Dawn E. Whiting (guardian), the former guardian over the estate of Alden F. (ward), appeals the trial court's order on her request for approval of guardianship fees and attorney's fees, arguing that the court erred in its determination of reasonable fees for her services and the services of her attorneys. She also argues that the court erred as a matter of law in determining that attorney's fees incurred to initiate an action for breach of fiduciary duties pursuant to RSA 506:7 (2010) are not payable from the ward's estate. We vacate and remand.
Our standard for reviewing a decision of the probate division is set forth by statute. See RSA 567-A:4 (2007). "The findings of fact of the judge of probate are final unless they are so plainly erroneous that such findings could not be reasonably made." Id. Consequently, we will not disturb the probate division's order unless it is unsupported by the evidence or plainly erroneous as a matter of law. See In re Guardianship of Domey, 157 N.H. 775, 778 (2008).
Pursuant to RSA 464-A:23 (2004):
Every guardian shall be allowed a reasonable compensation for all proper expenses and services in the discharge of the guardianship. Administrative expenses approved by the court, including but not limited to guardianship fees, legal fees, and appraisal costs shall be paid out of the estate of the ward as a priority over other debts and obligations of the ward to the extent that funds are available and the needs of the ward are being met. The balance of the account due to the guardian shall be a lien upon all of the estate of the ward, real and personal, not disposed of. After a person ceases to be a guardian, he or she may maintain an action for the recovery of said money owed for expenses and services.
In determining reasonable compensation for fiduciaries, including guardians, the court should consider the size of the estate, the complexity of the estate, and the fiduciary's responsibilities in light of the services rendered, with "the amount dependent upon the labor, risk, responsibility and trouble of each particular case." In re Estate of Rolfe, 136 N.H. 294, 298 (1992) (quotation omitted); see also Prob. Div. R. 88 ("Factors used to determine the reasonableness of a fee may include the time and labor required, the size of the estate, the requisite skill, the customary fee, a fee agreement, the results obtained, time limitations, and the length of the professional relationship.").
In determining the reasonableness of attorney's fees, the court should consider the following non-exclusive list of factors:
(1)The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly.
(2)The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3)The fee customarily charged in the locality for similar legal services.
(4)The amount involved and the results obtained.
(5)The time limitations imposed by the client or by the circumstances.
(6)The nature and length of the professional relationship with the client.
(7)The experience, reputation, and ability of the lawyer or lawyers ...