A recent decision of the Superior Court of New Jersey, Appellate Division, was the source of an interesting discussion among elder law attorneys.  The case is entitled Matter of Rizzo.

Essentially, the facts of the case are these:  The Bergen County Board of Social Services filed an action in the Superior Court of New Jersey to have Fred Rizzo declared to be an incapacitated individual.  Bergen County wanted the Office of the Public Guardian – a government office that will serve as an individual’s guardian under certain circumstances – appointed as Fred Rizzo’s guardian.

Fred Rizzo had a son, Douglas Rizzo.  Fred Rizzo had signed a power of attorney document in favor of his son, Douglas, so Douglas had the ability to make financial decisions for Fred.  Fred Rizzo, Douglas Rizzo, and Douglas Rizzo’s family all resided together in Fred Rizzo’s house.  The house was Fred Rizzo’s only asset.

After Bergen County filed the guardianship action, the court appointed a private attorney to serve as Fred Rizzo’s counsel in the guardianship proceeding.  The appointment of court-appointed counsel for an alleged incapacitated individual in a guardianship proceeding is standard operating procedure.  Typically, court-appointed counsel is paid from the assets of the incapacitated person, but a court rule permits the court to order the payment of court-appointed counsel’s fees as it deems appropriate.  Obviously, this is a vague rule, as it permits a court to order anyone to pay the fees of the court-appointed counsel.

In the Rizzo guardianship, the court specifically found that Douglas Rizzo had not done anything wrong while acting as his father’s power of attorney agent, and ultimately, the court named Douglas Rizzo, not the Office of the Public Guardian, as Fred Rizzo’s guardian.

The court ordered that Fred Rizzo was responsible to pay the fees of his court-appointed counsel; however, the order also provided that if Fred Rizzo’s estate were insufficient to pay the fees of his court-appointed attorney, then Douglas Rizzo would be responsible for the fees of Fred Rizzo’s court-appointed counsel.

Now, this case was the point of discussion among elder law attorneys for several reasons.  First of all, why did the Bergen County Board of Social Services file to have the Office of the Public Guardian appointed as Fred Rizzo’s guardian when Fred Rizzo had, at least, one son, Douglas, and Fred Rizzo had named his son Douglas as his power of attorney agent?  Typically, the Office of the Public Guardian will not serve as an individual’s guardian when the individual has family members who are ready, willing, and able to serve.

In addition, when someone has a power of attorney, they typically do not need a guardian.  Since Fred Rizzo had executed a power of attorney document naming his son, Douglas, as his power of attorney agent, why was a guardianship action even required?  The court specifically found that Douglas had acted properly as Fred Rizzo’s power of attorney agent, so wasn’t the filing of the guardianship action by the county unnecessary?  Given this fact, why weren’t the fees awarded against the county, which appears to have overreacted and caused the Rizzo family money and angst by filing the guardianship action in the first place?

Secondly, since Douglas did not file the guardianship action, since Douglas did not act improperly towards his father, and since Douglas had a power of attorney that permitted him to make decisions for his father, why were the court-appointed attorney’s fees awarded against him?  Think about this:  a government agency files a guardianship action against your father; in the end, the government “loses” its fight to have another government agency appointed as your father’s guardian, and you are required to pay legal fees.  Something doesn’t seem right about that.

What I think happened in this case, putting aside the appropriateness of filing the guardianship action, is that Douglas Rizzo was Fred Rizzo’s only child and Douglas was going to inherit Fred’s house, which was Fred’s only asset, so the court figured that either Fred or Douglas should pay Fred’s legal bills.  The court-appointed lawyer did work for Fred in the case, whether the case should have been filed or not.  But this case does highlight the potential for overreach by the government and it’s something that happens every day in some counties.