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In re Conservatorship of Bachand

Supreme Court of South Dakota

January 24, 2018

In The Matter of The Conservatorship of MARTIN A. BACHAND, a Person Alleged to Need Protection.

          CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE HEIDI LINNGREN Judge

          JENNIFER L. TOMAC of Tomac & Tomac, PLLC Rapid City, South Dakota Attorneys for Appellant, Beverly Sears, Guardian.

          KAREN PAIGE HUNT Sturgis, South Dakota Attorney for Appellee, Michael Bachand, Interested Party.

          ERICKA S. OLSON of Lynn Jackson Shultz & Lebrun, PC Rapid City, South Dakota Attorneys for Appellee, Lyndell Petersen, Conservator.

          OPINION

          ZINTER, Justice

         [¶1.] The question on appeal is whether a guardian's attorney fees should be paid from a protected person's estate when the fees were incurred in responding to pleadings to remove the guardian and to move the protected person to an assisted living facility. We reverse the circuit court's denial of fees and remand to determine whether the fees were reasonable in amount and necessarily incurred in the administration of the guardianship.

         Facts and Procedural History

          [¶2.] Martin Bachand suffered a head injury in 2006. His son Michael Bachand was appointed guardian in 2007 and conservator in 2008. Notwithstanding the guardianship, Martin continued to live with his significant other and caregiver, Beverly Sears.

         [¶3.] Michael and Martin began having disagreements, and Michael suffered a stroke in 2010, which required him to resign. A settlement agreement was reached under which Sears replaced Michael as guardian and Lyndell Petersen became Martin's conservator.

         [¶4.] Martin continued to live with Sears. The court preauthorized budgeted, monthly guardianship expenses associated with Martin living in Sears's home. For example, in 2014, the approved budgeted expenses included $250 for adult daycare providers, $900 for in-home-care providers, and $829.50 for Sears's household expenses. However, Martin was occasionally placed in facilities outside Sears's home, which required expense approvals from Petersen or the court. In 2016, Sears suffered from health issues that required her hospitalization and limited her ability to care for Martin. This also required Petersen to request additional care for Martin.

         [¶5.] Michael became dissatisfied with Sears as Martin's guardian. In August 2016, he filed a motion to have Martin placed in an assisted living facility. He also petitioned to have Sears removed as guardian, alleging that she was unfit. Michael alleged that she had limited ability to care for Martin, that her acts frequently required expenditures exceeding what the court had authorized, and that she failed to file annual guardianship reports for several years. Michael also alleged that Sears benefitted personally from the guardianship arrangement because it provided both Sears and Martin with financial resources, house cleaning, and meal preparation. Sears retained attorneys from Tomac & Tomac to respond to the petition and motion. Sears's attorney fees and some of the related expenses are the subjects of this appeal.

         [¶6.] The attorney services included matters such as reviewing the entire nine-year-old case file, having property appraised, having Martin and his living conditions evaluated, conducting depositions, researching issues, and drafting court documents in response to Michael's motion and petition. Following extensive preparation, a two-day hearing was scheduled. Although the parties and counsel appeared at the courthouse prepared to try the matter, the court urged the parties to confer and consider a settlement. The parties conferred and settled both disputes at the courthouse. Sears agreed to step down as guardian but Martin would not be moved to a facility. He would remain in Sears's care in her home.

          [¶7.] At the conclusion of the hearing, Sears orally moved for her attorney fees incurred in this dispute ($19, 102.86). The circuit court took the matter under advisement and held an additional hearing on the matter.[1] After ...


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