2011-171, In re Guardianship of Mary Louise Eaton

Laboe Associates, PLLC

No. 2011-171 Cheshire County Probate Court

pursuant to RSA 464-A:43 (2004). We affirm.

Court (Hampe

Tropiano Law Office

not require the proposed ward to pay a good-faith petitioner’s attorney’s fees

, J.) erred in finding that the imposition of a guardianship does

motion for payment of legal fees, arguing that the Cheshire County Probate CONBOY, J. The petitioner, Daniel Eaton, appeals the denial of his

Attorneys, as amicus curiae. law), for the New Hampshire Chapter of the National Academy of Elder Law ___________________________

respondent. a.m. on the morning of their release. T Bradley & Faulkner, P.C., of Keene (Gary J. Kinyon on the brief), for the reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: petitioner.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

fees.” Merrimack School Dist. v. Nat’l School Bus Serv.

chapter shall be distributed in the following manner:

to the rule that each party is responsible for paying his or her own counsel authorization, an agreement between the parties, or an established exception “An award of attorney’s fees must be grounded upon statutory conservatorship pursuant to the procedures established in this the ward’s estate. This appeal followed. The costs incurred by the imposition of a guardianship or

justification existed to require payment of the petitioner’s attorney’s fees from RSA 464-A:43 provides in full: We review the trial court’s statutory interpretation de

statute considered as a whole. Id

not to the counsel for the petitioner. The court further found that no other phrase ‘fees for the counsel’ refers to the counsel for the proposed ward,” and construe a statute that is clear on its face. Id 464-A:43, I, the statute providing for payment of guardianship costs, “the award of attorney’s fees pursuant to RSA 464-A:43.. scheme and not in isolation. Id The trial court denied the petitioner’s motion, reasoning that under RSA. We do not consider legislative history to to include. Id. Further, we interpret a statute in the context of the overall fees he incurred during the proceedings. The respondent objected. legislature might have said or add language that the legislature did not see fit order the respondent, as guardian of Mrs. Eaton’s estate, to pay the attorney’s legislative intent from the statute as written and will not consider what the we ascribe the plain and ordinary meaning to the words used. Id Thereafter, the petitioner asked the court, pursuant to RSA 464-A:43, to. We interpret

found Mrs. Eaton incapacitated and appointed the respondent guardian over Bernard, 158 N.H. 43, 44 ( p. 2 2008). In matters of statutory interpretation, we are

(quotation and ellipsis omitted). Here, the petitioner asserts entitlement to an

respondent, would be appointed guardian. Shortly thereafter, the trial court

the petitioner and Dean agreed that their brother, Michael Eaton, the and filed his own petition. In June p. 2 2010, in a written settlement agreement, their mother, Mary Louise Eaton. The petitioner objected to Dean’s petition Eaton (Dean), the petitioner’s brother, filed a petition for guardianship over The pertinent facts are drawn from the record. In March 2010, Dean ward’s counsel. See

p. 3 the guardianship chapter, there are numerous references to the proposed

costs and attorney’s fees. The petitioner acknowledges that in other sections of “court costs and fees for the counsel” necessarily refers to a petitioner’s court cannot refer to a ward’s court costs. He contends, therefore, that the phrase

guardianship proceedings, the phrase “court costs,” used in paragraph I,

petitioner argues that because proposed wards do not incur court costs in specify that a petitioner’s attorney’s fees are not included. Further, the in the opening sentence, or the word “counsel” in paragraph I, or otherwise

The petitioner notes that the statute does not define or qualify the word “costs” necessarily flows from the plain meaning of the phrase, “fees for the counsel.” First, the petitioner argues that entitlement to his attorney’s fees

arguments in turn.

does not have counsel, see that the chapter requires the court to appoint counsel for a proposed ward who legislative history of the statute; and (3) public policy. We address his

purpose of the chapter is to protect the rights of proposed wards. He notes petitioner grounds his argument in: (1) a plain reading of the statute; (2) the counsel” does not include a petitioner’s attorney’s fees. He argues that the In contrast, the respondent contends that the phrase “fees for the

petitioner’s counsel.

ward’s counsel numerous times but never to a petitioner’s counsel. Finally, he relating to a petitioner. He points out that the chapter refers to a proposed

fees from the ward’s estate in the absence of bad faith on his part. The The petitioner argues that RSA 464-A:43, I, mandates the payment of his

RSA 464-A:43 (emphasis added). that the unqualified word “counsel,” in subsection 43, I, does not exclude the those specific references to the proposed ward’s counsel support his position (Supp. 2011), :13 (2004), :25 (Supp. 2011), :43. He argues, however, that shall be paid by the estate of the conservatee.

