Know the Legal Fees in a Guardianship: The A-to-Z Guide

What to Know About Guardianship Legal Fees

Guardianship is essentially a legal arrangement in which a person (the guardian) is appointed to manage the affairs of another individual (the ward) who is unable to handle their own affairs due to various reasons such as age, mental or physical incapacity. Often, legal proceedings are necessary to establish a guardianship, particularly if the individual has not previously specified a preferred guardian via a Durable Power of Attorney or other estate planning mechanism. This in turn means that legal representation is often necessary to help navigate and secure the guardianship appointment.
While the concept of guardianship may be fairly straightforward, the legal process to secure a guardianship can be rather complex and unwieldy, making the need for competent legal counsel crucial. Guardianship laws and legal requirements vary by state and locality, further intensifying the challenges that can arise during the process. Understanding the potential for legal fees in the creation and administration of a guardianship is important as these fees can significantly impact the estate of the ward .
Like most legal proceedings, establishing a guardianship is not free. In fact, legal fees can play a sizable role in the overall cost and benefit analysis of whether or not a guardianship is in the best interest of the proposed ward. Failing to prepare for the legal fees associated with your guardianship appointment can lead to a variety of unpleasant situations for both the prospective guardian and the proposed ward. For example, when the estate value of the proposed ward is relatively low, high legal fees can erode the estate and as a result, eliminate a guardianship as a viable option. Depending on the specific facts and circumstances of your situation, guardianship may not be the most cost-effective way in which to care for and protect your loved one.
This overview seeks to shed light on various factors that can influence the cost of establishing a guardianship. It will also explore a few possible options that could mitigate the cost of establishing a guardianship.

What Affects the Cost of Guardianship Legal Fees?

The main factors that influence the ultimate cost of obtaining a Guardianship are:
Jurisdiction
Complexity of the case
Attorney’s experience
Accordingly, because these factors are, in many ways unique to the case, legal fees resulting in Guardianship proceedings can vary significantly.
For example, while New Jersey requires judicial hearings in most contested cases, not all appointed judges hold the same amount of hearings to decide cases. In addition, some judges will appoint doctors to investigate and make recommendations to the Court following hearings. While others will rely exclusively on the recommendations of witnesses who are brought before the Court to testify. Thus, where a case requires numerous hearings overseen by one of the more active judges on the bench and the appointment of a physician, the costs that are incurred certainly are going to be significantly higher than if a judge takes a matter under advisement, issues a written opinion without requiring further testimony and receiving the recommendation of a physician.
For another example, based on its population, New Jersey has more guardianship matters than any of its neighboring states. This has caused the creation of a "specialized" guardianship bar that consists of attorneys across all areas of practice in New Jersey. As such, legal fees for guardianship matters can significantly vary under the same set of circumstances based on which attorney is retained. For example, while it is the firm’s policy to bill at the court approved rate of $350 per hour, other firms charge as much as $550 per hour. So while the hourly rate may differ, the level of service and discretion exercised by your attorney can often be the same. Furthermore, traditionally, the less experienced attorneys charge less than more experienced attorneys in New Jersey. Thus, if an attorney with little to three years of guardianship experience was to charge $250 per hour and an attorney with 20 years of guardianship experience was to charge $350 per hour, the return on investment is usually better with the more experienced attorney. Conversely, however, if you were to hire an attorney who does not typically handle guardianship matters, they do not understand the subtleties of practice in each County and as a general matter will incur more time (and less result) for a similar matter handled by a specialized guardianship attorney.
Lastly, secretary and paralegal hourly rates for the same administrative task also vary slightly. Civil and estate support staff hourly billing rates usually range from $95 to $150 with the levels often mirroring attorney fees. However, if you have the opportunity to bill section 1474 of the Adoption Law, (N.J.S. 3B:12-26.), which provides that "physicians, psychologists, attorneys and guardians are entitled to compensation commensurate with their ordinary charges for like services" and compare those rates to section 1477 of the Adoption Law, (N.J.S. 3B:12-29.), which provides that "The county surrogate shall collect a fee for the annual accounting of a guardian of an incompetent and of a trustee of a testamentary or inter vivos trust so that the total fee and any cost for the annual accounting by the guardian or trustee shall not exceed 5% of the total value of the property of the incompetent or of the trust subject to the annual accounting," you will easily see that your attorney will be submitting his or her bills at a much higher hourly rate. When estimating the costs to your guardian, if your attorney is not estimating its fees at $100 per hour above the private medical care and assisted living facility rates for guardian accounts, you should expect that your attorney will be estimating his or her fees at the same levels. This is to say that most guardianship attorneys will be included in the range of fees from $4,500.00 to $6,000.00 for the Estate Settlement and Guardian Reports if the guardian retained the services of an attorney who found themselves to be outside the bounds of the law. It is important to remember that while estimated costs can be provided to the guardian, the guardian cannot be held responsible for other costs that may result in connection with the Guardianship due to unforeseen circumstances.

