Counsel Fees of Alleged Incapacitated Persons Denied

It was not an abuse of discretion for the Orphans’ Court to deny the attorney fees requested by a law firm representing alleged incapacitated persons (“AIPs”) when the firm’s engagement letter was voidable because it was signed by the AIPs after they had shown deficits in judgment and memory (and had been evaluated by doctors whose reports were introduced at the guardianship hearing), and the engagement letter referred only to a “property transaction.” The firm was also denied recovery in quantum meruit because it failed to meet its burden of showing that its services (and fees) were reasonable and necessary, and in its appeal the firm failed to identify the “substantial, significant evidence” in support of its fees that it claimed the court had disregarded and so waived that issue. Estate of A.J.M., 2024 PA Super 4, ___A.3d ___ (1/11/2024).

[DBE Commentary: The Superior Court stated that the denial of legal fees in no way deprived the AIPs of their right to representation by counsel of their choosing, and yet not allowing counsel to be paid would seem to limit the right to representation. A close reading of the opinion suggests that it was based on an unusual combination of circumstances, and that some of the problems the law firm faced were of its own making. For example: The lawyer in question met with potential clients (the AIPs) who were in their 80s and in cognitive decline, but apparently took no steps to independently evaluate their competence. The lawyer represented to the courts that the AIPs “vehemently” opposed the guardianship proceedings but they never testified during the guardianship proceedings and so there was no evidence in the record about their wishes. The AIPs already had powers of attorney naming their sons as agents, and the court found that the sons were “appropriately managing their affairs,” but the lawyer never consulted with the sons before preparing new powers of attorney and when the sons discovered that there were new powers of attorney naming a corporate fiduciary, they “immediately instituted the guardianship proceedings to protect their parents.” The lawyer appeared for the AIPs during the two day hearing, but did not call any witnesses or introduce any evidence on the issue of capacity. Finally, the lawyer claimed fees and costs of more than $37,000 but (according to the court) failed to explain how or why the legal services were so “extensive” as to justify those fees.]

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