Maria Delores Heller was in her seventies and suffering from late-stage ALS. She required round-the-clock medical care and was bedridden. Her late husband’s former legal associate, a New York attorney, filed an Order to Show Cause in New Jersey, seeking to be appointed as Ms. Heller’s guardian.

The guardianship application was supported by two doctors’ certifications, which opined that Ms. Heller was mentally incapacitated. One of the doctors further opined that Ms. Heller required a feeding tube to prevent her death. The guardianship petitioner also alleged that Ms. Heller had made a large bank withdrawal, which prompted the bank to contact Adult Protective Services.

The court appointed the petitioner as temporary guardian of Ms. Heller’s person and property. The following week, the temporary guardian filed an emergent application seeking to have Ms. Heller examined and seeking the insertion of a feeding tube, if necessary to save her life. This relief was ordered. However, after examining Ms. Heller, the doctors found the feeding tube was unnecessary, and released her from the hospital.

A few days later, the temporary guardian withdrew her pending guardianship application. Before the court, she represented that she no longer wished to serve as temporary guardian in any capacity. Two new doctors’ certifications were also presented to the court, opining that Ms. Heller possessed the capacity to make her own medical decisions. The court dismissed the action, concluding that Ms. Heller had capacity and should be permitted to die with dignity.

The temporary guardian was also discharged. At the time, she had served as temporary guardian for only 15 days; however, she submitted a bill for services for a seven-month period, billed an excessive amount of time, and billed for “attorney services” even though she was not licensed to practice in New Jersey and was acting as temporary guardian, not as an attorney. She sought compensation and expenses from Ms. Heller’s estate totaling more than $45,000.

The temporary guardian’s attorneys sought fees and expenses totaling more than $36,000.

The court denied compensation the temporary guardian, but awarded her attorneys a reduced fee of $25,924.27. The court also ordered Ms. Heller to pay the guardianship bond premium, as well as her own counsel fees and costs.

Ms. Heller appealed the fee award, arguing that (1) the attorneys for the petitioner were unsuccessful, because the guardianship action was dismissed; (2) the temporary guardian was motivated by personal gain; and (3) the fees were excessive. She argued that to be required to pay for legal proceedings against her that were quickly dismissed was “unconscionable.” The temporary guardian cross-appealed.

On appeal, the Appellate Division affirmed the lower court. It noted that R. 4:86-4(e) and R 4:42-9 grant authority to the court to fix compensation and fees for a guardian ad litem, his/her attorney, and court-appointed counsel. Those court rules provide discretion to the court to fix compensation, but do not mandate that compensation be granted. In exercising discretion, the court may consider the success of the party seeking fees. In awarding attorney fees, the court should consider the plaintiff’s motivation and potential interest in the guardianship estate, the financial circumstances of both parties, and the reasonableness of the attorney’s rate and time billed.

The appeals court agreed with the trial court’s attorney fee award, noting that the temporary guardian had brought the guardianship application in good faith, rather than for personal gain, and that resulting litigation costs were unavoidable. The trial court had properly considered the life-threatening situation presented when the guardianship action was initiated, and found that Ms. Heller’s estate was substantial.

The Appellate Division also concluded that the trial court had properly exercised its discretion in denying compensation to the temporary guardian, particularly given her “billing irregularities.”

A copy of In re Heller can be found here – In the Matter of Maria Delores Heller