This case is before the Court upon an appeal of James Douglas, who brings the instant appeal pro se, (See footnote 1) although he was the former attorney for Donna Meadows, the guardian of Jean Holly Dandy, (See footnote 2) from the March 12, 2008, (See footnote 3) Order of the Circuit Court of Nicholas County. The circuit court ordered Mr. Douglas to repay Ms. Dandy's estate certain sums that had been paid to Mr. Douglas in his representation of Ms. Meadows. Specifically, the circuit court directed, in pertinent part, as follows:
3. Any compensation from Ms. Dandy's estate by received [sic] Mr. Douglas for services rendered subsequent to Ms. Dandy's competency hearing on December 15, 2005, is to be returned to the Estate of Dandy.
4. Any compensation from Ms. Dandy's estate received by Mr. Douglas for the Writ of Prohibition is to be returned to the Estate of Dandy.
5. Considering the foregoing, Mr. Douglas is only entitled to receive from Ms. Dandy's estate compensation for services rendered through the December 15, 2005, hearing excluding costs associated with the Writ of Prohibition. Based on the itemized bills submitted to the court, Mr. Douglas may receive from Ms. Dandy's estate no more than $7,198.75 for his services (nearly 36.92 hours at $195 per hour), plus $237.91 for expenses, for a total of $7,436.66 in this matter. Any compensation received by Mr. Douglas in excess of this amount is to be returned to the Estate of Dandy.
6. Ms. Chapman is to continue serving as Ms. Dandy's Guardian ad Litem in this matter until she files a report with the Court indicating that all funds are returned, as herein ordered, to the Estate of Jean Dandy.
The issues raised by Mr. Douglas on appeal are as follows:
1) whether the powers
and authority of a guardian ad litem in this context are defined and limited by West Virginia
Code § 44A-2-7 (2004) under which the guardian ad litem is appointed to represent an
alleged protected person; 2) whether the duties and authority of a guardian ad litem appointed
pursuant to West Virginia Code § 44A-2-7 to represent an alleged protected person end when
the guardian or conservator is appointed and the appeal period has expired; 3) whether an
attorney-in-fact, utilizing the funds of her principal and alleged protected person, can employ
legal counsel for the purposes of protecting the person or property of the principal, or for the
purposes of litigating the issue of who will be chosen as the principal's conservator or
guardian; 4) whether a circuit court exceeds its authority in ordering an attorney to refund a
portion of his fees to one other than his non-complaining client; and 5) whether a circuit
court that orders an attorney to refund a portion of his fees to one other than his client
violates the attorney's and his client's right to contract, as guaranteed to him by the United
States Constitution. (See footnote 4) Based upon our review of the parties' briefs and arguments, the record,
and all other matters before the Court, we find that the circuit court did not abuse its
discretion in ordering Mr. Douglas to repay the protected person's estate some attorney's fees
that the circuit court found Mr. Douglas was not entitled to receive from the estate.
Accordingly, we affirm the decision of the Circuit Court of Nicholas County.
1) Mr. Douglas reported being paid a total sum of $17,447.50 by Ms. Dandy's estate;
2) Mr. Douglas received $9,912.50 for defending the first petition that was withdrawn
and the re-filed petition; and
3) Mr. Douglas received a flat fee of $7,535.00 for the writ of prohibition.
By Order entered December 28, 2006, regarding a December 18, 2006, hearing relative to the report of the guardian ad litem, the circuit court stated that [o]n or before February 15, 2007, Mr. Douglas may file a memorandum of law justifying the fees paid to him by the Estate of Jean Dandy. (See footnote 11) The circuit court found that
under Kentucky law, a power of attorney agreement does not convey presumptive authority to the attorney-in-fact to oppose a guardian appointment. As a result, the Court finds that the work performed by Mr. Douglas in seeking Ms. Meadows' appointment as guardian was work performed on behalf of Ms. Meadows, not Ms. Dandy, and was thereby beyond the scope of the Power of Attorney Agreement and beyond the scope of services that Ms. Dandy should be required to pay for. Thus, the Court finds that Mr. Douglas is not entitled to charge Ms. Dandy's estate for services he performed after the issue of competency was determined, which occurred following the hearing on December 15, 2005.
Finally, the Court finds that the costs and fees charged by Mr. Douglas to Ms. Dandy's estate should not include those incurred for the Writ of Prohibition. The decision to file the Writ of Prohibition was made by Ms. Meadows and her counsel. It was no way beneficial to Ms. Dandy and it would not be fair that her estate be charged for it. Further, Mr. Douglas did not itemize the charges for the Writ and the Court does not award attorney's fees on a flat rate basis. Thus, the Court finds it inappropriate to charge Ms. Dandy's estate for the Writ.
