(a) COMPENSATION FOR ORDINARY SERVICES. Compensation to a guardian for ordinary services is by commission. A commission must not exceed 5% of amounts disbursed from the estate. Ordinary services are those normally performed by a fiduciary in administering such an estate and include the following: (1) qualification as the guardian;(2) collection of the minor's assets and income;(3) payment of the minor's debts and costs of maintenance, as authorized or ratified by the court;(4) general supervision of the minor's investments and policy relating to investments, including safekeeping; and(5) preparation and filing of all inventories, accounts, and reports to the court.(b) TIME AND METHOD FOR CLAIMING COMPENSATION FOR ORDINARY SERVICES. A guardian must submit a claim for commission for ordinary services in the annual account. The amount and percentage of commission claimed must be reflected in the account. Except as otherwise provided by these rules or court order, no separate statement of services is required.(c) COMPENSATION FOR EXTRAORDINARY SERVICES. At the time of filing an annual account or at any other time on good cause, a guardian may petition the court for compensation for extraordinary services rendered. Extraordinary services are in addition to those services set out in Rule 508(a). The petition must include the following: (1) a statement of jurisdiction and controlling court rule;(2) a statement of services rendered sufficient to establish that the requested payment is reasonable and, if appropriate, that the services are in fact extraordinary;(3) the amount of time spent and the normal hourly rate of the guardian, if any;(4) evidence of the necessity or purpose of the services;(5) the results achieved, including the benefit to the estate or minor, if any;(6) statement of all prior allowances from the estate to the guardian or other fiduciary or counsel, to the extent known;(7) the ability of the estate to meet future needs of the minor and to compensate fairly the guardian; and(8) a statement that notice of the petition has been given and to whom given.(d) TURNOVER COMMISSION. In a guardian's final account, the guardian may claim a commission for turning over the assets to a successor fiduciary or to the former minor. A turnover commission may not exceed 5% of the net assets to be turned over. A turnover commission is in addition to the commission for ordinary services based on disbursements actually made during the accounting period. The amount and percentage claimed must be reflected in the final account. Except as otherwise provided by these rules or court order, no separate statement of services is required. (1)The Guardian's Death, Resignation, or Incapacity. If the guardian dies, resigns, or becomes incapacitated, the guardian or guardian's representative must file a statement of services in support of the turnover commission claimed. The statement must indicate:(A) what the guardian has done;(B) if applicable, what remains to be done by the successor guardian; and(C) any other information justifying the commission claimed.(2)The Minor's Death or Attainment of Majority. If the minor attains the age of majority within 3 years after the guardian's appointment and the net assets to be turned over exceed $100,000.00, the guardian must either: (A) file a statement of services in support of the turnover commission claimed; or(B) apply for a waiver of the requirement for a statement of services by filing a written request with the court.(e) COMPENSATION TO ATTORNEYS. (1)In General. At the time of the filing of an annual account or at any other time on good cause, an attorney may petition for allowance of reasonable attorney's fees for preparing pleadings filed with the court and for other necessary legal services rendered to the guardian in the administration of the estate, including: (A) instructing and advising the guardian in regard to applicable laws so that the guardian may properly administer the estate for which he or she is responsible; and(B) reviewing and advising with respect to inventories, accounts, and other reports to the court to assure that they comply with the requirements of the law.(2)Qualification of the Guardian. At any time, an attorney may petition for fees for legal services in connection with the qualification of the guardian. The petition for fees must be accompanied by a statement of services that addresses those matters required to be addressed in a petition for compensation for extraordinary services.(3)Performance of Guardian's Ordinary Services; Assignment of Commission. If an attorney performs any ordinary services described in Rule 508(a) and the guardian has filed a written assignment of all or part of the guardian's commission, the court may authorize the attorney to be compensated from the estate in the guardianship proceeding. An assignment of commission refers to those instances in which an attorney: (A) pursuant to an agreement with the guardian, has performed some or all of the services normally expected to be performed by the guardian in administering the estate; and(B) has obtained an assignment from or written consent of the guardian to receive all or part of the guardian's commission as compensation for the attorney's services.(f) NOTICE OF AND CONSENTS TO PETITIONS FOR COMPENSATION FOR EXTRAORDINARY SERVICES OR FOR ATTORNEY FEES. (1)Notice of Petition. A petition for compensation for extraordinary services or for attorney's fees (other than for ordinary commissions) must be accompanied by a notice on the form maintained by the Register of Wills or a form that is substantially similar in format and content. A copy of the petition and notice must be served on the following individuals by first class mail within 7 days after filing: (A) the guardian (if appropriate); and(B) to all other parties and affected persons as determined by the court.(2)Certificate of Service. The petition must include a certification that a copy of the petition and notice were served as required by Rule 508(f)(1).(3)Consent. An individual who is required to be served with the petition and notice may file a consent to the petition. A consent must be on the form maintained by the Register of Wills or a form that is substantially similar in format and content. Once filed, a consent constitutes a waiver of the right to object to the petition.(g) REFERENCE TO REGISTER OF WILLS OF PETITION FOR COMPENSATION FOR EXTRAORDINARY SERVICES OR FOR ATTORNEY FEES. All petitions for compensation for extraordinary services or for attorney's fees must be referred to the Register of Wills for appropriate recommendations.(h) ADDITIONAL DOCUMENTATION. The court may require additional documentation in determining an appropriate commission in any particular case.(i) OBJECTIONS TO PETITION FOR COMPENSATION. Parties and affected persons may file an objection to a petition for compensation for extraordinary services or for attorney's fees. The objection must be filed within 21 days after mailing of the petition and notice and must include specific statements of the grounds for contesting the petition. The objection must be mailed to the guardian and the guardian's attorney. If an objection is not filed within the prescribed time, the court may treat the petition as conceded.Adopted by Order dated March 4, 2022, effective 8/22/2022.COMMENT
Generally, the preparation and filing of routine tax returns and accountings are considered to be ordinary services. If the services involved were in whole or in part extraordinary, compensation for such services may be claimed by petition pursuant to subsection (c) of this rule. If the guardian retains the services of a tax preparer, payment of the tax preparer's fee may be made subject to the requirement that expenditures be made only upon prior authorization of the court.
The court is cautious in awarding turnover commissions claimed under subsection (d)(1) of this rule, by reason of the death, resignation or incapacity of a guardian. The court will take into account the fact that the ward's funds will be disbursed again and will reserve a sufficient portion of the commission as is likely, under the facts and circumstances of the particular case, to compensate the successor guardian fairly.
With respect to compensation for extraordinary services under this rule, the amount of commission for ordinary services is taken into account, but is not the sole determining factor.
Payments for attorney fees are independent of the guardian's commission for ordinary and extraordinary services and are designed to compensate the attorney for legal services consistent with the value of the services rendered and ability of the estate to pay. The fact that the guardian is an attorney will not preclude the guardian from petitioning for attorney fees for legal services rendered.