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Awarded guardianship fees overturned due to potential misconduct

February 11, 2015

Because a trial court did not look at whether fees requested by a man’s former guardians were necessary, the Indiana Court of Appeals reversed the order they receive more than $15,000 from his estate.

N.R., who is in his 80s, had his daughter, Nelva Berry, appointed at his attorney-in-fact in January 2012. Several months later, his niece, Eva Willis, and his nephew, Charles Reagins, filed an emergency petition to be appointed temporary co-guardians over N.R. and his estate. They claimed he couldn’t care for his financial affairs because of dementia with slight memory loss. The petition also neglected to mention Berry’s role as attorney-in-fact.

The trial court granted the petition without providing notice to N.R. or Berry. A month later, Berry and N.R.’s stepdaughter, Monique Wilson, objected. At a hearing held by the court, Berry and Wilson were appointed permanent co-guardians over N.R., and Willis and Reagins were removed. Peoples Bank was appointed temporary guardian.

Willis and Reagins asked for attorney fees of more than $15,000 and $177.55 in costs from N.R.’s estate for the time they spent as temporary guardians. The trial court granted their petition and also awarded the bank more than $7,000 in fees for its time as guardian.

Before the trial court and again in In the Matter of the Guardianship of N.R., N.R. v. Eva Willis and Charles Reagins, Peoples Bank, SB, 45A05-1303-GU-150, N.R. maintained that he should have been allowed to present evidence showing that Willis’ and Reagins’ misconduct before and during the guardianship proceedings made the order appointing them as temporary guardians improper, so the award of fees and costs was unreasonable.

According to the opinion, before Willis and Reagins applied for temporary guardianship, the two had changed the locks on N.R.’s home and had his mail forwarded to a P.O. Box to which he did not have access. This caused unpaid bills, damaged N.R.’s credit and may have served as the pair’s basis for asking the court for guardianship.

The order appointing the two should have not been entered without notice and hearing, Judge Margret Robb wrote. There is a legitimate concern that the trial court did not scrutinize whether the temporary guardianship was needed, whether the pair were the appropriate people to be appointed, whether they acted in good faith and reasonably in incurring fees to petition for guardianship, and whether their misconduct contributed in whole or part to the deficiencies they alleged necessitated the guardianship proceedings.

The judges reversed the awards to Willis, Reagins and the bank and ordered the trial court to hear N.R.’s evidence and reconsider the fee petitions.
 

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