Alaska Office of Public Advocacy v. Estate of Jean R.
The State Office of Public Advocacy (OPA) filed a petition for an ex parte protective order on behalf of an elderly woman against her adult daughter and caregiver, after receiving allegations of financial abuse made by the elderly woman’s other family members. The superior court found those allegations to be unfounded and denied the protective order. The elderly woman’s estate and the caregiver daughter sought attorney’s fees against the State in connection with both the protective order and conservatorship proceedings. The superior court awarded full reasonable fees arising from the denial of the protective order, finding that OPA’s protective order petition was brought without “just cause,” under the fee-shifting provision of AS 13.26.131(d). The superior court declined to award attorney’s fees arising from the proceeding to establish a conservatorship because the State had not “initiated” the conservatorship proceeding as required for fees under AS 13.26.131(d). The State appealed the first award, and the caregiver daughter and the estate of the woman cross-appealed the denial of the second award. After review, the Alaska Supreme Court concluded that AS 13.26.131 did not apply to elder fraud protective order proceedings; nor did Alaska Civil Rule 82. Instead, AS 44.21.415 contained a cost-recovery mechanism that allowed private parties to recover attorney’s fees against the State in such proceedings. So the Supreme Court vacated the superior court’s fee award in the elder fraud protective order proceeding. And because the State did not initiate the conservatorship proceeding here, no attorney’s fees are available against the State in that proceeding. View "Alaska Office of Public Advocacy v. Estate of Jean R." on Justia Law