Thereafter, by Order entered on March 12, 2008, the circuit court ordered Mr. Douglas to repay to Ms. Dandy's estate $2,687.50 of the $9,912.50 paid from the estate as that amount was charged to the estate after the December 15, 2005, hearing. Additionally, Mr. Douglas was directed to repay to Ms. Dandy's estate the $7,500.00 fee charged for the writ of prohibition. (See footnote 12) It is the repayment of the attorney's fee charged in connection with the writ of prohibition that is at the heart of Mr. Douglas' appeal.
In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. Pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W. Va. 109, 492 S.E.2d 167 (1997). It is with these standards in mind that we now review the case before us.
(a) The court shall appoint legal counsel for the alleged protected person. In appointing legal counsel, the court shall consider any known preferences of the alleged protected person
(b) Legal counsel shall have the following major areas of concern: (1) Whether or not a guardian is needed; (2) limitation of the role of the guardian to the protected person's specific needs _ e.g., personal supervisor, business affairs, medical consent only; (3) if needed, assure that the person or entity with the greatest interest in the protected person is appointed; (4) if needed, assure the adequacy of the bond; and (5) if needed, assure consideration of proper placement.
(c) In responsibly pursuing the major areas of concern set forth in subsection (b) of this section, counsel may perform any or all of the following: (1) Promptly notify the individual and any caretaker of the appointment of counsel; (2) contact any caretaker, review the file and all other relevant information; (3) maintain contact with the client throughout the case and assure that the client is receiving services as are appropriate to the client's needs; (4) contact persons who have or may have knowledge of the client; (5) interview all possible witnesses; (6) pursue discovery of evidence, formal and informal; (7) file appropriate motions; (8) obtain independent psychological examinations, medical examinations, home studies, as needed; (9) advise the client on the ramifications of the proceeding and inquire into the specific interests and desires of the individual; (10) subpoena witnesses to the hearing; (11) prepare testimony for cross-examination of witnesses to assure relevant material is introduced; (12) review all medical reports; (13) apprise the decision maker of the individual's desires; (14) produce evidence on all relevant issues; (15) interpose objections to inadmissible testimony and otherwise zealously represent the interests and desires of the client; (16) raise appropriate questions to all nominations for guardian and the adequacy of the bond; (17) take all steps to limit the scope of guardianship to the individual's actual needs, and make all arguments to limit the amount of intervention; (18) ensure that the court considers all issues as to the propriety of the individual's current or intended placement and that the limitations are set forth in the order; (19) inform the client of the right to appeal, and file an appeal to an order when appropriate; and (20) file a motion for modification of an order or a petition for writ of habeas corpus if a change of circumstances occurs which warrants a modification or termination.
(d) The protected personal shall have the right to an independent expert of his or her choice to perform an evaluation and present evidence.
The foregoing is an expansive list of items that the legal counsel for the alleged protected person is charged with doing. Moreover, there is no limitation contained within the statute regarding the protected person's legal counsel's role. Significantly, the statute does not terminate the role of the legal counsel upon the appointment of a guardian or conservator; rather, West Virginia Code § 44A-2-7(c)(20) specifically contemplates that the legal counsel may file a motion for modification of an order or a petition for writ of habeas corpus if a change of circumstances occurs which warrants a modification or termination. Id. The filing of such a motion would occur after the guardian or conservator was appointed.
Mr. Douglas relies upon the decision of the Court in Sowa v. Huffman, 191 W. Va. 105, 443 S.E.2d 262 (1994), as support for his position that the guardian ad litem's role terminates upon the appointment of a guardian and conservator and, therefore, the guardian ad litem should not have been ordered to review his legal fees. The guardian ad litem, however, correctly points our that the Sowa decision was rendered under West Virginia Code § 27-110-1(b) (1990), which was replaced by West Virginia Code § 44A-2-7 in 1994.
Further, in Sowa, the Court stated:
However, [i]t is not the province of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten, or given a construction of which its words are not susceptible, or which is repugnant to its terms which may not be disregarded. State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 145, 107 S.E.2d 353, 358 (1959) (citation omitted). See also syl. pt. 1, Consumer Advocate Division of the Public Service Commission v. Public Service Commission, 182 W.Va. 152, 386 S.E.2d 650 (1989). Therefore, although we recognize that the current statutes may not adequately protect the incompetent, it is the legislature which must rectify the problem.