Types of Legal Fees Associated With a Guardianship

In addition to the attorney’s fee, there are a host of other fees that are incurred in guardianship cases, many of which are not assessed in typical civil cases. These fees include, but are not limited to, the following:

Filing fee. In Georgia, the superior court clerk assesses a filing fee when you file a petition with the court. This fee covers the cost of processing the petition. Filing fees vary by county, but a filing fee for a typical guardianship petition in the Atlanta metropolitan area costs between $200 and $400.
Court reporter fees. A court reporter is a person who is licensed to operate a stenotype machine for the purpose of providing a transcript of a court proceeding. Some counties will schedule court reporters for hearings where the judge has indicated that he or she wants a record made for appeal purposes. However, in other counties, it is incumbent upon the petitioner to schedule a court reporter. In some counties, the court reporter is paid by the court or county for their time. In these cases, the petitioner may be required to pay a nominal court reporter fee of between $20 and $75 per hour. In other counties, the court reporter is paid directly by the parties. This means that the petitioner and other interested parties who request copies of the hearing transcript will bear the costs of paying the court reporter for the time it took to transcribe the record.
Bond premium expense. As noted above, before a guardian can be appointed, he or she must apply for a loyalty bond if the assets belonging to the proposed ward exceed $25,000. The bond premium is the cost of issuing the bond. For conservatorships (where the guardian is over the property), the bond premium is typically one percent of the value of the assets which the proposed conservator will handle during his or her first year of service. For guardianships (where the guardian is over the person), the bond premium is typically $30-$60.
Service fees. Many guardianship cases involve service requirements which are different from those in other civil cases. For instance, in most probate matters, a party is only required to serve the initial copy of the documents to the other parties via the Court’s e-file system. However, in some counties, guardianship cases go through probate court instead of superior court, and the probate court rules require all documents to be hand delivered to each interested party, regardless of whether the party lives in Georgia or out of state. Service of a copy may require multiple trips to the courthouse, and the delivery fee to other interested parties may be around $50 to $100 per person — plus the attorney will have to process an entry of service that has to be filed with the court. In addition to the above fees, which typically become due and payable within about two months after the service of the initial petition, you may incur additional fees in connection with any of the following actions:
Emergency hearings to address issues such as emergency guardianship, medical or nursing home matters, and powers of attorney;
Trials or hearings where witnesses must be subpoenaed;
Withdrawal of the petition, discontinuation of representation and dismissal of the case; and
Appeals to higher courts.

How to Estimate the Cost of Guardianship Legal Fees

Estimating your legal fees for guardianship can only be done by meeting with an attorney and discussing all of the relevant factors. Some attorneys will charge a flat fee, (usually the attorney will meet with you a few times however they bill you at the end of the representation) but others will bill by the hour and the cost will really depend on the complexity of your case.
Don’t just call around for a quote. You can present the information to the attorney you meet with from the list below but it may become overwhelming to an attorney to project so many scenarios that are similar but different. The attorney will not be able to fully evaluate the case until he or she meets with you. Be prepared to discuss the following items:

