In 2023, the New Jersey Superior, Court Appellate Division refused to order fee-shifting to Office of Adult Protective Services (“APS”) in a guardianship action. A prior blog post about the Appellate Division decision can be found here.
The Supreme Court agreed to hear the case and, on December 11, 2024, issued its opinion affirming the Appellate Division’s decision.
The case involved a guardianship action filed by APS seeking the appointment of a guardian for Hank (a fictitious name), an alleged incapacitated adult with no significant assets or income.
As required by the New Jersey court rules, the court appointed an attorney for Hank, as well as a temporary guardian for Hank’s interim needs. Ultimately, the court ruled that Hank required a limited guardian for legal and medical decision-making, and appointed the Bureau of Guardianship Services as the limited guardian. Because of Hank’s limited finances, the court-appointed attorney and temporary guardian sought to have their legal fees paid by APS.
Although the court-appointed attorney and temporary guardian were praised for their substantial efforts in the case, their application seeking legal fees from APS was denied, because the judge concluded that the New Jersey statutes and court rules do not permit such a fee award. The decision was affirmed by the Appellate Division.
The Supreme Court agreed, and affirmed the appeals court.
The Supreme Court noted that the statues governing guardianship actions permit fee awards against the estates of alleged incapacitated persons, but not against APS. Similarly, the APS statute provides for fee awards against the alleged incapacitated person’s estate, but is silent as to fee awards against any other entity or person. The Court also found that the court rules do not authorize fee awards against adult protective services providers “under any circumstances.”
Instead, attorneys appointed by the court traditionally represent indigent clients pro bono.
The Supreme Court pointed out that, on March 1, 2021, it had entered an order directing that the Madden exemption available for New Jersey attorneys (which exempts them from the mandatory court-appointed representation requirements of Madden v. Township of Delran) applies to attorneys appointed to serve as attorney or guardian for an alleged incapacitated person. Therefore, by certifying that they have performed 25 hours or more of voluntary (not court-appointed) pro bono services, lawyers may be exempted from the Madden requirements for the following year.
Unfortunately for the attorneys involved in A.D., they were appointed before the Supreme Court’s March 1, 2021 Order was entered.
A copy of the Supreme Court decision of In re A.D. can be found here.