NEWTON — The Appellate Division of Superior Court has decided in favor of current Sussex County Counsel Kevin Kelly, ordering the county pay him nearly $43,500 in fees from when he represented a possibly incompetent person before he became county counsel.
The case originated in the Surrogate’s Court which has jurisdiction over actions and proceedings involving, among other things, the probate of wills, affairs of decedents, and the guardianship of the property of underage or incapacitated persons.
The unanimous decision of the three-judge panel could set a precedent in the state on how, and how much, appointed attorneys are paid for their services and to what extent they can go in representing those people.
The case began in March 2015 when Hamburg police were called to investigate the well-being of an 85-year-old woman who was still living in her home, but with her son as a caretaker. The decision said the woman’s husband had moved out of the house and was living with a daughter.
The local police referred the woman to Adult Protective Services, a unit within the county’s then-Division of Social Services. The decision notes that the son “actively opposed” the police investigation and went so far as to file a lawsuit against the police, the county division, a social worker and a caseworker. That case was summarily dismissed in December 2017.
In early 2016, the office of then-county counsel John Williams, acting on behalf of the division and APS, filed a complaint seeking to declare the woman incapacitated and to appoint a guardian as prescribed by law.
Kelly’s law firm, Kelly and Ward, was appointed as the woman’s counsel and later in the year another attorney, Megan MacMullin, was appointed as temporary guardian, superseding the woman’s son. In August the elderly woman was adjudged incapacitated and her daughter was appointed as the guardian.
With the guardianship completed, Kelly filed an application with the county to be paid for his counsel fees which was opposed by Williams.
In June 2018, the trial court granted Kelly’s application and entered that order in the record.
In the case of the Hamburg woman, Chiusano said she was living in poor conditions and the son was fighting against every step taken to get her the help she needed.
In most cases, fees for the guardians are paid by the estate of the person getting the help. In some cases, a hospital or nursing home picks up the costs and in rare cases, the county pays.
Chiusano noted that it’s not just legal guardians who get involved, but medical experts and health care facilities also charge for their services. He said that some charges are normal and “substantial discounts” are often given as well.
Chiusano emphasized the unusual circumstances of this case.
In his 2018 ruling, Judge Robert Brennan noted “the matter was highly contentious and that (the son) endangered his mother’s welfare.”
The trial judge found that the mother was found to “have fungus under her breasts, dead bug bites, and extremely poor hygiene.”
The son also kept exterminators away from his mother’s residence as well as keeping his siblings and others from seeing his mother. In most of those cases, Kelly, as the woman’s legal counsel, had to step in.
The appellate judges also noted a dozen applications were filed by the son “for the most part frivolous, requiring responses from Kelly.”
The opinion noted that “without the steps taken by Kelly to meet (interference from the son), Kelly’s client would have suffered even more than she did.”
Quoting directly from the trial judges’ statement, the appeals court’s judges wrote “it is not equitable on the one hand for APS (Adult Protective Services) not to carry out all of its statutory duties, leave them to Kelly, and then object to payments to Kelly for his fees when APS took no action, and then being critical of Kelly having done that” and all because it was “essential to (mother’s) welfare that Kelly take action in that regard.”
The appellate judges noted “the trial judge emphasized the exceptional efforts expended by Kelly” because of the son’s impediment to the care for his mother.
The trial judge, they also said, on his own motion ordered the son to show cause why he, the son, shouldn’t be ordered to pay counsel fees and costs of any party opposing any action filed by him in the future.
The trial judge eventually ordered the surrogate to accept the son’s motions, but not to file them.
The appellate judges also took APS to task for prolonging the litigation by not supplying the financial analysis and investigation required by law. “Had APS done so, it would have been readily apparent from the onset of the proceedings that (mother) did not have the funds or ability to pay for professional services. Instead, the temporary guardian (MacMullin) and court-appointed counsel (Kelly) had to perform these tasks, which should have been done at APS’s expense.”
MacMullin was paid for her time as temporary guardian.
In their final statement about the merits of the case, the judges wrote: “The remaining issues raised by appellant do not have sufficient merit to warrant discussion in a written opinion.”
Megan A. Ward handled the appellate case for the law firm.
Kelly said that because of his position as county counsel — he was appointed for a three-year term in July 2018 — he would not comment on the matter.
Gregory J. Castano Jr., who wrote the brief on behalf of the county, was not available for comment.
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Appellate court awards lawyer fees
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