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Case Highlights Conflict for Attorneys Acting as Guardian

By Harry S. Margolis

A guardianship case recently reported in The Washington Post examines the difficulties and conflicts attorneys face when they act as guardian for disabled individuals.

Most guardians are family members of the protected person, but attorneys are often appointed when there is no appropriate family member available or when family members are in conflict. In such cases, the costs to the ward are much higher because the attorney generally charges for her time and for that of staff members who work on the case.  In Massachusetts and many other states, the fees must be approved by the probate court.

The case reported by The Post involves a challenge to the fees charged by the firm of Falls Church, Virginia, attorney Helen Cohn Needham, a long-time leader of the National Academy of Elder Law Attorneys. Helen Cohn Needham

The family members of one ward challenged the firm’s fees, including charges of up to $125 an hour “for personal services, such as renewing dog licenses, sorting boxes and preparing instructions on emptying a dryer’s lint trap.”  Charges to auction of $1,800 worth of possessions totaled $6,300.  The firm “billed at $95 an hour to fill out Social Security forms and obtain bank balances, and at $105 an hour to call a plumber and check information on the Department of Motor Vehicles Web site.”

The article quoted other local elder law attorneys as saying that they hire outside services at a lower cost of $20 to $40 an hour to handle these tasks.

As an atto rney who ttakes oon guardianship and conservatorship appointments occasionally, this challenge to the Needham firm’s charges is worrisome. It’s hourly charges seem totally consistent with what law firms charge for paralegal time, even a bit low.  The fees reflect the paralegal’s salary, benefits, a share of the overhead of maintaining a law firm, the risk the attorney take in committing to employ the individual, as well as the attorney’s potential liability for the paralegal’s actions.

When a law firm steps into a guardianship it is often picking up the pieces of a dysfunctional situation. (In this case, the Needham firm was appointed because of a dispute between family members.) At the outset of a new case, it can be very time-consuming and expensive, for the attorney and staff to collect all of the necessary background to make vital decisions and to get control over a situation. While it’s possible in hindsight that the firm may have been able to find less expensive ways to do its work, second guessing is easy. The firm has the responsibility of protecting the individual and his property as quickly as possible.

In Massachusetts, where guardians and conservators may only be paid with court approval, they typically submit their bills once or twice a year. All next of kin are provided notice of the petition and may ask questions about the bill and the time spent. Ultimately, a probate court judge approves or disapproves of the invoice. During the time that the attorney is doing the work, she is not paid and can’t be sure she will be paid.  At the same time, she must pay her staff and other overhead, as well as make sure she meets her duties to her ward.

While oversight is important, and attorneys should always seek to accomplish their responsibilities at as alow a cost as possible, the challenge to the Needham firm which according to the article is on its way to Virginia’s highest court will give pause to law firms considering taking on guardianships and conservatorships.

Some states have public guardians who are paid by taxpayers to protect individuals who do not have family members to fill this role. This may be a better system, but most states are reluctant to take on any new costs or responsibilities.

Click here to read the entire article from The Post.

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