In Guardianship Cases, Payment of Counsel Fees is at the Discretion of the Court

HNWGuardianship Law

  • guardianship lawNJ court rules govern payment of counsel fees in guardianship actions.
  • If adult protective services fails to perform their statutory responsibilities, they can be assessed the counsel fees of a court-appointed attorney.

Guardianship actions for incapacitated persons are governed by New Jersey Court Rule 4:86 and N.J.S.A. 3B:12-24 to -28.  Rule 4:86-4(e) states that “[t]he compensation of the attorney for the party seeking guardianship, appointed counsel, and of the guardian ad litem, if any, may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct.”  Rule 4:86-4 makes clear that the attorney for a party seeking appointment of a guardian for an alleged incompetent is entitled to an attorney’s fee award.

Rule 4:86-4(e) is an exception to the American Rule which does not allow shifting of responsibility for payment of attorney’s fees.

In a guardianship action, the court may allow a fee in accordance with Rule 4:86-4(e) to the attorney for the party seeking guardianship, counsel appointed to represent the alleged incapacitated person, and the guardian ad litem.

In a recent case, the trial court ordered the Sussex County Adult Protective Services Agency to pay fees for a court-appointed attorney under Rule 4:86-4(e).

In this case, the judge found the court-appointed attorney’s fee reasonable because APS protracted the litigation by not supplying the financial analysis and investigation required by Rule 4:86-2(b).  Had APS done so, it would have been readily apparent from the onset of the proceedings that the alleged incapacitated person did not have the funds or ability to pay for professional services.  Instead, the temporary guardian and court-appointed counsel had to perform these tasks, which should have been done at APS’ expense.

Therefore, the Appellate Court found no abuse of discretion in the court awarding respondent counsel fees.

To discuss your NJ guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Guardianship Attorney

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