On January 28, 2013, In the Matter of Fred Rizzo, A-2997-11T4, the Appellate Division considered the issue of attorneys’ fees in a guardianship action. By way of background, in 2007, Fred Rizzo appointed his son, Douglas power of attorney.  In May 2011, the Bergen County Board of Social Services filed a Complaint for guardianship.  The court appointed an attorney to represent Fred Rizzo, and that attorney thereafter incurred reasonable fees.  Ultimately, the court appointed Douglas as guardian for his father.  The court also ordered that Douglas was personally liable for his father’s attorneys’ fees. In its decision, the court relied on R.4:86-4, which states: “The compensation of … appointed counsel … may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct.” R. 4:86-4(e). Fred owned no liquid assets.  His only asset was the equity in his house in which he, Douglas, and Douglas’s family resided.  His only income was his monthly Social Security payment. The court stated it would be inequitable to force his attorney to wait until Fred’s death if the estate did not have sufficient funds to pay his fees. … Continue reading →

   In the Matter of the Estate of Booker, Superior Court of New Jersey, Appellate Division, A-0382-11T2, the Court denied an application for attorneys’ fees.      Here, the decedent died intestate.  His sole heir was an adult son.  As such, the decedent’s mother retained an attorney to file an action seeking, among other relief, the creation of a special needs trust for her grandson (the decedent’s son).  Also, she sought, in a separate action, to be appointed guardian for her grandson.     Approximately six (6) months following the filing of the Complaints, the decedent’s mother discharged her attorney.  She also withdrew the guardianship application – filed by the attorney – because it was deficient on its face, not even having the requisite affidavits from two medical doctors.  Furthermore, the guardianship action was improperly filed in New Jersey because the alleged incapacitated person was a resident of Pennsylvania, and therefore, the proper venue would have been in Pennsylvania.  The trial court also noted that the plaintiff (decedent’s mother) had not demonstrated how her actions aided in preserving or protecting the fund in court.  Rather, quite to the contrary, the Court was concerned by allegations of possible misappropriation of the estate assets … Continue reading →