Opinion
No. 18114
Decided March 15, 1967.
Guardian and ward — Compensation — Failure to take — Filing of several accounts — Later application for compensation for services during preceding years — Statute of limitations — Waiver — Court determination prerequisite to payment — Effect.
1. Since a guardian is entitled to no compensation for services as such until it is approved by the court, failure to apply for any such payment during several accounting periods does not result in a bar to its later payment, upon proper application, either by virtue of a waiver or by operation of a statute of limitations.
2. Fees for legal services performed for the purpose of obtaining payment to the person serving as guardian of the compensation due for services performed in that capacity may not be charged to the guardianship funds, since it is beneficial to neither the ward nor his trust estate.
Messrs. Bennett Bennett, for the Guardian.
Mr. Lester Gottlieb, for the Veterans Administration.
Guardian's application for authority to expend funds has four aspects, two of which are conceded. The Veterans' Administration, which is involved in this case by virtue of the provisions of Chapter 5905, Revised Code, questions the other two concerning guardian's compensation and attorney fees.
The facts, as found by the court, reveal that this guardianship was established on January 25, 1954. During the intervening years the guardian has filed twelve annual accounts as required by Section 5905.11, Revised Code. While, under the provisions of Section 5905.13, Revised Code, she was entitled to compensation for being guardian not to exceed five per cent of the amount of moneys received during the period covered by the account, in order to preserve a working balance of funds in the guardianship, on eight of these accounts she took no compensation at all, on three of them she paid herself compensation at an amount somewhat less than that to which she might have been entitled. On the remaining account, while she paid herself compensation in excess of that which would have been authorized during that particular accounting period, the amount taken was considerably less than that which had accumulated, if any did accumulate. A substantial balance having accumulated in these guardianship funds, the guardian now seeks authority to pay to herself that compensation which she claims has accrued to her.
The Veterans' Administration contests the allowance of accrued compensation on three grounds: First, that the calculation of such compensation back to 1954 is barred by the statute of limitation, and the court therefore should not go back more than six years; secondly, that in order now to pick up compensation not paid on previous accounts, those previous accounts which have all been duly approved would have to be reopened, and that another statute of limitations bars the reopening of approved accounts; thirdly, that by her failure to take compensation on previous accountings, the guardian may be deemed to have waived her right to receive it as to those previously approved accounts, particularly when it is considered that the ward is her husband and she has been living in the ward's property and has been receiving an allowance from the ward's funds over the years in which this guardianship has been effective.
Counsel for the Veterans' Administration cited no cases to support his first and third contentions. The case of Eckhart v. Wiles, 61 Ohio App. 32, 15 O. O. 61, 22 N.E.2d 289, was cited to support his second proposition, but that case is not in point. There, the final account of the fiduciary in question had been settled, and an attempt was made to reopen it to obtain payment of an alleged claim which was denied. In Eckhart the claimant was not the fiduciary, as in the case at bar. Further, the trust there had been terminated by the settling of the final account: the trust here is still active.
The claim of the guardian here is not barred by any statute of limitations. She is not a creditor of her trust estate. She is not entitled to any compensation until the Probate Court determines the amount thereof. Section 5905.13 of the Veterans' Guardianship Law must be read in pari materia with Section 2109.23, Revised Code, the former section providing that "Compensation * * * shall not exceed five per cent * * *" etc., with the latter section providing that "* * * the probate court shall make allowance to fiduciaries for their services * * *" etc. Since the guardian might be authorized less compensation than the maximum five per cent, a probate court determination under Section 2109.23, Revised Code, is necessary. The amount the guardian paid herself as compensation on four of her twelve accounts, was approved when the probate court approved the settlement of the account which reflected the payment.
Since the guardian was not entitled to any compensation until the court determined the amount thereof, there can also be no question here about opening previous accounts or of waiver of right to receive compensation. See Veterans' Administration v. Hudson, 169 Md. 141, 179 A. 836, which provides that a guardian who files periodic accounts without claiming the ordinary compensation may, in a subsequent account, claim compensation for past years.
Also, see Scattergood v. Ingram, 86 Ohio St. 76, 98 N.E. 923, which holds that the doctrine of Hinkle v. Sage, 67 Ohio St. 256, does not apply in the case of a guardianship, so that the relationship of the guardian to the ward is immaterial insofar as the guardian's right to compensation is concerned.
In this case the court has no hesitancy in approving compensation for the guardian in an amount equal to five per cent of the income she has received from the Veterans' Administration. The testimony amply supports a finding that this guardian has performed her duties exceedingly well, to the extent that during her tenure the value of the ward's real property has doubled. An examination of the twelve accounts heretofore filed indicates that she has received the total sum of $39,589.30 from the Veterans' Administration. Five per cent of this figure is $1,979.46. In these accounts she took compensation in the total amount of $625.00, leaving a balance due her in the amount of $1,354.46 insofar as Veterans' Administration Funds are concerned. In addition, this guardian has received and administered funds received from other sources, principally from Social Security payments. On these funds her compensation, calculated in the manner usually employed by this court in similar cases, is $343.95. The court will therefore authorize compensation to the guardian in the total amount of $1,698.41, to cover her services during her first twelve accounting periods.
As to the attorney fees for which the guardian may be permitted to take credit, her counsel testified as to the work he performed, the amount of time he spent in connection therewith, and also testified professionaly as to the reasonable value of these services. Counsel for the Veterans' Administration did not question either the services performed or the estimated value of them, but did object to the inclusion in the overall picture of the time and effort spent on behalf of the guardian as an individual to obtain compensation for her. Attorney fees for which a guardian may take credit should bear reasonable relationship to what is beneficial to the ward personally, or to his trust estate. In re Lloyd, 32 O. O. 2d 128, 193 N.E.2d 377. Counsel's efforts to obtain personal compensation for the guardian are neither beneficial to the ward nor to his trust estate, and to that extent the Veterans' Administration's objections are well taken.
At the hearing counsel for the guardian did not break down either the time or the value of the services he rendered on individual items connected with the administration of this guardianship, although his testimony did indicate that some of the services he rendered were in connection with obtaining compensation for the guardian. If counsel concerned are unable to reach agreement as to what portion of these fees should be paid from guardianship funds, the court will entertain further testimony prior to final entry in this matter.
Judgment accordingly.