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Details Missing from Post Guardianship Article

By Harry S. Margolis

Last week, I wrote a blog post about a guardianship case reported in The Washington Post about a challenge to the guardianship fees charged by an experienced elder law firm in Falls Church, Virginia.

The Post article took the firm of Needham Mitnick & Pollack (NMP) to task for the fees it charged for administrative functions while acting as court-appointed guardian for seven incapacitated individuals. It had charged its standard rates rather than hiring outside assistance at lower rates. The commissioner of accounts has challenged NMP’s fees and is seeking the return of more than $200,000.

Since writing that blog post, I’ve learned a few facts about the case that weren’t reported in the article:

  • The commissioner of accounts is seeking the disgorgement of fees paid and approved as long as seven years ago.
  • A guardian ad litem had reviewed NMP’s work and fees and approved all of both (less one $700 charge), rejecting the commissioner’s claims.
  • The trial court approved all of NMP’s time and work, remanding the case to the commissioner to review the rates it charged for “non-legal tasks” only.
  • NMP has appealed the remand to Virginia’s supreme court.

As the guardian ad litem said in his report, to ask NMP to disgorge fees the commissioner had previously approved many years in the past is incredibly unfair. To challenge fees charged at standard market rates, especially for work already taken on and completed, will discourage other experienced firms from taking on these cases.

If the commissioner chooses to set a lower fee schedule, to do so prospectively would not be unfair, but would discourage experienced attorneys from taking on these often difficult and complex cases. (These cases are assigned to lawyers and law firms only when family members disagree or no appropriate family members are available to serve.)

The result will be that less experienced attorneys will take on these challenging cases or attorneys will do the bare minimum to protect their wards in order not risk investing time and salaries that will not be reimbursed. It is hard to see how that helps the men and women meant to be protected.  (This, of course, does not mean that the commissioner shouldn’t be careful to guard against guardians and conservators over charging or over working their cases.)

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