Is taking fees before a judge approves them legal?

Updated Jan 14, 2016

The attorney for professional guardian Elizabeth Savitt — the wife of a Palm Beach County circuit judge — claims her client is well within her legal rights to take money out of the accounts of seniors in guardianship without a judge’s prior approval.

But local attorneys who practice elder law — as well as the auditor of guardian cases for the Clerk & Comptroller’s Office — say they’ve never seen another professional guardian take retainers or fees without judicial approval.

“I know I’ve never seen that before,” said attorney Michael W. Connors of Juno Beach. “I don’t know what the judge would think about that.”

Savitt is married to Palm Beach County Circuit Judge Martin Colin. Her fees are approved, sometimes after she has taken them from the senior’s account, by Colin’s colleagues who preside over her cases. Savitt’s “wards of the court” are mostly seniors citizens deemed incapacitated because they no longer can care for themselves due to senility or other medical problems.

In three of Savitt’s guardianships, involving Robert Paul Wein, Albert Vassallo Sr. and Lorraine Hilton, family members have complained about her taking tens of thousands of dollars in retainers or fees before a judge approved them.

Florida Statute 744.108 says: “A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.”

The judge is the one who determines what’s reasonable, the law states.

Savitt’s attorney Ellen S. Morris, though, cites subsections of the guardianship law. Florida Statute 744.444 (16) says under the heading of “Power of guardian without court approval”: “Pay or reimburse costs incurred and reasonable fees or compensation to persons, including attorneys, employed by the guardian … from the assets of the guardianship estate, subject to obtaining court approval of the annual accounting.”

However, guardians taking their own fee is not mentioned.

Morris said, “You will not find anything that says guardians need approval to pay their fee.”

Connors said he’s never heard of anyone interpreting these sections of guardianship law as meaning a guardian can take fees from a guardianship account before submitting them for determination by a judge.

“That is an overly expansive interpretation,” he said.

Anthony Palmieri is the senior internal auditor of guardianship cases for the clerk. He has reviewed more than 800 cases and, except for the judge’s wife, has never seen a professional guardian take a retainer or fee before a court has had the chance to approve it.

Attorneys in Miami-Dade and Broward counties say it is verboten by their local courts for guardians to take fees without prior court approval.

The Broward County Guardianship Association states on its website: “The court must approve any fee requested for reimbursement of expenses. You should keep good records of time you spend on guardianship matters. The burden is on you to show you are entitled to the fees you request.”

When Morris was asked about this, she responded in an e-mail: “I can’t answer why an association misquotes the law.”

Fellow respected elder law attorney Scott M. Solkoff of Delray Beach said the short answer is that professional guardians shouldn’t be able to take fees without approval. “Laws are subject to interpretation and it is conceivable that a guardian might argue that court approval is not mandated by statute,” he said. “It is also conceivable, in the right case, that a court might not require it, though this would be a big exception and not the rule.”

Paul Auerbach, an elder law attorney from Palm Beach Gardens, said taking a fee before a court approved it is certainly something he would not advise his guardian clients to do.

“A guardian’s fee is to be determined by the court upon of a proper bill presented,” he said. “I feel that a fee before starting would be frowned upon.”

Boca Raton elder law attorney Michelle Hollister sided with Morris’ interpretation, saying there is no direct prohibition on retainers or taking fees beforehand of money from incapcitated seniors in court-ordered guardianships.

Still, Hollister added, “I require my clients to petition for fees and to receive a court order prior to taking fees,” she said.