THE STATE OF NEW HAMPSHIRE SUPREME COURT

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , In re Guardianship of Alden F., the court on March 5, 2014, issued the following order: Dawn E. Whiting (guardian), the former guardian over the estate of Alden F. (ward), appeals the trial court s order on her request for approval of guardianship fees and attorney s fees, arguing that the court erred in its determination of reasonable fees for her services and the services of her attorneys. She also argues that the court erred as a matter of law in determining that attorney s fees incurred to initiate an action for breach of fiduciary duties pursuant to RSA 506:7 (2010) are not payable from the ward s estate. We vacate and remand. Our standard for reviewing a decision of the probate division is set forth by statute. See RSA 567-A:4 (2007). The findings of fact of the judge of probate are final unless they are so plainly erroneous that such findings could not be reasonably made. Id. Consequently, we will not disturb the probate division s order unless it is unsupported by the evidence or plainly erroneous as a matter of law. See In re Guardianship of Domey, 157 N.H. 775, 778 (2008). Pursuant to RSA 464-A:23 (2004): Every guardian shall be allowed a reasonable compensation for all proper expenses and services in the discharge of the guardianship. Administrative expenses approved by the court, including but not limited to guardianship fees, legal fees, and appraisal costs shall be paid out of the estate of the ward as a priority over other debts and obligations of the ward to the extent that funds are available and the needs of the ward are being met. The balance of the account due to the guardian shall be a lien upon all of the estate of the ward, real and personal, not disposed of. After a person ceases to be a guardian, he or she may maintain an action for the recovery of said money owed for expenses and services. In determining reasonable compensation for fiduciaries, including guardians, the court should consider the size of the estate, the complexity of the estate, and the fiduciary s responsibilities in light of the services rendered, with the amount dependent upon the labor, risk, responsibility and trouble of each particular case. In re Estate of Rolfe, 136 N.H. 294, 298 (1992) (quotation omitted); see also Prob. Div. R. 88 ( Factors used to determine the

2 reasonableness of a fee may include the time and labor required, the size of the estate, the requisite skill, the customary fee, a fee agreement, the results obtained, time limitations, and the length of the professional relationship. ). In determining the reasonableness of attorney s fees, the court should consider the following non-exclusive list of factors: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly. (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar legal services. (4) The amount involved and the results obtained. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent. In re Estate of Rolfe, 136 N.H. at 299 (quotation omitted). In this case, the guardian was appointed guardian of the ward s estate on February 1, The primary duty of the guardian of the estate is to protect the estate s assets in order to apply them for the support and care of the ward. In re Guardianship of Domey, 157 N.H. at 779; see also RSA 464-A:1 (2004). RSA 464-A:26, I (2004) provides, in pertinent part: The guardian of the estate shall take possession of all of the ward s real and personal property, and of all rents, income, and benefits therefrom, whether accruing before or after his or her appointment, and of the proceeds arising from the sale, mortgage, lease or exchange thereof.... It is the duty of the guardian of the estate to protect and preserve it, to retain, sell and invest it as hereinafter provided, to prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of the estate s assets, [and] to account for it faithfully.... In the course of the proceedings, the guardian filed an inventory, a first accounting, and a second and final accounting. The inventory lists the total value of the ward s personal estate as $49,441.56, the total value of the real estate as $597,700, and the total value of the entire estate as $647,

