Members Helping Members: My Bar Access Q&A

Issue March/April 2016

Q: Does anyone have experience with appointments out of the probate court to represent IP's in guardianship cases which are designated as private pay? And, if so, would you mind sharing your process for payment e.g. do you get a retainer or some sort of acknowledgement regarding billing rate, etc., before filing an appearance? It is tricky where the person paying on behalf of your client is likely the petitioner i.e. the attorney in fact pursuant to a power of attorney or the conservator.

Thank you much,

Melanie S. Lewis

A: I have been in this situation several times. You have been appointed by the court and the court has ordered that you be paid by the respondent's estate. You do not need to file an appearance as you have been appointed. Some attorneys do file an appearance just for clarity. If you want to object, you need to file a formal objection.

As to getting paid, you just bill whoever controls the funds. If there is an attorney in fact or a conservator, he or she pays. I would discuss your hourly with him or her, just to avoid confusion. There is no reason why you could not ask for a retainer. You may want to do so if you are concerned that the situation may change. If the respondent gains control of his or her money (i.e. revokes the POA or the conservatorship is dismissed) and then refuses to pay you, it will be hard to collect. I have seen this happen.

If the conservator's estate (the attorney in fact or conservator) does not pay, you file a complaint for contempt. i had to do this once and it worked very well.

I hope this helps.

David Schwartz
Law Office of David A. Schwartz