Relevant Statutes Bar Attempt to Compel Office of Adult Protective Services to Pay Fees of Court-Appointed Attorney and Temporary Guardian in Guardianship Case

In the Matter of A.D., ___ N.J. Super. ___ (App. Div. 2023). In this appeal, an attorney and a temporary guardian sought fees for their services. The Law Division had denied their application. Today, the Appellate Division affirmed that ruling in an opinion by Judge Gummer.

The Office of Adult Protective Services (“APS”) of the Sussex County Division of Social Services began this action seeking guardianship of A.D., whom APS alleged was incapacitated and vulnerable. Among other things, in paragraphs 43 and 44 of its verified complaint ,APS sought the appointment of an attorney and a temporary guardian for A.D., but expressly stated that the attorney and temporary guardian should be paid from A.D.’s estate and that APS would “bear no responsibility for [their] costs and fees.”

The Sussex County surrogate entered an “order” appointing appellants, the attorney and temporary guardian. In a footnote, Judge Gummer found it “unclear” why the surrogate entered the order rather than a judge. She noted that Rule 4:86-3A gives the surrogate a role in reviewing a guardianship complaint but that Rule 4:86-4(a) reserves to “the court” the power to “enter an order fixing a date for hearing.” The order stated that “[t]he attorney appointed to represent the alleged incapacitated person is to be paid. Pursuant to [Rule] 4:86-4(d) the court may direct that counsel be paid from the assets of the alleged incapacitated person or in such manner as the court shall direct.” In a further oddity, when APS received the filed copy of its verified complaint, the language in paragraphs 43 and 44 that disclaimed any responsibility by APS for appellants’ fees and costs had been stricken, with a handwritten notation that that was done “per” the initials of the assigned judge. APS objected to that but received no response.

The attorney and temporary guardian performed services that Judge Gummer recounted in detail, and which she characterized as “laudable” and worthy of “praise and expressions of gratitude.” They applied for an award of fees and costs to be paid by APS. APS successfully opposed that and appellants appealed. Today, the Appellate Division affirmed.

Judge Gummer noted that fee issues are reviewed with deference to trial courts, but interpretations of Court Rules are subject to de novo review. She concluded that there was “no misapplication of the law or abuse of discretion in the [trial level ]judge’s denial of the fee applications.”

Though Rule 4:86-4(e) authorizes payment of fees “out of the estate of the alleged incapacitated person or in such other manner as the court shall direct,” with appellants relying on “such other manner as the court may direct,” Judge Gummer held that the trial level court had no power to direct APS to pay the fees. “The problem with [appellants’] contention is that in APS’s enabling statute, the Adult Protective Services Act, (the Act), N.J.S.A. 52:27D-406 to -425, the Legislature did not give courts the authority to order APS to pay fees under these circumstances.” Unlike the Court Rule, N.J.S.A. 52:27D-418 “provides for payment only from the vulnerable person’s ‘own estate.’ Similarly, N.J.S.A. 3B:12-24.1(c)(9) provides for payment of a temporary guardian’s fees and costs only from ‘the estate of the alleged incapacitated person.'”

Judge Gummer relied on In re Farnkopf, 363 N.J. Super. 382 (App. Div. 2003), which had denied fees on comparable facts, in this regard. Appellants urged that In re Guardianship of DiNoia, 464 N.J. Super. 562 (App. Div. 2019), which awarded fees, was the proper precedent to follow. But Judge Gummer observed that the facts of DiNoia were very different. “The trial judge [there] found APS had failed to carry out its statutory duties, specifically that APS had failed to conduct the financial investigation and analysis it was required to perform under Rule 4:86-2(b), had thereby protracted the litigation, and had ignored requests to produce records. DiNoia, 464 N.J. Super. at 566, 569. Given that misconduct, we found no abuse of discretion in the trial
court’s decision to require APS to pay the attorneys’ fees.” There was no such misconduct by APS here.

Judge Gummer then turned to appellants’ argument that the order entered by the surrogate required a fee award. The language that “[t]he attorney appointed to represent the alleged incapacitated person is to be paid. Pursuant to [Rule] 4:86-4(d) the court may direct that counsel be paid from the assets of the alleged incapacitated person or in such manner as the court shall direct” did not bind the trial level court to award fees. Moreover, the surrogate’s purported order did not bind the judge in any event.

Finally, “any reliance on the marks striking language [of paragraphs 43 and 44 in which APS disclaimed responsibility for fees} on the returned copy of the verified complaint was misplaced. Neither the court nor the surrogate had authority to sua sponte strike language from the complaint with no pending motion, no notice to the parties, and no opportunity for APS to hear and respond to the concerns that led the court or surrogate to strike the language.” Accordingly, the panel affirmed the denial of fees.