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In re Guardianship of Decker

Court of Appeals of Washington, Division 2

June 16, 2015

In the Matter of the Guardianship of Keiko Decker

Oral Argument: February 27, 2015.

Page 670

Appeal from Pierce County Superior Court. Docket No: 11-4-00294-5. Judge signing: Honorable Jack Nevin. Judgment or order under review. Date filed: 09/06/2013.

Gregory M. Miller (of Carney Badley Spellman PS ), for appellant.

Eileen S. Peterson and Margaret Y. Archer (of Gordon Thomas Honeywell LLP ), for respondent Maurice Laufer, as guardian.

Robert W. Ferguson, Attorney General, and Natalie K.A. Cooper, Assistant, for respondent Department of Social and Health Services.

Authored by Lisa Worswick. Concurring: Thomas R Bjorgen, Lisa Sutton.


Page 671

Lisa Worswick, J.

[188 Wn.App. 433] [¶1] Daniel Quick, former attorney for Keiko Decker, the incapacitated person in this adult guardianship case, appeals the trial court's order limiting Quick's attorney fees and disgorging fees already paid to him. He argues that the trial court erred by (1) entering orders reducing Quick's fees without authority to do so, or alternatively by (2) reducing Quick's fees without engaging in the proper analysis. Decker's guardian, Maurice Laufer, requests attorney fees on appeal under RAP 18.1 and RCW 11.96A.150. We affirm the trial court's orders and grant Laufer his requested attorney fees.


[¶2] This appeal concerns only the issue of attorney fees in a guardianship case. In February, 2011, the Department of [188 Wn.App. 434] Social and Health Services petitioned for a guardianship over Decker, an elderly Japanese-born woman, alleging she was incapacitated. The petition stated that Decker had been diagnosed with dementia, had been exhibiting paranoid behavior, and appeared to have been financially exploited. The Department estimated that Decker's assets were worth $708,700. Accordingly, the trial court's commissioner appointed a guardian ad litem (GAL) to represent Decker's best interests in the guardianship proceedings.

[¶3] The GAL told the commissioner that Decker had refused to meet with or cooperate with him. He petitioned the commissioner to appoint Daniel Quick as Decker's attorney. Quick spoke some Japanese and was familiar with Japanese culture. On June 22, the commissioner signed an order appointing Quick as Decker's attorney. The order stated that Quick should be paid at Decker's expense, " with fees for representation subject to the Court's approval pursuant to RCW 11.92.180 and SPR 98.12[W]." [1] Clerk's Papers (CP) at 32. It approved an hourly rate of $250.00 per hour and authorized 10 hours of representation. The order further stated that Quick " shall not spend more than 10 hours representing Ms. Decker without prior court approval," and that " [f]ees for time are limited to 10(TEN) [sic] hours at the rate of $250.00 per hour without further court order entered before incurring the additional time." CP at 32, 33.

[¶4] Later, pursuant to the parties' stipulation, the commissioner entered an agreed order authorizing 40 additional hours for Quick. This order provided that Quick " shall not spend more than forty (40) hours representing Ms. Decker without prior court approval." Suppl. CP at 424. The total amount of court approved time was 50 hours.

[¶5] On August 16, Quick petitioned for approval of several documents relating to his representation of Decker. He [188 Wn.App. 435] requested that the commissioner approve a fee agreement with Decker that contained no limitation on his time. He also requested prior approval of " reasonable time spent and costs incurred for taking this matter to trial according to the wishes of the alleged incapacitated person." Suppl. CP at 429. He did not specify a number of additional hours in this request. Quick attached a copy of this unsigned, purported fee agreement with Decker. This fee agreement provided for hourly rates of $250 for Quick, $200 for associate attorneys, and $125 for paralegals. The commissioner reserved ruling on these requests

Page 672

without giving any reasons. The commissioner never approved the requests.

[¶6] On December 20, apparently without prior notice to the GAL, Decker filed a durable power of attorney with the Pierce County Auditor, naming Quick as her attorney-in-fact. The durable power of attorney provided that Quick " shall have all powers of an absolute owner over the assets and liabilities of [Decker]." Suppl. CP at 470. The document provided: " It is the principal's intent that the power given to the attorney-in-fact designated herein be interpreted to be so broad as to obviate the need for the appointment of a guardian for the person or estate of the principal." Suppl. CP at 473. It named a certified professional guardian, Glenda Voller, as successor attorney-in-fact to be appointed " only upon the death, disability or incapacity of, or the written resignation by" Quick. Suppl. CP at 469.

