Legislative Watch: Ensuring Access to Guardianship System
Some families cannot afford to seek guardianship of incompetent
individuals. Senate Bill 158 attempts to remedy this situation by
permitting, in certain cases, payment of petitioner's attorney fees from
the adjudicated ward's estate.
By Alberta Darling
Last May I introduced legislation - Senate Bill
158 - that would permit in certain guardianship cases, payment of
petitioner's attorney fees from the ward's estate. This bill is in
response to the 1997 case, Community Care of Milwaukee County v.
Evelyn O.1
In Evelyn O., the Wisconsin Court of
Appeals held that an adjudicated ward may not be charged for the
petitioners' attorney fees. The court held that attorney fees followed
the American rule - that each party pay for its own attorney fees -
absent a statute specifically shifting the attorney fees of the "losing"
party to the successful party. The petitioners in the case had argued
that the attorney fees were payable as a ward's "just debts" under section
880.19 of the Wisconsin Statutes. The court rejected the argument,
explaining that the wards in the case clearly had not sought out the
petitioners' attorneys' services (indeed the wards had opposed the
guardianship) and further, the attorney fees were incurred before the
court had declared the wards incompetent.
As a result of this court case, elder law attorneys, county social
services, adult protective service agencies, and advocates reported to
me that the court decision has made it very difficult for some
functionally incompetent individuals to receive the protections of the
guardianship system. This is a result of the financial burden on
concerned family members about paying the petitioner's attorney
fees.
A few individuals have indicated that they believe it would be
fundamentally unfair to make an adjudicated ward pay for the proceedings
that imposed the guardianship on him or her. They have suggested that
individuals can file pro se petitions (costing petitioners no attorney
fees) or request that corporation counsel file petitions. Proponents of
SB 158, however, have pointed out that the filing of pro se petitions
can be difficult under the best of circumstances, much less in
situations in which there is great family stress. They also have pointed
out that corporation counsel in most counties do not have the resources
to assume responsibility for filing all of these petitions. Furthermore,
they point out that guardianship should not be perceived as stripping
individuals of their rights but rather as providing a conscientious
substitute decisionmaker to ensure that an incompetent individual's
rights are honored.
After consulting with advocates and attorneys active in guardianship
matters, I agreed to author this legislation that I believe will
carefully balance the interests of the adjudicated ward.
The relevant part of the proposal, SB 158, would create section
880.24(3) of the Wisconsin Statutes, as follows.
Proposed Section 880.24(3)
FEES AND COSTS OF PETITIONER. (a) When a guardian is appointed, the
court shall award from the ward's estate payment of the petitioner's
reasonable attorney fees and costs unless the court finds after
considering all of the following ... that it would be inequitable to do
so:
1. The petitioner's interest in the matter, including any conflict of
interest that the petitioner may have had in pursuing the
guardianship.
2. Whether the ward had executed a durable power of attorney under s.
243.07, Stats.,2 or had engaged in other
advance planning to avoid guardianship.
3. The ability of the ward's estate to pay the petitioner's
reasonable attorney fees and costs.
4. Whether the guardianship was contested and, if so, the nature of
the contest.
5. Any other factors that the court considers to be relevant.
Sen. Darling represents the 8th
Senate District, comprised of portions of Milwaukee, Ozaukee,
Washington, and Waukesha Counties. She is the author of Wisconsin's
Sexual Predator and Community Notification laws.
Additional language in the legislative proposal makes clear that the
existence of the power of attorney, without at least one of the other
factors, may not preclude the awarding of attorney fees since, for
example, an individual may have a power of attorney that is not
comprehensive enough (for example, only addresses some of the
individual's financial interests), so that a guardianship is later
necessary. The proposal also identifies that it would first apply to
petitions that were pending on the effective date of the law, if and
when it passes.
The State Bar of Wisconsin Elder Law Section and the Coalition of
Wisconsin Aging Groups' Elder Law Center worked very closely with me in
drafting the bill's language and are supporting the bill. I am very
grateful for their counsel and support. The State Bar Real Property,
Probate and Trust Law Section supports the bill; the Milwaukee Bar
Association's Board of Directors also has voted to support SB 158.
The bill, which has 15 legislative cosponsors, has been referred to
the Senate Judiciary and Consumer Affairs Committee.
Endnotes
1 Community Care of Milwaukee County v.
Evelyn O., 214 Wis. 2d 433 (Ct. App. 1997).
2 It is probable that an amendment
will be suggested that also will include reference to the ward having
previously executed a power of attorney for health care under chapter
155 of the Wisconsin Statutes.
Wisconsin
Lawyer