3 The accounting schedules include inventories of the ward s real estate, all of which is located in Massachusetts, and payments made by the guardian for the maintenance of the real estate, including utilities, insurance, and real estate taxes. The record shows that this was an unusually contentious guardianship case. In pleadings filed with the court, the guardian described her efforts to marshal the ward s assets and the difficulties she was experiencing as a result of the conduct of the ward s adult children. In its order, the court acknowledged the difficult circumstances facing the guardian, noting that: [T]his guardianship required more time and effort than the usual guardianship case. The guardian s and her attorney s work were complicated by and made more costly because of intense animosity with the [ward s] family and directed against the guardian. Specifically, the guardian was required to respond to complaints filed against her with the NH Bureau of Elderly Services and with the Attorney Discipline Office. Both complaints were unfounded. Furthermore, the court record suggests that some members of [the ward s] family refused or neglected to provide the guardian with information necessary for her to complete her duties, such as tax and utility bills, which increased the guardian s workload. It also appears that the parties litigated issues regarding transfer of guardianship property. The court also recognize[d] that this matter has been highly contentious and that there has been minimal cooperation and intense animosity between and among the parties. Specifically, the court noted that the case ha[d] been unusually litigious with more than 260 pleadings filed, and at least 21 hearing dates scheduled including those continued at the request of counsel as of September 11, In her second and final accounting, the guardian sought $91, in guardian s fees and $191, in fees for her attorneys. In its order, the trial court found that the size of the estate, the issues presented and the guardian s duties as set forth in RSA 464-A:1 and 464-A:26 do not justify the time spent on this estate by the guardian or her attorneys, and awarded the guardian $22, in fees and costs and $20,000 for her attorneys. In making its determination, the court considered the factors enumerated in In re Estate of Rolfe and Probate Division Rule 88. The court determined that the amount involved and the results obtained were the most significant factor[s] for assessing the reasonableness of the fees requested. See In re Estate of Rolfe, 136 N.H. at 298; Prob. Div. R. 88. The court concluded that [t]he assets and income involved in this estate are not substantial and to suggest that it is reasonable and proper to seek fees in the amount requested is patently unreasonable. 3

4 The record shows that the court based its conclusion as to the reasonableness of the fees incurred upon a finding that the value of the ward s entire estate is $49, In reviewing the record, however, we note that the inventory lists the value of the ward s personal estate as $49, The value of the ward s entire estate is listed as $647, The difference, $597,700, is the value listed for the ward s real estate. In its order, the trial court acknowledged the substantial value of the ward s real estate but declined to consider it for purposes of the fee award because the real estate is located in Massachusetts and, thus, is not within the jurisdiction of the New Hampshire court. We conclude that the trial court erred when it failed to factor the value of the ward s real estate into its analysis simply because the property is located in Massachusetts, particularly in light of its finding that the value of the ward s estate was one of the most significant factor[s] in its assessment of the reasonableness of the fees incurred. As previously noted, RSA 464-A:26, I, requires the guardian of the estate to take possession of all of the ward s real and personal property and to prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of the estate s assets. See RSA 464-A:26, I (emphasis added). The record shows that the guardian listed the Massachusetts real estate in the schedules filed with her accountings and assumed responsibility for payment of utilities, insurance, and real estate taxes. At the hearing on her fee request, the guardian testified that she also initiated an action in Massachusetts to be appointed as a conservator over the ward s real estate. The record shows that a number of the contentious issues in the case related to the Massachusetts real estate. Accordingly, we vacate the trial court s fee award and remand for the court to consider the reasonableness of the fees and costs incurred by the guardian and her attorneys in light of the total value of the ward s estate, including the real estate. Upon remand, the guardian may submit detailed billing statements from her attorneys, subject to whatever safeguards may be appropriate for the protection of the attorney-client privilege. Finally, we address the guardian s argument that the trial court erred in determining that the $11, in attorney s fees incurred to initiate an action for breach of fiduciary duties pursuant to RSA 506:7 is not payable from the ward s estate. The guardian argues that the RSA 506:7 action was necessary to protect and preserve the estate. See RSA 464-A:26, I ( It is the duty of the guardian of the estate... to prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of the estate s assets. ). The ward argues that the RSA 506:7 action was unnecessary and duplicative of other pleadings in which the guardian sought similar relief. The trial court did not reach the issue of whether the fees were reasonably incurred, having ruled that as a matter of law they were not payable from the ward s estate. However, we disagree: we do not construe RSA 506:7, V to preclude recovery of attorney s 4

5 fees reasonably incurred by the guardian for the protection of the estate s assets. See RSA 464-A:23, :26, I. Accordingly, upon remand, the trial court shall determine the reasonableness of the fees incurred to initiate the RSA 506:7 action. In light of our decision, we need not address the guardian s remaining challenges to the amount of the fee award. HICKS, CONBOY and BASSETT, JJ., concurred. Vacated and remanded. Eileen Fox, Clerk 5