In In the Matter of A.D., an alleged incapacitated person (A-30/31-23/088942) (Decided December 11, 2024),the New Jersey Supreme Court held that a court-appointed attorney and temporary guardian for an “alleged incapacitated person” under Rule 4:86 was not entitled to an award of legal fees against an adult protective services provider. According to the state’s highest court, there is no support in the governing statutes, the court rules, or New Jersey case law for such fee awards.
Facts of In the Matter of A.D.
In June 2020, after the Sussex County Division of Social Services, Office of Adult Protective Services (APS), filed a verified complaint seeking a plenary guardianship and other assistance for “Hank,” petitioner Steven J. Kossup was designated as Hank’s court-appointed attorney and petitioner Brian C. Lundquist was designated as his temporary guardian for the duration of the guardianship proceedings. The order making those appointments included two alternative provisions regarding the payment of the court-appointed attorney’s fees; the second alternative, providing for the court-appointed attorney’s fees to be paid, was checked. The order did not address fees incurred by the temporary guardian. It was signed by the Sussex County Surrogate, not the trial judge.
In a certification from February 2021, Lundquist described his unsuccessful efforts to locate a state agency, private organization, or individual willing to serve as Hank’s permanent plenary guardian. Lundquist reported, however, that he and Kossup had taken critical steps to ensure that Hank had stable housing, financial assistance, medical care, and other necessary services. Lundquist asserted that because Hank had access to those services, he did not require a permanent plenary guardian. In the wake of those developments, Kossup concurred with Lundquist’s view that the trial court should order a limited guardianship. Based on the recommendations of two physicians, APS maintained its position that a permanent plenary guardian should be appointed for Hank. At his own expense, Lundquist retained an expert psychologist to evaluate Hank. The psychologist opined in a report that Hank did not require the appointment of a plenary guardian but needed only “a limited guardianship in the legal and medical domains.” The court ultimately agreed that Hank did not require a plenary guardian.
In advance of the guardianship hearing, Kossup and Lundquist submitted certifications setting forth the services they had provided to Hank, with fee applications. APS stated that it had no objection to the amount of the fees sought but argued that it should not be responsible to pay any fee award because fee awards in cases like this would compromise its ability to meet its clients’ needs. The trial court expressed its appreciation for the “significant efforts” of Kossup and Lundquist, but it found no basis for the fees in the Adult Protective Services Act (APS Act) and declined to construe Rule 4:86-4(e) to require APS to pay the fees of court-appointed attorneys. Accordingly, the trial court denied the fee applications. The Appellate Division affirmed.
NJ Supreme Court’s Decision in In the Matter of A.D.
The New Jersey Supreme Court affirmed in a unanimous per curiam opinion. “[W]e find no support in the governing statutes, the court rules, or our case law for the fee awards sought in this appeal, and we accordingly affirm the judgment of the Appellate Division.”
In reaching its decision, the New Jersey Supreme Court explained that under the American Rule, fee-shifting will not occur unless a statute or Court Rule permits it. The Court went on to address two exceptions. The first being the exception for ‘all cases where attorney’s fees are permitted by statute under Rule 4:42-9(a)(8), and the second being the exception prescribed by court rule that allows fee awards in specific probate actions, including guardianship proceedings in certain instances under Rule 4:42-9(a)(3) and Rule 4:86-4(e).
The New Jersey Supreme Court first found that while the statutes governing guardianships “provide for fee awards against the estate of the alleged incapacitated person,” they do not “authorize[ ] an award of fees against an adult protective services provider such as APS.” It next addressed the second exception, finding it also did not support the award of fees.
According to the Court, Rule 4:42-9(a)(3) “does not create a new exception to the American Rule,” as “[t]he Legislature has not authorized fee awards in these cases against any entity but the alleged incapacitated person’s estate.” It further found that “the record indicates that APS does not have sufficient resources to pay the fees of court-appointed counsel and temporary guardians and the suggestion that the Court should order an increase in APS’s funding “ignores separation of powers principles.” Finally, the New Jersey Supreme Court noted that the fee provision in the June 2020 order was confusing and cautioned judges that a lawyer asked to serve as counsel or guardian for an alleged incapacitated person should be told that the court anticipates the lawyer will serve pro bono if the estate lacks resources to pay the lawyer’s fees. It also suggested that before retaining experts in a guardianship matter, temporary guardians serving pro bono raise the question of expert fees with the court and opposing counsel and determine whether resources are available to defray all or part of those fees.