GUARDIAN/CONSERVATOR, ATTORNEY, COURT FEES

ByAaron Hall Business Law

GUARDIAN/CONSERVATOR, ATTORNEY, COURT FEES

A. COURT FEES

1. Filing Fees

At the time of initial filing of the Petition to establish a guardianship/conservatorship you will be required to pay a filing fee. Check with the County that you are filing the petition in for their current fee schedule.

2. Copies of documents

Copies of documents filed with the Court can be obtained upon request. Check with the County you filed the Petition in for their current fee schedule.

B. HOW TO PAY GUARDIAN OR CONSERVATOR, AND ATTORNEY FEES

Minnesota Statutes section 524.5-502 sets forth the authority for compensation for services rendered on behalf of the ward or protected person. A lawyer or health professional rendering necessary services related to the appointment of a guardian or conservator, the administration of the protected person’s estate or personal affairs, or the restoration of that person’s capacity or termination of the protective proceedings shall be entitled to compensation from the protected person’s estate or from the county having jurisdiction over the proceedings if the ward or protected person is indigent.

The court may order payment of reasonable fees to be paid from the estate of the ward or protected person, or from the county having jurisdiction over the proceedings if the ward or protected person is indigent, to the guardian or conservator when he or she has rendered necessary services or has incurred necessary expenses for the benefit of the ward or protected person.

A guardian or conservator may petition the court for reimbursement or reasonable compensation when he or she was nominated by the court or by the county adult protection unit because no suitable relative or other person was available to provide guardianship or conservatorship services necessary to prevent abuse or neglect of a vulnerable adult as defined in the Vulnerable Adult Act.

In order to receive an award of fees by the court under this statute, it is necessary to prove, and the court must make, the following findings of fact;

  • the person is legally appointed the guardian of the person or conservator of the estate, or of both;
  • the services rendered or expenses incurred are necessary;
  • the services rendered or expenses incurred are for the benefit of the ward or protected person; and
  • reimbursement of expenses must be actual amounts incurred; compensation for services rendered (fees) must be reasonable.

1. For Ward’s or Protected Person’s with assets

If the ward or protected person has assets, the court may order reimbursement or compensation to be paid for out of the ward’s or protected person’s estate. This is generally accomplished by including the amount of fees paid and expenses reimbursed on the annual account, and requesting that the court approve the account. It is generally not necessary to file a separate petition with the court for approval of fees.

2. For Ward’s or Protected Person’s who are indigent

If the ward or protected person is indigent, the court may order reimbursement or reasonable compensation from the county having jurisdiction over the guardianship or conservatorship. In this case, in addition to the four findings above, the court must make a fifth finding that the ward or protected person is indigent. Generally, a person is considered indigent when the standard for proceeding in forma pauperis is met. This standard is outlined in Minnesota Statutes section 563.01, subdivision 3, and includes, but is not limited to:

  • A ward or protected person who is receiving public assistance.
  • A ward or protected person who is represented by an attorney on behalf of a civil legal services program or a volunteer attorney program based on indigency.
  • A ward or protected person whose annual income is not greater than 125 percent of the poverty line established under United States Code, title 42, section 9902(2).

C. WHAT ARE THE PROCEDURES FOR COLLECTING GUARDIANSHIP OR CONSERVATORSHIP FEES?

  • Regardless of whether or not the ward or protected person has assets, the guardian or conservator must keep an accurate record of the services performed for the benefit of the ward or protected person. A log should be kept which tracks the date of service, service performed, and the amount of time spent.If the ward or protected person is an indigent person, in forma pauperis status should be requested from the probate court (discussed in section D). This is accomplished by filing a Petition and Affidavit to Proceed In Forma Pauperis, and a proposed Order Granting In Forma Pauperis.Once In Forma Pauperis status is granted, court costs or fees concerned with the guardianship or conservatorship will be waived. This includes initial filing fees, service of process fees, and costs of certified copies of Letters or other documents. This can be done when establishing the guardianship or conservatorship, or at any time during the course of the guardianship or conservatorship if the ward or protected person becomes indigent at a later date.
  • If the ward or protected person is an indigent person and resides in an institution, the guardian or conservator should consult the county financial worker to ask that guardian’s or conservator’s fees be included in the determination of monthly reductions of five percent of income. The financial worker does not automatically do this; it must be requested. This payment is deducted from the gross income on the calculation sheet, which is sent to the institution. It is the guardian’s or conservator’s responsibility to actually collect the fees.
  • If the ward or protected person has assets, the guardian or conservator of the estate may pay him or herself a reasonable fee out of the assets. Reasonability will be factored upon the difficulty of the case, the experience of the ward or conservator, and the going rate for services in the area. Different counties have different standards to determine reasonability. Remember that the amount of the guardian or conservator compensation will be reported on the annual account, that at a hearing to allow the annual account any interested person has the right to contest the reasonability of the guardian or conservator fees, and the judge is the final arbiter.

Contact the court administrator for the court’s procedures on filing.

1. Must the Court Order the Payment of Fees?

The short answer is, no. The language of Minnesota Statutes section 524.5-502 states that the court may order reimbursement or reasonable compensation. This is a discretionary decision on the part of the court, not mandatory. There is a great difference around the state as to how counties respond to this language.

Some counties have now requested input at the initiation of the guardianship or conservatorship.

If the county is going to be the responsible party for payment of the fees, they are entitled to notice of the initial hearing to establish whether a guardianship or conservatorship is really necessary, that is, that there are no less restrictive alternatives available which will meet the proposed ward’s or protected person’s needs. Some county adult protection units have developed “screening teams” in order to screen out petitions where such services are not really necessary.

2. What if Fees are Very High?

If the expenses incurred or compensation amount is extraordinarily high, it is possible to ask the court for an order allowing the fees. An ex parte petition (a petition filed with the court without a hearing) is usually sufficient. If there is some concern that the county or some other interested person may have an interest in contesting the fees, it is also possible to ask for a hearing on the petition, giving the interested parties notice of the hearing and an opportunity to be heard concerning the reasonability or necessity of the compensation.

D. FILING IN FORMA PAUPERIS

1. What will In Forma Pauperis status pay for?

In Forma Pauperis status not only excuses payment of attorney, health professional fees incurred in order to establish or maintain a guardianship or conservatorship, and the related court filing fees, but also includes costs for service of process upon the proposed ward or protected person, for costs of certified copies of forms, and photocopy costs. These costs are then absorbed by the court system.

2. What if the Petitioner will not be using an attorney?

If a petitioner wants to proceed with a guardianship or conservatorship pro se, that is, without using an attorney, or if he or she wants to use a private attorney, and in either case cannot afford court costs, the Petitioner may complete and file the Petition and Affidavit for Proceeding In Forma Pauperis on behalf of the ward or protected person. The Petitioner will list the income and asset information of the ward or protected person on the Petition and Affidavit for In Forma Pauperis.

3. What forms are needed?

To petition for In Forma Pauperis, there are two forms that must be filed at the same time the petitioner files for guardianship or conservatorship (see court forms IFP401 and IFP402 under court form category Fee Waiver / In Forma Pauperis or as a packet under court form category Guardianship / Conservatorship). These forms can be obtained at the Court Administration Office or online at www.mncourts.gov/forms.

i. Petition and Affidavit for Proceeding In Forma Pauperis. The Petition and Affidavit is signed by the petitioner in front of a notary public.

ii. Order For Proceeding In Forma Pauperis. The Order is filled out by the petitioner’s attorney, or by the petitioner if proceeding pro se, except for signature by the Judge hearing the case.