IN RE ESTATE OF BAYERS

• Decision Date: 01 July 1999
• Docket Number: No. 98-726.,98-726.
• Citation: 1999 MT 154,983 P.2d 339
• Parties: In The Matter of the ESTATE OF Shirley L. BAYERS, A Protected Person.
• Court: Montana Supreme Court

983 P.2d 339

1999 MT 154

In The Matter of the ESTATE OF Shirley L. BAYERS, A Protected Person.

No. 98-726.

Supreme Court of Montana.

Submitted on Briefs April 29, 1999.

Decided July 1, 1999.

Rehearing Denied August 4, 1999.

Philip P. McGimpsey, Philip P. McGimpsey, Inc., Billings, Montana, For Appellant

John T. Jones and Nancy Bennett, Moulton, Bellingham, Longo & Mather, P.C., Billings, Montana, William J. Mattix, Crowley Law Firm, Billings, Montana, Damon L. Gannett, Gannett Law Firm, Billings, Montana, For Respondents

Chief Justice J.A. TURNAGE delivered the Opinion of the Court.

¶ 1 This is an appeal from the order of the Thirteenth Judicial District Court, Yellowstone County, granting the conservator's motion for payment of attorney's fees incurred by the permanent guardian. We affirm.

¶ 2 The sole issue presented in this case is whether the District Court erred in allowing the conservator of Shirley Bayers' estate to pay the attorney's fees incurred by Shirley's permanent legal guardian in seeking the appointment of a guardian for Shirley.

BACKGROUND

¶ 3 In April 1995, Shirley executed a durable power of attorney appointing her daughter, Diane Vickman, as her attorney-in-fact. Shirley's granddaughter, Tracy Crabtree, was appointed as Shirley's alternate attorney-in-fact in the event that Diane became unable to perform her duties under the power of attorney. In June 1995, Shirley was diagnosed with Alzheimer's Disease. In July 1995, Shirley inherited a sizeable estate from her half-sister, Melba Meyers. Diane died in September 1995, and Tracy became Shirley's attorney-in-fact under the terms of the durable power of attorney. ¶ 4 In October 1995, Tracy retained the Crowley law firm to initiate proceedings for the appointment of a legal guardian and conservator for Shirley. In addition to the appointment of a legal guardian and conservator, the petition also sought appointment of Dr. Patricia Coon, M.D., as Shirley's physician, attorney Damon L. Gannett as Shirley's guardian ad litem, and social worker Wayne L. Smithberg as Shirley's visitor pursuant to the provisions of § 72-5-315(3), MCA. The petition initially named Tracy as the candidate for guardian and conservator but was later amended to nominate Shirley's only living daughter, Judy Trenka, as the guardian candidate, and Judy and First Interstate Bank as the co-conservators of Shirley's estate.

¶ 5 The District Court ordered the appointment of a physician, a guardian ad litem, and a visitor for Shirley, then scheduled a hearing on the appointment of a guardian and conservator. Prior to the hearing, the District Court appointed Judy as Shirley's temporary full guardian due to Shirley's Alzheimer's diagnosis and the need for her immediate care and protection.

¶ 6 On November 17, 1997, Shirley married James Bennett. On November 21, 1997, Shirley and James retained attorney Philip McGimpsey to act as Shirley's personal counsel and represent her in the guardianship proceedings.

¶ 7 After the hearing on the appointment of a guardian, in an order dated December 14, 1995, the District Court appointed the Department of Public Health and Human Services (DPHHS) as Shirley's interim guardian and First Interstate Bank as conservator of Shirley's estate. Under the District Court's order, the interim guardianship was originally dated to expire on March 14, 1996; however, this date was later extended through March 1997.

¶ 8 In March 1997, just before the interim guardianship expired, Judy renewed the petition seeking her appointment as Shirley's sole permanent guardian. Shirley's husband, James, filed a competing petition seeking his appointment as Shirley's permanent guardian. In April 1997, the District Court held a hearing on the competing petitions. Appearing at the hearing were the Crowley law firm on behalf of Judy as the guardian candidate; attorney Roy Johnson on behalf of James as the guardian candidate; and attorney John Jones on behalf of the conservator, First Interstate Bank. Also appearing at the hearing were Damon Gannett as Shirley's court-appointed guardian ad litem and Philip McGimpsey as Shirley's personally retained attorney.

