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WHO PAYS THE ATTORNEYS’ FEES IN A GUARDIANSHIP CASE

The process of filing for an adult guardianship creates a legal relationship between a person who needs assistance with daily affairs, called a ward, and a guardian, who is the person appointed to provide that assistance. There are many reasons why an adult may benefit from the appointment of a guardian: a long-term disability, advanced age or a brain injury may make it very difficult, if not impossible, for an adult to manage money or care properly for his or her person or estate. For a guardian to be appointed one must file an application with the court, after which the court will hold a hearing and the judge will decide whether or not to make an appointment.

A guardianship proceeding can be expensive, and the payment of fees can be an issue. If the judge creates a guardianship, the fees can be paid out of the ward’s estate. However, if the court does not appoint a guardian or finds that the application was filed in bad faith, the applicant may be denied reimbursement for the expenses he or she incurred in filing. Such was the case in a recent Fort Bend County guardianship proceeding.

THE APPLICABLE LAW

The Texas Guardianship Association lists the following as the expenses associated with filing for a guardianship:

  • County clerk fees for filing and service of process
  • Fees of the applicant’s attorney
  • Attorney ad litem fees (an attorney ad litem is a lawyer appointed to represent the interests of the proposed ward)
  • Medical examination costs
  • Bond premiums

If the proposed ward is indigent, the guardianship fees or a potion thereof may be paid from county funds.

A RECENT CASE REGARDING GUARDIANSHIP FEES

In a recent case on appeal from a Fort Bend county court, In re Guardianship of Whitt, a woman sought the appointment of a guardian for her father. The court had denied the daughter’s application, but she nonetheless sought payment of more than $64,000 in fees from her father’s estate. In support of her request for fees, she cited an affidavit signed by her attorney and the attorney ad litem, the attorney representing her father in the proceeding, stating that she had good cause to file the application. The trial court refused the application for fees. She then appealed the court’s denial of fees.

The appellate court noted that the trial court was not authorized to award the daughter fees under any of the three statutes allowing for fees that might have been applicable to the proceeding. Because the guardianship application was denied, the father could not be considered a ward nor could his property be considered an estate; thus none of the statutes authorizing the payment of fees in a guardianship proceeding could apply.

As this case illustrates, a guardianship proceeding can be costly. For that reason, among others, many people opt to pursue alternatives to filing a guardianship application. If you have questions about a guardianship proceeding or its alternatives, an experienced attorney can provide direction.