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Vol. 72, No. 11, November
1999 |
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.
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