## Facts

- Carl Herke petitioned for appointment of a guardian for his 78-year-old wife, Helen Pauline Herke.
- The superior court appointed attorney Robert W. Inouye as guardian ad litem to investigate, report to the court, and represent Helen’s best interests during the proceeding.
- During the litigation, the court entered an order restraining Carl and the couple’s children from discussing the guardianship with Helen and from attempting to influence her property decisions or interfere with her medical care.
- Helen strongly opposed the guardianship and hired Gary Sanderson of Halverson & Applegate, P.S., to represent her position.
- Helen told Sanderson she wanted to contest the guardianship fully; she also stated that if a guardian were appointed, she preferred either her daughter Joyce Johnson or her sister, Julia Decoto.
- Sanderson warned Helen in writing that the case could be lengthy and expensive and that attorney fees on both sides could be large; Helen chose to proceed.
- The litigation lasted about three years and became highly contentious because of family conflict; it also expanded into related dissolution proceedings, mediation, and an unsuccessful attempt at binding arbitration.
- At the end of the guardianship dispute, the court appointed Julia Decoto as Helen’s guardian, with some oversight by Helen’s daughter Mary Jane Craigen.
- Carl died about a week after the litigation ended, and Craigen became the personal representative of his estate.
- Halverson & Applegate filed claims against both Helen’s guardianship estate and Carl’s estate for $84,490 in attorney fees and costs incurred while representing Helen.
- Decoto, as guardian controlling Helen’s guardianship estate, viewed the requested fees as appropriate; Craigen opposed them, arguing Sanderson’s approach prolonged the case and that a reasonable fee would be about $5,000.
- The trial court awarded approximately $55,000 in fees and costs, ordered payment from Helen’s guardianship estate, and required Carl’s estate to reimburse the guardianship estate for one-half.
- Craigen (and Joseph P. Herke) appealed the amount of the award and the allocation between the two estates.

## Issues

1. Whether the trial court abused its discretion in awarding approximately $55,000 in attorney fees and costs to Halverson & Applegate for representing Helen in the contested guardianship proceedings.
2. Whether the trial court abused its discretion by ordering the fees paid from Helen’s guardianship estate with Carl’s estate reimbursing one-half.

## Decision

- The Court of Appeals of Washington, Division Three, affirmed the superior court’s fee award.
- The court upheld the trial court’s determination that the fees were reasonable in light of the length, scope, and contentious nature of the litigation and the work performed.
- The court affirmed the trial court’s allocation requiring payment from Helen’s guardianship estate with reimbursement of half by Carl’s estate.

## Legal Principles

- Attorney-fee awards in guardianship and related proceedings are reviewed for abuse of discretion; an appellate court will not substitute its judgment for the trial court’s on reasonableness absent an untenable basis.
- Reasonableness of fees may be assessed using common fee factors, including the time spent, the difficulty of the matter, the results obtained, and counsel’s skill and experience, viewed in the context of the case.
- A client’s informed decision to contest a guardianship, after being warned about likely expense, supports a trial court’s conclusion that substantial fees were necessary where the dispute was prolonged and hard fought.
- Trial courts have discretion to order payment of fees from a guardianship estate and to apportion responsibility between a guardianship estate and a related probate estate when the circumstances justify sharing the financial burden.

## Conclusion

The Court of Appeals affirmed the superior court’s approximately $55,000 attorney-fee award to Halverson & Applegate for representing Helen Herke in a three-year, contentious guardianship dispute and upheld the order requiring Helen’s guardianship estate to pay the fees with Carl Herke’s estate reimbursing one-half.


In re Guardianship of Herke, 93 Wash. App. 1054 (1999)