III. The costs incurred in the petition for a conservatorship, e.g., RSA 464-A:4-:6 (2004), :8 (2004), :11 (2004), :12

proceeding shall be borne by the state. II. If the proposed ward is indigent, the costs and fees of the

proceeding. petitioner acted in bad faith, he or she shall bear all costs of the person shall be borne by the proposed ward. In cases in which the bad faith, the court costs and fees for the counsel and resource I. Except in cases in which the petitioner filed the petition in very proceedings determining his need

p. 4 “The guarantee of counsel now makes the proposed ward an active party in the

filing of a petition for guardianship . . . . shall appoint counsel for the proposed ward immediately upon the the proposed ward does not have his or her own counsel, the court

person are not fully represented.” Id

person, or estate, is sought shall be absolute and unconditional. If with a disability.” In re Guardianship of Henderson 4

guardian ad litem when it appears that the rights of the allegedly incapacitated

temporary guardian or guardianship of the person and estate, or possible, carry out the client’s decisions,” “[e]ven when representing a client The right to legal counsel for any person for whom a liberties and property rights of a proposed ward.” Id “chapter is designed to provide procedural and substantive safeguards for civil I, provides in part: well-being of the proposed ward.” RSA 464-A:1 (2004). In particular, the to counsel and the potential appointment of a guardian ad litem. RSA 464-A:6, (quotation and brackets omitted). The stated purpose of RSA chapter 464-A is to “promote and protect the Prominent among the statutory safeguards are the proposed ward’s right what is in the best interest of the proposed ward.” Henderson, 150 N.H. at 350 petitioner’s counsel. status of a child . . . .”). guardian ad litem is charged with reaching “an independent conclusion on the phrase “fees for the counsel” to refer to a proposed ward’s counsel, not a.; see RSA 464-A:41, I (Supp. 2011). The

The statute further protects a proposed ward by permitting courts “to appoint a

The role of counsel in guardianship proceedings is to, “as far as reasonably guardian.” In re Snow Estate, 120 N.H. 590, 592 (1980) (quotation omitted).

substantially deprived of liberty. An incompetent person is reduced to the stated purpose and the statutory scheme indicate that the legislature intended We agree with the trial court’s reasoning and hold that the statute’s proceedings, see

N.H. 771, 775 (1978) (“A person who is legally declared incompetent is significance of the liberties and rights at stake, see, e.g., In re Gamble, 118

, e.g., In re DeLucca, 121 N.H. 71, 72 (1981), and the

person” can only mean a proposed ward’s counsel and the resource person. needed considering the potentially adversarial nature of guardianship

petitioner. Therefore, he argues, the phrase “fees for the counsel and resource argues that a “resource person” acts on behalf of the proposed ward, not a p. 5 5

costs of the proceeding.” would result in liability for the proposed ward’s attorney’s fees, as part of “all the petition in bad faith, we need not decide whether bad faith by a petitioner

Nonetheless, because there has been no assertion here that the petitioner filed sentence of RSA 464-A:43, I, and is not inconsistent with our holding. is liable for the proposed ward’s attorney’s fees -- gives meaning to the last her own attorney’s fees, but when the petitioner acts in bad faith, the petitioner

statute -- that absent bad faith by a petitioner, the proposed ward is liable for

faith, is dispositive. We note, however, that the respondent’s reading of the payment of a petitioner’s counsel fees, regardless of the petitioner’s good or bad today, that the statute does not contemplate a ward’s responsibility for incapacity of the proposed ward, see 464-A:4. Although the petitioner bears the burden of establishing the

his attorney’s fees even when the petitioner acts in good faith. Our holding

his or her own behalf” may file a petition for appointment of a guardian. RSA

bad faith. He asserts that to construe the statute otherwise denies a petitioner

which “[a]ny relative, public official, or interested person, or any individual in

award of attorney’s fees to a petitioner only when the petitioner has acted in A:43, I. The petitioner argues that the statute should be read to preclude an acted in bad faith, he or she shall bear all costs of the proceeding.” RSA 464- without the assistance of counsel. RSA 464-A:4 outlines the procedure by Moreover, guardianship procedures contemplate that petitions may be filed statute requires a petitioner to retain counsel to petition for guardianship. While a petitioner is free to choose to employ counsel, nothing in the

ward’s interests, would thus run counter to these legislative safeguards. attorney’s fees, even if the petitioner’s interests are adverse to the proposed

