In most civil actions in the State of New Jersey, parties are responsible for the payment of their own counsel fees subject to limited exceptions. In the context of a guardianship action, however, the party who commences the guardianship action may be entitled to the payment of their counsel fees from the funds of the person who is alleged to be incapacitated. This fee shifting provision is provided for by Rule 4:86-4.
In general, this Rule provides that counsel for the party seeking guardianship, appointed counsel, or the guardian ad litem may seek the payment of their fees from the Estate of the alleged incapacitated person. The payment of any such fees, however, remains within the court’s discretion, and thus, the court has the ability to reduce any request for fees based upon its review of any such application and the facts of the matter before it. Obviously, if the alleged incapacitated person does not have sufficient funds to pay such fees, then all parties will be forced to bear their own fees and costs. In extreme cases, the court has the authority to order that a party involved in the action be responsible for the payment of such fees should the court make a finding as to unlawful or inappropriate conduct on their part. Such an award, however, is fairly rare.
In light of the fee shifting provision of this statute, a party should be aware that it can seek fees should they be seeking to assist an alleged incapacitated person, however, financially they are unable to fund such action. It is for these reasons that the legislature provided such provision in the Court Rules. Regardless, the guardianship process is highly technical in nature, and thus, it is always recommended that a party who might seek a guardianship confer with competent counsel.