Has the guardian been named in advance?
Does the alleged incapacitated person have any capacity?
Can the alleged incapacitated person manage his or her finances?
Does the guardian live nearby?
Are there any siblings? What do they believe is in their parent’s best interests?
What personality type is the alleged incapacitated person? Is the alleged incapacitated person pleasant?
What objections if any, does the alleged incapacitated person have about becoming a ward of the state and/or having a guardian appointed?
Do you believe that the alleged incapacitated person is an alcoholic?
Do you believe that the alleged incapacitated person is a drug addict?
How much money does the alleged incapacitated person have in the bank?
How much is the house worth?
Has the alleged incapacitated person gone bankrupt?
Does the alleged incapacitated person have a Will that he or she signed when competent?
Has the alleged incapacitated person ever been arrested?
How much will it cost to get a psychologist to examine the alleged incapacitated person?
At what age is the alleged incapacitated person?
If you are related to the alleged incapacitated person, do you believe that he or she will cooperate with you?
If you are a stranger to the alleged incapacitated person, do you believe that he or she will cooperate with you?
Will there be any contests against the Will?
If the alleged incapacitated person lives in a Nursing Home or Assisted Living Facility, are there assets available from that place to help pay the costs for the guardianship?
When you are the petitioning party for friends or family, how intrusive has the alleged incapacitated person been to their lives?
Does the alleged incapacitated person exhibit anger towards others?
Does the alleged incapacitated person have any history of criminal activity?
Is the alleged incapacitated person a litigation risk?
Is the alleged incapacitated person receiving care currently?
Has the alleged incapacitated person started to exhibit signs of dementia?
Does the alleged incapacitated person flip from being angry to being happy?
Would you describe the alleged incapacitated person as being paranoid?
Does the alleged incapacitated person suffer from a major psychiatric illness?
Has the alleged incapacitated person been diagnosed previously with a mental illness or disorder?
Is there any estrangement or abuse that has happened recently or in the past between the alleged incapacitated person, their children and/or spouses?
Is there any evidence of undue influence exerted upon the alleged incapacitated person?

How to Cut and Manage Your Guardianship Legal Fees

Although the cost of guardianship is typically viewed in terms of a fixed fee for the legal services, there may also be other costs associated with the guardianship, including for an appraisal, bond, publication, or medical certificate. The guardianship fees usually include payments for any court appearances that may be involved, the filing of an annual report and/or accounting, the filing of a final discharge, the representation of the guardian in connection with matters concerning the ward or his/her finances, and the preparation of any pleadings. Although these ruling also constitute legal fees, they are sometimes not included in the calendar after the initial appointment or where there is some special issue.
Aside from the fixed fees, many attorneys charge an hourly rate for their services, often depending (within a limited range) on the experience of the attorney and nature of their practice . The average hourly rate for a middle- or senior-level attorney is between $250 and $725, with a range of $225 to $400 for junior associates.
But there are ways to manage and oftentimes reduce the legal fees associated with a guardianship. You can: You also want to limit the kinds of services for which you ask your attorney. Collecting on a hospital bill that relates to the initial ward care, for instance, may not be as beneficial to your estate as it would be for an elderly with diminished capacity that has significant pending medical bills.
In addition to the above practical tips, there are also free or low-cost options for legal help for guardianship. For example, the American Bar Association’s Pro Bono Call Center provides individuals across the country with legal assistance on civil matters over the phone.

Legal Aid and Guardianship

Legal aid organizations provide support and assistance to individuals who may be unable to afford the high cost of legal fees. These services may include legal representation, support groups, counseling, and information on your rights as a guardian or ward on the web. Legal aid may be offered by a county or municipal government, private nonprofit organization, law school legal clinic or even self-help and referral programs. Most legal assistances programs are nonprofit, and many charge low or no fees. While many people may be eligible for legal aid services, there are many who are turned away each year. The demand for legal aid often exceeds the amount of available funding. In such cases, those seeking assistance are offered referrals to other legal aid programs and private attorneys and are instructed on how to find the financial resources for the legal aid they require to afford their legal counsel. Individual attorneys may accept guardianship cases through pro bono legal service (at significantly reduced fees). Under certain circumstances, the court may appoint an attorney. Some attorneys are willing to take guardianship cases on a pro bono basis (free of charge), which may help reduce costs significantly.

Wrapping Up: Legal Fees and Guardianship

When facing a guardianship situation, be it as a proposed guardian or as a family member with concerns, it is vital to understand the range of costs you may incur. Having an overview of the fees associated with guardianship will better allow you to understand the role of the guardian, what is required and the attorney’s fees you will need to pay. If you are a proposed guardian, provide your attorney with all of the information requested regarding your finances if you are concerned about the potential for legal fees. The more you provide your attorney with upfront, the better they will be able to estimate the attorneys’ fees. If you do not provide accurate and detailed answers to their questions in the initial conversation, there will need to be additional time spent on the matter. If you have concerns regarding the actions of a family member , discuss your concerns with level-headed family members and try to reach a consensus on actions to be taken. It is the level of agreement and the ability to act quickly that will save you the most money. The more people are involved in the process, and the more times you go back and forth, the more expensive the process will be. If you reach a consensus, share this information with your attorney upfront so they know that they will not be spending a significant amount of time trying to agree on the best path forward or gathering information that could have been provided in an initial meeting. We know guardianship litigation can be expensive, but there are ways to avoid overspending on attorneys’ fees. Preparation and communication can help limit the time spent by the attorney, which ultimately saves you money.