State, Not Nursing Home, Must Pay Fees of Residents’ Court-Appointed Guardianship Attorney

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In two separate cases, a Maryland appeals court rules that a nursing home does not have to pay attorney’s fees to an attorney appointed to represent residents in guardianship proceedings. Rather, the state must pay the fees, at a much lower reimbursement rate. In Re Jon (Md. Ct. Spec. App., No. 361, Feb. 8, 2019) and In Re Selby (Md. Ct. Spec. App., No.360, Feb. 8, 2019).

When family members were not able to assist with the Medicaid applications of two nursing home residents, the nursing home filed petitions for guardianship of the residents, Hyung Bok Jon and Margo Selby. The court appointed attorney Nina Helwig to represent both residents. The court-appointed guardians for the residents and Ms. Helwig filed a petition for attorney’s fees. Ms. Helwig claimed that because both residents were indigent and could not pay the fees, the nursing home should pay them.

The nursing home opposed the fee petitions, arguing that the state is required to pay attorney’s fees when the ward is indigent. State law requires the state to pay attorney’s fee in a guardianship of the person case, but there is no attorney’s fee provision in guardianship of the property cases. A state rule interpreting the statute, however, provides that the state must pay attorney’s fees. Ms. Helwig argued that the nursing home benefited from her services because the residents needed a guardian to qualify for Medicaid and that the rate paid by the state was $75 per hour, which is $175 less than her hourly rate. The trial court ordered the nursing home to pay the attorney’s fees in both cases, and the nursing home appealed.

The Maryland Court of Special Appeals reverses both cases, holding that the state is required to pay attorney’s fees for indigent clients in guardianship cases. According to the court, the rule requiring the state to pay attorney’s fees is not inconsistent with the statute simply because the statute does not make a provision for attorney’s fees.

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