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PROBATE 39: When a ward has retained his or her own legal counsel, it is error for the probate court to appoint an attorney.

This case arises from an Adult Protective Services (APS) petition for guardianship of  the ward.  The ward lived with her son and his wife.  APS’s petition filed in June 2018 claimed that the ward had dementia, was being left unsupervised for several hours and was not taking her medications as prescribed.  The petition nominated a professional guardian.  The probate court appointed a guardian ad litem for the ward, and the guardian ad litem later reported that the ward was contesting the petition and objected to the appointment of the nominated guardian. 

Objections filed

In July 2018, Petitioner filed an objection to APS’s petition and a competing petition nominating himself as guardian.  The ward signed the petition, requesting that Petitioner be appointed guardian should the court determine she required one.  After a hearing on July 25, 2018, the probate court entered an order appointing an attorney for the ward and released the guardian ad litem.  

The ward retained her own counsel and the probate court decided to keep the court appointed attorney on as co-counsel.  After appointing Petitioner as guardian at a contested guardianship hearing, the Probate Court directed the court appointed attorney to “bill the estate.”

At a review hearing  March 21, 2019 review hearing, Petitioner objected to paying the Court appointed attorney’s fees because it would deplete the estate.  The probate court rejected his objection and ordered payment within 48 hours.  The probate court also denied Petitioner’s motion for reconsideration on the attorney fee issue.

Court of Appeals findings

The appellate court agreed that the probate court erroneously allowed the court appointed counsel  to remain as the ward’s co- counsel at the contested guardianship hearing.because she had already retained her own counsel by the time of the hearing.  However, reasonable fees may be imposed against the ward for the court-appointed attorney’s prehearing services because the appointment was proper during that time.  Further, the ward  is entitled to a determination of indigency before the probate court may order payment of the remaining fees. 

Facing Probate and Estate Administration

If you have lost a loved one, the last thing you should have to deal with at this time is the confusing and often frustrating process of probate.

Aldrich Legal Services offers comprehensive guidance throughout the probate process, including the filing of petitions, notices to creditors, distribution of assets to beneficiaries and other services required throughout the probate process. We offer probate services for clients whose loved ones died with or without a will.

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