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  • Writer's pictureAlexander J. Kemeny

Appellate Division Rejects Court Appointed Attorney's Request that APS Pay His Legal Fees

            Yesterday, the Appellate Division issued a decision in In the Matter of A.D., where it held that New Jersey Adult Protective Services (APS) could not be compelled to pay the legal fees of the court appointed attorney and guardian ad litem of an alleged incapacitated person in guardianship action that had been initiated by APS. The appellate court found that, while the probate judge had authority to award legal fees and costs to the court appointed attorney and guardian ad litem, that authority did extend to compelling payment from APS.


New Jersey Guardianship Legal Fees

            In its decision, the court explained that New Jersey Court Rule 4:42-9 outlines "eight specific situations" when a court may grant attorneys' fees. Those instances include guardianship actions where courts are permitted to award fees in accordance with Court Rule 4:86-4(e) to attorneys for the party seeking guardianship, attorneys appointed to represent the alleged incapacitated person, and guardians ad litem.


            Since the alleged incapacitated person lacked assets from which to pay legal fees, the court appointed attorney and guardian ad litem who had been appointed for him sought an order requiring Adult Protective Services (APS) to pay their fees. After the probate judge denied their fees applications, they appealed.


            Rule 4:86-4(e) states, “The remuneration of the attorney for the party seeking guardianship, appointed counsel, and of the guardian ad litem, if any, may be determined by the court to be paid from the estate of the alleged incapacitated person or in any other way the court shall direct.” The court appointed attorney and guardian ad litem argued that the Rule authorized the court to direct APS to pay their fees. However, the Appellate Division rejected their argument and explained that the legislation that created APS prevented such an award.


            The appellate court explained that APS is established under the Adult Protective Services Act, (the Act), N.J.S.A. § 52:27D-406 to -425 that does not permit a fee award against entities or individuals such as the Office on Aging. Under the Act courts are empowered to “order payments to be made by or on behalf of the vulnerable adult for protective services from his own estate.” However, the Act does not explicitly include attorneys' fees as a type of payment covered therein. The provision only allows for the ordering of payments from the vulnerable adult's “own estate.” As such, the court concluded that any power to make a legal fee award does include forcing another litigant or any other person or party to shoulder such fees.


            In reaching its conclusion, the Appellate Division expressed appreciation for the time and financial sacrifice made by the court appointed attorney, guardian ad litem, and their firms made. But, despite its praise for their “laudable efforts,” the court found it lacked authority to compel APS to pay them for their services.


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