Fees for Appointment of Guardian not Reimbursable

Daughter’s request for reimbursement for legal fees and costs incurred in guardianship proceedings for her incapacitated father was denied because the daughter did not create new funds for her father or “provide a similar special service,” and an incapacitated person’s estate must be used exclusively for that person’s care and management. Clark, an Incapacitated Person, 11 Fid.Rep.3d 142 (Chester O.C. 2021).

[DBE Comment: This conclusion is almost surely wrong. The costs of the administration of an incapacitated person’s estate is normally paid from the estate, and there can’t be any administration or management until a guardian is appointed, so the reasonable costs of the appointment of the guardian should be considered administrative costs of the estate, just as the costs of probating a will or obtaining letters of administration are normally paid from the estate. For examples of legal fees that are not reimbursable from an estate, see “Non-Reimbursable Legal Fees of Fiduciaries.”]

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