application hearing if the applicant “acted in good faith and for just cause” in filing and prosecuting the application. This article explores § 665B and case law interpreting various issues affecting the section's requirements. As is the case with many Texas Probate Code sections, the case law interpreting § 665B is sparse. Analogies are therefore made to similar estate administration code sections in order to examine and uncover similar definitions and policy considerations surrounding awarding attorney's fees based on the aforementioned “good faith and for just cause” requirement. Allowing applicants who act in “good faith and for just cause” to recover attorney's fees from the proposed ward's estate encourages capable applicants to seek and establish guardianships and also protects the proposed ward's estate from unwarranted depletion.
Part II of this article discusses the legislative history of § 665B. Part III examines whether the typical methods of recovering attorney's fees in guardianship proceedings are applicable to contested guardianship proceedings. Part IV focuses on Texas cases dealing with attempts to recover attorney's fees under a “good faith and for just cause” standard after the original proceeding. Part V explores how various sources have defined “good faith and for just cause” and discusses the standard in the context of a guardianship proceeding. Part VI analyzes the relationship of standing and disqualification to the “good faith and for just cause” analysis. Finally, Part VII addresses potential litigation strategies to prove, oppose, and settle attorney fee issues.