In Matter of Rizzo, the son of an adjudicated incapacitated person appealed from a Chancery Division, Probate Part, Bergen County order that had made the son contingently liable for the legal fees incurred by the court-appointed counsel for the incapacitated person during the guardianship proceedings. The father/ward had no liquid assets; his only asset was the equity in his home (where he and his son resided); his only income was Social Security.
During the course of the guardianship, there had been questions as to the son’s actions as the father’s agent under a power of attorney, but the chancery court ultimately had made no finding of wrongdoing by the son. However, it entered an order approving the court-appointed counsel’s fees, and then ordered that the ward’s son would be personally liable for those fees if the incapacitated person’s estate was insufficient to satisfy that fee. The lower court had relied upon R. 4:86-4, which states that “The compensation of … appointed counsel … may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct.” (Emphasis supplied).
The ward’s son appealed the order imposing personal liability on him for the court-appointed attorney’s fees. However, during the pendency of the appeal, the father died, leaving equity in the home from which the attorney’s fees could be satisfied. Consequently, the Appellate Division dismissed the appeal as moot, thereby effectively leaving the Chancery Division order undisturbed.