A:43, I, meaningless. That sentence provides, “In cases in which the petitioner counsel” to the proposed ward’s counsel renders the last sentence in RSA 464- The petitioner asserts that to read the statute as limiting “fees for the

painstaking proposed guardians can overcome.” DeLucca, 121 N.H. at 73. designed to erect procedural hurdles which only the most persevering and statute as requiring a proposed ward to pay a petitioner’s discretionary RSA 464-A:8, IV, “[t]he statute is not

determined by this court. See

which may be adverse to the proposed ward or another petitioner. To read the chooses to employ counsel, that counsel represents the petitioner’s interests, reference to counsel fees incurred by a petitioner. See id. If a petitioner

mandating that a proposed ward’s appointed counsel be compensated at a rate the proposed ward. Further, RSA 464-A:6, II protects proposed wards by interests and obviate the need for a petitioner to employ counsel on behalf of guardian ad litem assure protection of the proposed ward’s desires and best Representation by counsel and the potential for the appointment of a conservatorship proceeding is voluntarily initiated by the conservatee, see

p. 6 proceedings are too significant to sustain the petitioner’s argument. A between guardianships and conservatorships, the differences between the persuaded by the petitioner’s analogy. Although there are some similarities

ward is liable for a guardianship petitioner’s attorney’s fees. We are not

imposition of a conservatorship, RSA 464-A:43, I, must mean that a proposed

RSA 464-A:43, III, a conservatee’s estate bears the costs incurred by the

to a proposed ward’s counsel, not a petitioner’s counsel. See

guardianships and conservatorships are similar, and because, pursuant to In his final statutory argument, the petitioner asserts that because 6

holding that the legislature intended the phrase “fees for the counsel” to refer

proposed ward. where the legislature has explicitly provided for appointment of counsel for the Hampshire Chapter of the National Academy of Elder Law Attorneys, acting as fees incurred by an unsuccessful petitioner for guardianship, particularly As to the petitioner’s public policy argument, he is joined by the New

the stated purpose of the statute and the entire statutory scheme support our as to the intended meaning of the phrase. Nevertheless, as explained above, ambiguous; however, the legislative history of the statute provides no guidance

however, that “the support, care, and education of the ward” encompasses legal N.H. at 44.

objection, that a proposed ward’s incapacity justifies the deprivation of

N.H. 587, 590 (2005). The phrase “fees for the counsel,” standing alone, is consider legislative history to aid our analysis.” AIMCO Props. v. Dziewisz, 152 liable for petitioners’ attorney’s fees. “When a statute is ambiguous we supports his contention that the legislature intended proposed wards to be The petitioner also argues that the legislative history of RSA 464-A:43 counsel he hired “were solely for the benefit of [the ward].” We decline to infer, 118 N.H. at 775. he seek to maintain her existing arrangements,” and that the efforts of the legal he hired legal counsel “after repeated pleas from the (then) proposed ward that, e.g., DeLucca, 121 N.H. at 72; Gamble,

which the petitioner’s counsel may argue, despite the proposed ward’s contrast, a guardianship proceeding is a potentially adversarial proceeding in counsel appointed for the conservatee. See RSA 464-A:13-:14 (2004). In 464-A:13, and does not involve adversarial process or counsel other than

associated with a benefit to the proposed ward. The petitioner points out that

pay a petitioner’s attorney’s fees because the fees are a necessary cost for the support, care, and education of the ward,” requires that a ward’s estate provides that “[t]he guardian of the estate shall apply the money and property arguments. The petitioner argues that RSA 464-A:26, I (Supp. 2011), which Neither are we persuaded by the petitioner’s two additional statutory p. 7 7

DALIANIS, C.J.