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DSS Wins Fees in Guardian Cases

Deborah Elkins//January 17, 2013

DSS Wins Fees in Guardian Cases

Deborah Elkins//January 17, 2013//

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In light of the Salem Circuit Court’s separate appointments of a guardian and conservator for an elderly husband and wife, after their daughter, a physician licensed in another state, unlawfully dispensed medications to the mother, appeared abusive to her father, and was barred from each parent’s nursing home, the court awards $4,370 in attorney’s fees to the county attorney’s office, which “went far beyond what is normally required of their office” in protecting the well-being and assets of these elderly citizens.

The county Department of Social Services alleged the daughter gave her mother invasive medical exams and totally disrupted the nursing home facility by her angry and vociferous outbursts. She ultimately was barred from the nursing home under threat of arrest for trespass.

The court initially appointed a local lawyer as guardian and conservator for the mother. After having observed father and daughter interact at a face-to-face meeting, mother’s guardian called the police for assistance, fearing abuse of the elderly father at the hands of the daughter. On a petition by DSS, the same local lawyer was appointed guardian and conservator for the father, as the lawyer was familiar with the constantly changing situation and with the controversies among the various family members. The elderly father was placed in a different nursing home and, in short order, the daughter was barred from that nursing home as well.

The county attorney, representing DSS throughout the entirety of these cases, managed to maintain stability, coherence and kept the court aware of the actual facts of the case, despite the allegations of the daughter. She argued that Va. Code § 64.2-2008 does not authorize the court to grant attorney’s fees to the county, but only allows reimbursement of the initial filing fee and the costs of service of process.

A plain reading of Code § 64.2-2008 does not support the argument limiting the reimbursement to filing fees and service fees. If the phrase “all costs and fees” were intended to mean only the nominal costs of filing and service, then the word “all” would be meaningless. The court finds that Code § 64.2-2008 includes reasonable attorney’s fees and necessary costs in the phrase, “all costs and fees.”

Having reviewed the county’s time records for these protracted cases, the court approves an award of fees and costs to the county DSS/county attorney’s office of $4,370.76.

Earl v. Boise (Doherty) No. CL 12-257, Jan. 14, 2013; Salem Cir.Ct.; Ruth E. Kuhnel, Roanoke County DSS; Ronnie L. Clay, James T. Jordan, Terry N. Grimes for the parties. VLW 013-8-007, 3 pp.

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