Plaintiff filed an action seeking to declare his mother, D.W., an incapacitated person, and seeking to be appointed as her guardian. D.W. contested the guardianship action, claiming that she was not incapacitated and did not need a guardian.

The court had appointed Matthew Van Natten, Esq. as D.W.’s counsel. Later, D.W. privately retained Alan John Clark, Esq. as her attorney, and the court appointed Van Natten to be D.W.’s guardian ad litem. Approximately a year later, Clark withdrew as counsel, and a new attorney was substituted as counsel for D.W.

The guardianship action was litigated more than nineteen months, during which discovery was conducted, motions were filed and mediation was attempted. On the day the case was scheduled for trial, the parties settled the case. The consent order appointed a “financial monitor” to oversee D.W.’s finances, but D.W. retained her decision-making authority over her finances. The consent order provided that the trial court would determine all counsel fee applications.

Counsel fee applications were filed by plaintiff, the guardian ad litem, and Clark.  D.W. opposed all of the applications.

The trial court awarded counsel fees to be paid from D.W.’s estate to the plaintiff and to the guardian ad litem, but denied Clark’s fee application. The court reasoned that fees to the plaintiff and guardian ad litem were warranted under the court rules, even though there was no determination of incapacity. As to Clark, the court held that the court rules did not provide for a fee award to be made to an attorney who is directly retained by an alleged incapacitated person. Instead, the court reasoned that Clark’s recourse was to seek payment of his fees directly from D.W.

On appeal, the Superior Court, Appellate Division affirmed the fee order, finding that the trial court had the authority to make a counsel fee determination, and that the consent order had expressly stated that the trial court would make a determination as to counsel fees.

A copy of In the Matter of D.W. can be found here – In the Matter of D.W., An Alleged Incapacitated Person

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