Based on reports from the local police department, Sussex County Division of Social Services, Adult Protective Services (“APS”) opened an investigation into the well-being of 85-year old Sally Dinoia, who was living with her son. Her son actively opposed the investigation, and his efforts included filing a federal complaint against APS and others involved in the investigation.

APS filed a guardianship complaint, seeking to have Sally declared incapacitated. The Surrogate appointed Kevin Kelly, Esq. as counsel for Sally. At the conclusion of the case, in which Sally was declared incapacitated and her daughter appointed as her guardian, Mr. Kelly filed an application seeking to have APS pay his counsel fees. The chancery court granted the fee application. The court noted that the litigation had been highly contentious, with 12 applications filed by Sally’s son at the trial and appellate levels, and with many of Mr. Kelly’s services requiring performance on an emergent basis. The trial court concluded that, without Mr. Kelly’s involvement, Sally “would have suffered even more than she did.” It found that APS had failed to conduct a financial investigation of Sally’s assets and debts, as required when filing a guardianship action under R. 4:86-2(b). It also found that Sally’s income and assets were minimal. The judge concluded that there were compelling reasons to order that APS pay Mr. Kelly’s fees.

On appeal, APS argued that the judge’s decision undermined the public policy goals of the APS Act. The appellate court disagreed, and affirmed the fee order.

The Appellate Division noted that, under R. 4:86-4(e) of the court rules, the compensation of a court-appointed attorney may be fixed by the court to be paid “in such … manner as the court shall direct.”  Here, Mr. Kelly’s efforts had been exceptional. Moreover, APS had protracted the litigation by failing to supply the financial analysis and investigation that is required of a party filing for guardianship; had it done so, it would have been apparent at the outset that Sally lacked the funds to pay for the legal services. Because APS failed to do so, Mr. Kelly had to perform those tasks.

A copy of In re Dinoia can be found here – In the Matter of the Guardianship of Sally Dinoia, Alleged to be an Incapacitated Person

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