191 W. Va. at 111, 443 S.E.2d at 268. Right after the Sowa decision, the West Virginia statute was changed by the Legislature. The statute, in its current form known as the West Virginia Guardianship and Conservatorship Act, West Virginia Code §§ 44A-1-1 to -5-9 (2004 and 2008 Supp.), does not provide a termination date for the legal counsel appointed to represent the protected person.
Under the foregoing current statutory provisions, the circuit court did not abuse its discretion in directing the guardian ad litem as the protected person's legal counsel to review the expenditures of the guardian and the guardian's attorney from the principal's estate, and to remain as guardian ad litem until the expenditure the court ordered Mr. Douglas to repay to Ms. Dandy's estate, indeed, had been repaid.
B. The circuit court did not err in ordering the guardian's legal counsel to refund a portion of his attorney's fees to the protected person's estate.
The power of attorney entered into between Ms. Dandy and Ms. Meadows, prior to Ms. Dandy's competency coming into question, is at the heart of Mr. Douglas' argument that Ms. Meadows was allowed to pay him the subject attorney's fees from Ms. Dandy's estate. Mr. Douglas posits that in the power of attorney that Ms. Dandy signed on April 12, 2001, Ms. Dandy gave Ms. Meadows the power to (k) sign in my name on all accounts standing in my name, and to withdraw funds from said accounts, to open accounts in my name or her [Meadows] name as my attorney in fact. Further, the power of attorney document, in paragraph (m), authorizes the attorney-in-fact to retain counsel and attorneys on my behalf, to appear for me in all actions and proceedings to which I may be party in the courts of Kentucky or any other court in the United States.
It is significant to note at the outset that all parties agree and the law is clear that the power of attorney is governed by the laws of the State of Kentucky as that is the state where Ms. Dandy resided when she executed the power of attorney. (See footnote 13) The circuit court determined that the language contained within the power of attorney did not authorize Ms. Meadows to hire an attorney to seek Ms. Meadows' appointment as guardian or conservator and to pay for this attorney with funds from the principal's, Ms. Dandy's, estate. What the power of attorney did allow was for Ms. Meadows to retain counsel and attorneys on my [referring to Ms. Dandy] behalf, to appear for me in all actions and proceedings to which I may be party in the courts of Kentucky or any other court in the United States. (Emphasis in original). The law in Kentucky is clear that a power of attorney is not a substitute for appointment of a guardian and cannot prevent the institution of guardianship proceedings. Rice v. Floyd, 768 S.W.2d 57, 61 (Ky. 1989). As the circuit court correctly determined in the instant matter,
[i]n other words, under Kentucky law, a power of attorney agreement does not convey presumptive authority to the attorney-in-fact to oppose a guardian appointment. As a result, the Court finds that the work performed by Mr. Douglas in seeking Ms. Meadows' appointment as guardian was work performed on behalf of Ms. Meadows, not Ms. Dandy, and was thereby beyond the scope of the Power of Attorney Agreement and beyond the scope of services that Ms. Dandy should be required to pay for.
Thus, the circuit court concluded that while Ms. Meadows could hire an attorney on behalf of Ms. Dandy for purposes of determining Ms. Dandy's competency, the circuit court determined that Mr. Douglas was not entitled to charge Ms. Dandy's estate for the services he performed after the issue of competency was determined, which occurred following the December 15, 2005, hearing. The Court finds, based upon the application of Kentucky law, that the circuit court committed no error in reaching this decision.
Further, under the relevant Kentucky law, the circuit court concluded that Mr. Douglas could not receive any costs associated with the filing of a writ of prohibition with this Court, even though the writ of prohibition was filed prior to Ms. Dandy's competency determination on December 15, 2005. (See footnote 14) Specifically, the circuit court found that
the decision to file the Writ of Prohibition was made by Ms. Meadows and her counsel. It was no way beneficial to Ms. Dandy and it would not be fair that her estate by charged for it. Further, Mr. Douglas did not itemize the charges for the Writ and the Court does not award attorney's fees on a flat rate basis. Thus, the Court finds it inappropriate to charge Ms. Dandy's estate for the Writ.
In the instant matter, the circuit court provided Mr. Douglas with ample opportunity to justify the attorney's fee he charged for the writ of prohibition by way of requesting that Mr. Douglas submit additional support for the attorney's fee he received from the estate for the writ of prohibition. Mr. Douglas did not include a copy of his submission in the file on appeal, but it apparently failed to provide the Court with any justification for the $7,500.00 fee he charged for the filing of a seven-page writ of prohibition, with a 14 point font, on a technical point that the circuit court determined was in no way beneficial to Ms. Dandy. The Court finds the circuit court did not err in this conclusion. (See footnote 15)