Dispute over attorney fees incurred for a contested guardianship proceeding; Article V, part 3 of the Estates & Protected Individuals Code (MCL 700.5301 et seq.); MCL 700.5305; Indigency determination; MCL 700.5305(3)

The court held that the probate court erred by ordering payment of appellee-attorney’s (Orlando) fees incurred for services at a contested guardianship hearing. However, it held that fees may be imposed for Orlando’s prehearing services because the appointment was proper during that time. The probate court appointed Orlando as appellant-guardian’s (Todd) mother’s (Griffin) attorney for the contested guardianship proceedings. It eventually released her and directed her to bill the estate. Todd objected to the attorney fees, but the probate court rejected his objection. On appeal, the court agreed with Todd that the probate court erred by allowing Orlando to remain as Griffin’s counsel at the contested guardianship hearing. It noted that although the probate court correctly appointed legal counsel, the conditions that necessitated appointed counsel had been resolved. The probate court dismissed the original petition and, “more importantly, Griffin had retained counsel.” Under the circumstances, the probate court “lacked statutory authority to continue Orlando’s appointment.” As such, there was “no basis for requiring Griffin to pay Orlando’s fees for services rendered at the hearing. The statute contemplates that the individual alleged to be incapacitated will pay one attorney, either one she retains or court-appointed counsel.” The court also agreed with Todd that Griffin was entitled to a determination of indigency before the probate court may order payment of the remaining fees. “Ideally, a claim that Griffin could not afford payment of appointed counsel’s fees would have been made earlier in the proceedings. On the other hand, it is understandable that this issue was not raised until after Todd received Orlando’s bill. In any event, the issue was raised before the probate court and the statute is clear that the state must bear the expense of legal counsel if Griffin is indigent.” Thus, Griffin was “entitled to a determination on that matter before she can be compelled to pay Orlando’s fees. The probate court abused its discretion by not addressing Griffin’s ability to pay after Todd raised that issue.” Reversed and remanded for further proceedings.