[¶7] Decker continued to be uncooperative with the GAL. On May 9, 2012, the GAL filed a report recommending either appointment of a limited guardian or a less restrictive alternative. On June 8, the Department moved for dismissal of the guardianship proceedings, arguing that an alternate arrangement in lieu of a guardianship would suffice. The Department expressed concerns about Quick: " Mr. Quick is acting in two, conflicting capacities, both as client (as Ms. Decker's attorney-in-fact) and as his own legal counsel." CP at 47. Thus, the Department suggested that Voller, the successor attorney-in-fact, be appointed [188 Wn.App. 436] attorney-in-fact. It argued that Decker might receive adequate protection and assistance through a less restrictive alternative such as the durable power of attorney, rather than a full guardianship.

[¶8] Decker, through Quick, opposed the Department's motion to dismiss the guardianship. She argued that she should be able to defend against being deemed an incapacitated person through an adversarial process, rather than receive a less restrictive alternative. The commissioner denied the Department's motion to dismiss the petition, without giving any reasons.

[¶9] Decker then moved to dismiss the petition for guardianship completely. The commissioner denied this motion.

[¶10] At this time, Decker was 80 years old, had been involved in some recent car accidents, and had been diagnosed with dementia. Settlement negotiations ensued between the Department and Decker. Pursuant to these negotiations, Decker approved a proposal that her tax preparer, Maurice Laufer, should act as her guardian.

[¶11] On May 7, 2013, the commissioner entered an order appointing Laufer as guardian of Decker's person and estate. The commissioner based her order on the GAL's written report, a medical and psychological report, and other documents. The order contained findings of fact and conclusions of law. The commissioner found that Decker's durable power of attorney naming Quick as her attorney-in-fact " is not in effect due to questions of Ms. Decker's capacity at the time she executed this document," that Decker " does not have the current capacity to execute a power of attorney instrument at this time," and that Decker " is capable of managing some personal and/or financial affairs, but is in need of the protection and assistance of a limited Guardian" of her person and estate. CP at 86. It ruled that Decker " is an Incapacitated Person within the meaning of [chapter 11.88 RCW], and a Limited Guardian of the Person [and] Limited Guardian of the Estate should be appointed." CP at 88.

[188 Wn.App. 437] [¶12] The commissioner canceled the prior durable power of attorney in its entirety. She discharged Quick as Decker's attorney, and she ruled that " Daniel Quick PLLC may petition the court for additional fees and costs up until the 90 day hearing." CP at 95.

[¶13] Quick moved for approval of his attorney fees. He requested approval of $118,110.65 that he had already been paid and for an additional $17,137.50 for an unspecified number of hours of representation. He submitted lengthy billing summaries. Quick submitted a copy of a signed attorney fee agreement between himself and Decker, dated October 20, 2011.


Page 673

The commissioner approved a total of $30,000 for Quick's fees and costs. This sum appears to reflect 120 hours of work at $250 per hour, but the commissioner did not specify the number of hours she approved. The court commissioner ordered that Quick " shall pay to the Guardian the difference of anything paid over $30,000 within six months from today's date." CP at 331. The commissioner did not enter findings of fact and conclusions of law, but she did discuss this ruling on the record. She dismissed Quick's argument that Decker had agreed to his fees, saying:

Regardless of the contract, you still are under a court order only to do a certain amount of work without further court authority. So you kind of took your own risk in that regard, because the court is always mindful of maintaining a substantial amount, try to limit litigation costs and keep as much money available for the alleged incapacitated person.

CP at 350-51. The commissioner reminded Quick that she had approved only 50 hours in her previous orders. The commissioner concluded that Quick's fees were not reasonable, stating:

$100,000 plus is not reasonable in this kind of matter. No matter how hard or difficult Ms. Decker is, no matter how much of a defense she wants, you still have to be mindful of, you know, what kind of context this is. So, you know, I don't know [188 Wn.App. 438] what to say. You're authorized from (inaudible) calculation is like $12,500 is what the court okayed.
Now, I think that given the difficulty and the fact ultimately some additional funds over and above what was initially authorized makes sense, but nowhere near the [$]110[,000 plus] that you've already, I guess, received.
And I have to agree, it is somewhat unusual in the context of someone that's being brought before the court for concerns about exploitation to be ...

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