Clients are often rightfully concerned about the financial costs of bringing a guardianship action. No matter how complicated or simple, in each case there will be attorney’s fees for the person applying to become guardian (the plaintiff), attorney’s fees for the court-appointed attorney for the alleged incapacitated person, and costs associated with the exams and reports of the two doctors the plaintiff retains to support the application. If another party disputes that the plaintiff should be appointed guardian and seeks to be appointed instead, that party will also incur attorney’s fees if he or she is represented, and, if the issue of capacity is contested, that party or the alleged incapacitated person may also retain doctors to examine the alleged incapacitated person and prepare a report.
In any case, New Jersey law gives the court discretion to award fees and costs to be paid from the assets of the alleged incapacitated person. One factor the court will consider is the size of the alleged incapacitated person’s estate – the larger the estate, the more likely it is that the court will award fees. If there are insufficient assets, each party will bear its own costs, and the court will usually require the plaintiff to pay the fees of the court-appointed attorney. Another factor the court considers in exercising its discretion to award fees is the merit of each party’s claim. That does not mean that the losing party necessarily bears its own costs, although it is more likely. However, it does mean that if a party advances a position that, in the court’s mind, is not in the best interests of the alleged incapacitated person, fees usually will not be awarded. To be clear, subject to other good faith requirements under New Jersey law, a party is free to take any position it wants, but in guardianship litigation, it might not be able to do so at the expense of the estate of the alleged incapacitated person. This is all part of the court’s discretion under New Jersey law.
Procedurally, the court will address fees at the end of the case. Typically, any party seeking fees, and the court-appointed attorney, must file a certification of services prior to the hearing date. This certification should contain the attorney’s time entries and a description of services, just as if the attorney were sending an invoice to a client. Again, depending on the amount of assets and complexity of the case, the court may award less than the full amount requested. In addition, many counties have a standard hourly rate that will be applied to attorneys seeking to have their fees paid from the alleged incapacitated person’s estate in a guardianship action, unless the attorney seeking fees can justify a higher rate.
In short, many factors affect payment of fees in a New Jersey guardianship action. One thing to keep in mind is that court review of fee requests is intended to be a check on, not a rubber stamp of, counsel benefiting themselves from the assets of an incapacitated person. Therefore, if you will be asking the court to pay your attorney’s fees out of the estate of the alleged incapacitated person, it is important to consult with an attorney who is familiar with the process and knows how to handle the matter both successfully and efficiently.
If you have any questions, please contact one of our estate planning and administration attorneys.