A recent statute, implemented in 2015, provides that an individual who seeks to have a guardian appointed over another may, under certain circumstances, recover any attorneys’ fees incurred through that process. RSA 464-A:43 provides that the Probate Division Judge may direct a ward to pay the attorneys’ fees of the petitioner in a guardianship matter so long as the guardianship requested has actually been granted, an award of fees would not cause undue financial hardship to the ward, and the legal fees incurred are deemed to be reasonable and necessary to protect the ward. So, although it is no guaranty that a petitioner in a guardianship case will recover fees, there is statutory authority that allows for that recovery.
However, a recent Probate Division decision places a limitation on a potential attorneys’ fees award. In the case at issue, the ward had been under guardianship for about 12 years. Upon the death of the guardian, two sisters of the ward petitioned the court to serve as the successor guardians. A contested hearing was held whereby the court heard evidence regarding the competing requests. After a hearing, the court appointed one sister over the other to serve as guardian for their brother. Thereafter, the newly appointed successor guardian filed a motion requesting that the court direct the ward’s estate to pay for the attorneys’ fees incurred in bringing that petition citing RSA 464-A:43. The court, after reviewing the statutory language, determined that the statute only provides for an award of attorneys’ fees incurred by the “imposition of a guardianship.” The court determined that, because a guardianship had already been in place, and the prevailing party in the case had not incurred costs in order to impose that guardianship, the statute did not apply and the request for attorneys’ fees was denied.
Although the Supreme Court has not issued any ruling interpreting the scope of this statute, this lower court order is a reminder that the role of the Probate Division is to protect the interests of a ward. It is not surprising then that the court would seek to limit the extent to which a party is entitled to recover attorneys’ fees from the ward incurred in a guardianship proceeding.
