In The Matter of The Conservatorship of MARTIN A. BACHAND, a Person Alleged to Need Protection.
CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE HEIDI LINNGREN
JENNIFER L. TOMAC of Tomac & Tomac, PLLC Rapid City,
South Dakota Attorneys for Appellant, Beverly Sears,
PAIGE HUNT Sturgis, South Dakota Attorney for Appellee,
Michael Bachand, Interested Party.
S. OLSON of Lynn Jackson Shultz & Lebrun, PC Rapid City,
South Dakota Attorneys for Appellee, Lyndell Petersen,
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
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,
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
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
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
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. After ...