Seems like a lot of negative press lately for guardians and conservators. This recent Star Tribune article on guardians in Aitkin county is the latest. One of the guardianships referred to in the article was recently addressed in a published Court of Appeals of Minnesota opinion, In the Matter of the Guardianship and Conservatorship of Harold F. Doyle. In Doyle, the Court of Appeals examined the issues of: 1) whether a district court can sua sponte (on its own initiative) examine and disallow fees and expenses of guardians/conservators in an annual account (the Court held that it could); 2) whether the court can rely on documents that are not part of the record (the Court held that the district court could rely on the County’s Service Fee Policy in deciding the appropriateness of a guardian’s fees, since that policy was referred to in the guardianship statute. However the Court held that the district court erred in relying on MAGIC Standards of Practice in it’s decision, when those Standards had not been introduced by a party as evidence or authority, and the parties did not have an opportunity to review and/or comment on the Standards); 3) whether the district court properly rejected accounts and disallowed certain fees and expenses (the Court remanded, but gave guidance on what the district court should consider).
After reading the Doyle case, I’ve put together some tips for Guardians and/or Conservators billing for their services:
1) Determine whether there are Service Fee Policies or similar policies governing payment of guardians in the county in which you were appointed. Even if the policy applies for indigent wards, you should still review the policy as it may be instructive on what you should be charging. If you are going to charge something different, be prepared to explain why you charge more (i.e. you have greater expertise; this particular ward has more extensive needs based on his/her more extensive assets; the going-rate for private guardians/conservators in the area for non-indigent wards is X – and your rate is in line with that; etc.)
2) Review and be familiar with the MAGIC Standards of Practice. While they aren’t guidelines that courts can take judicial notice of, they are instructive and are put out by a reputable non-profit organization that addresses guardianships and conservatorships in Minnesota.
3) Always bear in mind that your fees and expenses need to have been rendered for necessary services or necessary expenses for the benefit of the ward.
4) Always keep detailed, meticulous and organized records of your fees and expenses. You are acting as a fiduciary for the ward/protected person. It isn’t your money. You need to account for every penny that you spend of the wards and be ready to tell the Court why you spent/charged what you did.
5) Save receipts for every expense.
6) Keep detailed time records. Not “worked on ward’s case”, but instead “Made telephone calls to social security to straighten out mix up with monthly social security check.” Etc.
7) Your hourly fee should be in line with what other guardians with your experience are charging for similar cases. Make calls to other local guardians, to the courts, to the county, etc. in order to determine what others are charging. Do a memo to the file documenting your findings so that if you are ever called upon to justify your fee, you can point to the research that you did to support your fee (and don’t charge the ward for this legwork that you did to figure out what fee to charge the ward; your research in this regard isn’t a benefit to the ward, rather it’s a part of your cost of doing business as a guardian and it’s a benefit to YOU to know that you have done the leg work to ensure you are charging the ward a fair fee).
Remember, in the end, it boils down to this: You are a fiduciary for the ward/protected person. It is the ward’s money, not yours. At the end of the day you should feel comfortable explaining to the Court why you charged for every penny that you did, and you should have the documentation to support it.