Ozaukee County, which is on the hook to pay more than $98,000 in attorney’s fees related to a guardianship case it lost, will appeal it to the state Supreme Court, officials decided Wednesday.
The county Executive Committee voted unanimously to appeal the case on the advice of Corporation Counsel Rhonda Gordon. If the high court chooses to take the case, oral arguments would likely begin in spring.
The Second District Court of Appeals ruled last month that Ozaukee County Circuit Judge Joseph W. Voiland was correct when he dismissed a 2015 petition filed by the county’s Department of Health Services seeking guardianship of an 80-year-old woman’s estate and sought to place her in assisted living. Voiland also ordered the county to pay $97,746 in private attorney fees accrued by her son. who opposed the petition, according to the appeals court ruling. The woman and her adult children are identified only by their initials in court documents.
According to the appeals court ruling, the woman had assigned power of attorney to the son, taking that away from her daughter with whom the son had been at odds for years. But the county believed the woman was not competent to make that decision, had possibly been coerced by her son to do so and believed it was in the mother’s best interests for the county to assume guardianship.
Voiland sided with the son.
The appeals court supported Voiland in that decision. But it disagreed with Voiland on whether the county should pay the son’s legal fees related to the appeal and sent the case back to Voiland to determine what those fees are.
According to the case summary contained in the ruling, 22 witnesses testified before Voiland, creating what the three-judge panel called “protracted proceedings.” They included the woman’s psychologist, estate planning attorney, investment adviser, her children, county and senior center workers and others familiar with the woman.
Evidence showed the woman was diagnosed with early dementia in 2012 and Alzhiemer’s disease in 2015, exhibited poor short term memory, sometimes didn’t know the date or day, had issues with organization and food storage and spent large sums of money on items from infomercials.
But others testified she also had an active social life that included belonging to a book club and attending exercize classes, cared for her dog and tended to her home and errands.
In Voiland’s opinion, the county did not establish that the woman was incompetent when she signed the power of attorney over to her son.
With the competing accounts, the appeals panel said, Voiland was “like Tevye in ‘Fiddler on the Roof,’ the court was presented with much on-the-one-hand-but-on-the-other-hand testimony as to both incompetency and undue influence.”
In their decision to support Voiland, the appellate judges said the county presented few if any arguments to justify overturning his decision, saying “the county’s dogged rehashing of evidence contrary to that supporting the court’s decision does not persuade us that the court erred.”
As for the fees the county is responsible for, the county argued they were excessive and that a lower rate should be applied, namely the rate paid to public defenders.
But Voiland and the appeals judges said the law prescribes that the rate, if private attorneys are used, should be the rate “customarily charged in the locality.”
The public defender rate, Gordon said, would have been $480 for the entire case.
The county did not contest the fees until after the fact, the judges ruled, and therefore was liable to pay the private fees. The county also refused the son’s settlement offers, even after the county’s guardianship was denied, the judges pointed out.
Gordon disputed the court’s opinion.
“This was a classic case of elder abuse,” Gordon said in an interview. “We did what we would hope every county elder agency would do in similar circumstances.”
County Board Chairman Lee Schlenvogt said, “We have an obligation to our taxpayers” to fight the decision, which could set a precedent for counties all across the state.
“I think we have some good feelings on this, not just financially but for the future,” Supervisor Paul Melotik told the committee.
County will appeal costly ruling to state Supreme Court
1 comment:
The cost to appeal has always been out of the reach of the common person.
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