Costly settlement has county seeking change in law

Ozaukee County officials plan to push for a change in state law they say might have prevented taxpayers from having to pay hundreds of thousands of dollars in attorney fees over a 2015 guardianship case involving an elderly woman that the county lost.

Last week, the Ozaukee County Board approved a $215,000 settlement with two Milwaukee law firms, both of which were hired by the woman’s son, who contested the county’s case. One firm represented the woman, the other the son.

The total cost to the county will likely be higher when other fees and court costs are accounted for. 

According to an Appeals Court ruling last fall, an elderly woman in the early stages of dementia had assigned power of attorney to her son after taking it away from her daughter, with whom court filings say the son had been at odds. The county argued the woman was not competent to make that decision, had possibly been coerced by her son to do so and sought to appoint a new guardian.

Ozaukee County Circuit Court Judge Joseph Voiland ruled against the county, saying it failed to make its case that the woman was incompetent.

The county also argued the attorney fees approved by Voiland were excessive and that a lower hourly rate should be applied.

But Voiland ruled that according to state law, the county is responsible for any attorney fees if guardianship is not established. If private attorneys are used, the fees should be the rate “customarily charged in the locality,” he ruled.

Consequently, according to a county press release last week announcing the settlement, “that proceeding went from routine to complex” when the son hired the law firms and Voiland concluded that state law “required that if a guardian is not appointed, the county is required to pay for those attorneys’ fees.”

County supervisors last year authorized County Corporation Counsel Rhonda Gordon to appeal the case, which the county also lost. 

This spring, Gordon filed motions over the mounting attorney fees and sought to have the case transferred to another judge.

With the prospect of even more fees accumulating, the county agreed to the settlement, which would “release the county from all future claims” in the case and put an end to the appeals.

In the press release, County Administrator Jason Dzwinel said: 

“The board was not happy being forced to pay these claims but the system created by the Legislature leaves counties vulnerable to liability. 

“The county will work with the Legislature to seek a solution that allows us to fulfill our duty to protect vulnerable adults and clarify the statutes to limit this type of liability in the future.” 

In an email, Gordon said she “does not believe that the Legislature ever intended for counties to pay substantial private attorney fee awards when acting consistent with the statutory mandate that counties file guardianship and protective placement petitions to protect incompetent individuals.

“We are hoping to prevent the re-occurrence of another situation as this one,” Gordon said.

In a letter to legislators, Gordon said the law should be amended to make clear that if a proposed ward of the county, in this case the woman, chooses a private attorney instead of a public defender, the county should not be liable to pay the private attorney rate.

She also argues in her letter that Voiland “broadly interpreted” state law to require the county to also pay the attorney fees for the son, whom Gordon referred to as “an interested party” whose “actions were the reason that the county filed the guardianship petition.” 

The son’s attorney was hired to represent him in his capacity as his mother’s “agent,” Gordon said.  The son was, in effect, “double-dipping” since the woman’s interests were already protected by her attorney, she argues.

“There is no need for two attorneys to burden (the woman’s) estate to perform the same function,” Gordon wrote.

State Rep. Rob Brooks, R-Saukville, said his office had received Gordon’s letter “and we’re working to see what we can get done.”

Brooks, a former Ozaukee County Board chairman, declined to comment on the specifics of the issue.

“But, clearly, we wouldn’t be looking at potential legislation if there wasn’t a concern,” he said.