MARCH 23, 1998 VOLUME 5, NUMBER 38
It is increasingly common for government services to be contracted out to private companies. In Milwaukee County, Wisconsin, even elder abuse monitoring and prevention services are handled by a private corporation, Community Care Organization. Of course, the elderly victims of abuse and exploitation often require the appointment of a guardian or conservator; Community Care files petitions with the local Court when such proceedings are necessary.
In 1996, Community Care filed guardianship petitions against two elders, identified by the courts as Evelyn O. and Thyra K. Both women objected to the guardianships, and the same lawyer was appointed to represent both.
After preliminary negotiations and discussions, the lawyer representing Evelyn O. and Thyra K. ultimately stipulated to the appointment of a guardian for both women. After appointment of a guardian, Community Care submitted its bill in each case for the legal costs associated with the petition. The court-appointed attorney objected to payment of the fees from the women’s assets.
Wisconsin’s guardianship statutes direct that the guardian should pay the “just debts” of the ward. Based on that statute, the judge ordered Evelyn O. and Thyra K. to pay Community Care’s legal fees. The women’s attorney appealed the judge’s order.
While the case was pending in Wisconsin’s Court of Appeals, both Evelyn O. and Thyra K. died. Nonetheless, the Court of Appeals decided to reverse the order that fees be paid. The court noted that the usual rule is that one party, even if successful, should not be made to pay another party’s legal fees; in order to change that result, said the court, the legislature would need to give clear and specific authority for an award of legal fees.
Even though the petitions were finally successful, said the court, the women were not obligated to pay their opponent’s legal fees. “Although Community Care argues that it performed a service for Evelyn O. and Thyra K. by successfully putting them under the protective wings of others, and contends that it should be paid for this service, it neither contracted with either Evelyn O. or Thyra K. for this service nor received their approval for it…. Evelyn O. and Thyra K. were not obligated by any legal principle of which we are aware to supply bullets to their adversaries, either before or after the battle, even if the war is fought for what is ultimately determined to be in their benefit.”
The decision was based on a lack of specific authority for the order awarding attorneys fees, but the court also suggested that it might have reached the same result even if there had been a statute permitting the award. “Given the restrictions on liberty that flow from guardianship … we express no opinion about the constitutionality” of such a statute, said the judges. Guardianship of Evelyn O., Wisconsin Court of Appeals, October 28, 1997.
In Arizona, the result might have been different. Although the language of Arizona law is similar to Wisconsin, the practice of paying the legal costs of petitioning for appointment of a guardian and conservator is fairly common.
Arizona law requires a conservator (the equivalent, for these purposes, of Wisconsin’s “general guardian”) to pay “all just claims against the estate.” Note that Wisconsin law refers to the “just debts” of the ward, while Arizona instead describes the “just claims against the estate.” This subtle difference may be enough to permit Arizona petitioners to secure payment from the ward’s funds.
Another section of Arizona law permits a conservator to use the ward’s funds to pay for “support, education, care or benefit” of the ward. This gives rise to an argument that by appointing a conservator the court has indicated that the proceedings were for the benefit of the ward, and the petitioner’s legal costs should therefore be paid.