¶ 9 In June 1997, the District Court issued an order appointing Judy as Shirley's full permanent guardian. In March 1998, the Crowley firm submitted a request to the conservator of Shirley's estate for payment of approximately $30,000 in legal fees incurred by Judy in seeking appointment as guardian. McGimpsey objected to the Crowley firm's request for payment of fees out of the conservatorship estate, and First Interstate Bank filed a motion before the District Court seeking authorization to pay the fees. The District Court held a hearing on the conservator's motion on June 23, 1998, and granted the motion to allow payment. McGimpsey filed this appeal on Shirley's behalf appealing the payment of the Crowley firm's fees out of funds in the conservatorship estate.

DISCUSSION

¶ 10 Did the District Court err in allowing the conservator of Shirley Bayers' estate to pay the attorney's fees incurred by Shirley's permanent legal guardian in seeking the appointment of a guardian for Shirley?

¶ 11 We review a district court's findings of fact to determine whether those findings are clearly erroneous. Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. We review a district court's conclusions of law to determine whether those conclusions are correct. DeSaye, 250 Mont. at 323, 820 P.2d at 1287.

¶ 12 The appointment of a guardian for an incapacitated person is a matter largely within the discretion of the appointing court, and this Court will not interfere with the actions of that court absent an abuse of discretion. In the Matter of the Guardianship of Nelson (1983), 204 Mont. 90, 94, 663 P.2d 316, 318. Moreover, the appointing court's discretionary power encompasses approval of attorney's fees incurred by a guardian within the scope of the guardianship. In re Allard Guardianship (1914), 49 Mont. 219, 229, 141 P. 661, 665.

¶ 13 Appellant advances several arguments as to why the legal fees requested by the Crowley law firm should not be paid by the conservator. In particular, appellant argues that the award of a guardian's attorney's fees is contrary to the general rule that attorney's fees are not awarded to the prevailing party in an adversarial proceeding; that it was Tracy and Judy, not Shirley, who contracted for the legal services of the Crowley law firm, and that therefore Tracy and Judy, not the conservatorship estate, should be primarily responsible for the fees for those services; that neither of the petitions for guardianship prepared and filed by the Crowley firm contained a request for attorney's fees; that the power of attorney authorizing Tracy to act as Shirley's attorney-in-fact was not subject to due process; and finally, that the attorney's fees awarded in this case were not reasonable. We address each of these arguments in turn.

¶ 14 Appellant cites several cases propounding the general rule that attorney's fees are not awarded to the prevailing party in an adversarial proceeding, absent special contractual or statutory provisions to the contrary. Appellant's reliance upon these cases, however, is misplaced, because a petition to appoint a guardian is not an adversarial proceeding, but rather a proceeding to promote the best interests of the person for whom guardianship is sought. See § 72-5-306, MCA ("Guardianship for an incapacitated person may be used only as is necessary to promote and protect the well-being of the person").

¶ 15 Courts from sister jurisdictions have reached similar conclusions based upon comparable statutes. See Gay v. McCaughan (Fla.1958), 105 So.2d 771, 774 ("the court having jurisdiction of a guardianship matter is said to be the superior guardian, while the guardian himself is deemed to be an officer of the court"); In re McLarty's Estate (Fla. App.1982), 421 So.2d 811, 812 (holding that an action to remove the personal representative of an estate is not an adversary proceeding to which the Rules of Civil Procedure are generally applicable); In re Guardianship of Reynolds (1957), 106 Ohio App. 488, 155 N.E.2d 686, 687-88 ("Proceedings for the appointment of guardians, [sic] are not inter partes, or adversary in character. They are properly proceedings in rem and are ordinarily instituted by application made on behalf of the ward, and for his benefit."); McKinley v. Salter, 136 S.W.2d 615, 624 (Tex.Civ.App.1939) ("Proceedings for the appointment of a guardian are not adversary in their nature. A jurisdiction when exercised is exercised to preserve and protect the estate of the ward.").

¶ 16 We likewise reject appellant's argument that payment of the guardian's attorney's fees from Shirley's estate was erroneous for the reason that Shirley never personally contracted with the Crowley firm for the filing of a petition for guardianship. As an initial matter, we note that at the time Tracy contracted for the legal services of the Crowley firm, she was acting as Shirley's attorney-in-fact under a durable power of attorney, and that § 72-5-501(1), MCA, provides that "[a]ll acts done by the attorney-in-fact pursuant to a durable power of attorney during any period of incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were alive, competent, and not disabled."

¶ 17 However, even if Tracy had not been possessed of the powers of an attorney-in-fact when she retained the services of the Crowley firm, § 72-5-428(1), MCA, expressly authorizes the conservator of the estate of an incapacitated person to distribute funds necessary for the support, education, care, or benefit of the protected person. The cost of initiating a good faith petition for the appointment of a guardian where such appointment is determined to be in the best interests of...