Posts Tagged ‘Utah Court of Appeals’

Petitioner Not Appointed Conservator, Pays Own Attorney

JULY 11, 2011 VOLUME 18 NUMBER 25
When appointment of a guardian and/or conservator is necessary, the cost of securing the appointment is usually a legitimate charge to be paid by the ward’s estate. There are exceptions, but the general rule is that the guardian’s and conservator’s fees, together with the fees charged by the attorney for the guardian and conservator, can be paid from the ward’s estate.

What happens, though, when a guardianship or conservatorship petition is unsuccessful, or when the person filing the petition is not ultimately appointed as guardian or conservator? Often (but not always) the parties and the court ultimately agree that the petitioner’s efforts — even though not completely successful — benefited the ward, and that their reasonable attorney’s fees should be paid. There is no completely clear authority for that proposition in Arizona, however, and the result could be different in each case.

Last week precisely that question was addressed in a case decided by an appeals court. It was not an Arizona court, but from our neighbor Utah — where the laws are very similar. That does not mean that the Utah decision would be followed in Arizona, but it is certainly an indicator of what an Arizona court might decide in a contested proceeding.

Margaret Guynn lived on her own in Texas until 2009, when her son Donald Bruce Guynn moved her to an assisted living facility in Salt Lake City so that she would be closer to him. A few months later Ms. Guynn’s other child, Catherine Ortega, decided that mother needed the protection of the courts and she filed a petition seeking her own appointment as Ms. Guynn’s guardian and conservator.

Both mother and son vigorously objected that she was not incapacitated and that appointment of a guardian and conservator was unnecessary. In order to avoid expensive and protracted litigation, however, Ms. Guynn agreed that her son (not her daughter) could be appointed as limited conservator of her estate. That would have the effect of requiring him to file an annual accounting with the court for his administration of her funds, but it left him in charge of her finances.

Once the limited conservatorship was in place, Ms. Ortega asked the court to approve payment of her attorney’s fees from her mother’s funds. Mr. Guynn objected, and the probate judge decided that she was not entitled to the payment.

The Utah Court of Appeals agreed. It noted the general rule that, absent specific statutory authority, one party is not entitled to be paid by another for attorneys fees incurred in litigation. In this case, Ms. Ortega’s petition was not successful, and the appellate court saw not reason to order her mother to pay her fees and costs. Matter of Guardianship of Guynn, June 30, 2011.

Arizona’s statute is similar, although it has undergone a number of changes in the past few years. None of those changes, however, would clarify whether an unsuccessful petitioner might be entitled to be paid from the ward’s funds. Recent Arizona cases and intense court and media attention have thrown some light on how the courts might calculate the reasonableness of fees, but not on whether the payment might be made at all. The current statute with regard to conservatorships, Arizona Revised Statutes section 14-5414, addresses an interesting variation on the question: would Ms. Guynn’s attorney, or her proposed conservator’s attorney, have a right to recover fees from her daughter if she had simply dropped the petition? Probably yes, but there is less clarity about how the Guynn question might be addressed by Arizona courts.

Dispute Over Family Home Pits Children Against Stepchildren

OCTOBER 19, 2009  VOLUME 16, NUMBER 58

More than a decade ago we told you about a Utah case involving a widower’s remarriage (see Surviving Spouse Revokes Trust–Children Disinherited from February 2, 1998) . Although the children of the deceased woman and her surviving husband were supposed to receive everything on his later death, the widower revoked his living trust and transferred everything to his new wife. The children were effectively disinherited.

Of course we see that result all the time, as unanticipated shifts in family dynamics follow death and remarriage. When two people with grown families marry, they seldom consider, much less carefully plan, what will happen when the inevitable occurs. Now an interesting case — and, interestingly, again out of Provo, Utah — raises an unusual variant of the same story.

Harold and Edith LeFevre had seven adult children. After Edith died in 1987, Harold married Ellen Stout, who had five grown children of her own. When Harold died in 1993, he had made no estate plan at all. The second Mrs. LeFevre met with her late husband’s children to discuss his estate, and they all agreed that she should live in the family home for the rest of her life. She agreed that she would create a trust that left the home to the children, and that she would handle the probate of Harold’s estate to get the house into the trust.

One month after Harold’s death his widow met with her attorney to plan her own estate. The trust she had him prepare, however, did not resemble the agreement she had entered into with her stepchildren. Instead, the LeFevre family home was left half to her stepchildren and half to her own children.

Ellen then handled the probate of her late husband’s estate, transferring the residence into the trust she had created. Two years later, she amended the trust to disinherit the LeFevre children altogether, leaving the home and all her other assets to her children only.

For nearly a decade Ellen LeFevre lived in the home, becoming increasingly reclusive and withdrawn. Her son encouraged her to cut off communication with her stepchildren, and when she died in 2004 they were not even aware of the fact for some months. After they learned of her death and requested a copy of the trust, they were surprised to learn that they would not receive any portion of their father’s estate.

In a contested proceeding, the probate judge imposed a “constructive” trust, ruling that Ellen LeFevre had agreed to place the home in trust and then had violated that agreement. The Utah Court of Appeals agreed, and ordered that the home be transferred back to the LeFevre children.

According to the appellate judges, Ellen LeFevre had entered into a valid agreement, she had breached the terms of that agreement, and her children had been “unjustly enriched” as a result of her breach. The appellate court did not agree with the children that they should have their attorney’s fees paid by Ellen LeFevre’s estate. In the Matter of the Estate of LeFevre, October 9, 2009.

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