Can You Recover Attorney's Fees in a NC Guardianship Case?
The Short Answer
It depends — on whether a guardian of the estate is appointed, whether the ward has assets, and how the court exercises its discretion. In NC, attorney's fees in guardianship cases are not automatically awarded to the petitioner just because they win. But there are legitimate paths to fee recovery that every petitioner should understand from the start.
How Attorney's Fees Work in NC Guardianship — The Basic Framework
NC guardianship law (G.S. Chapter 35A) does not contain a broad fee-shifting provision like some areas of law. There is no rule that the "loser pays" in a guardianship case. Instead, fees are handled through a few distinct mechanisms.
Fees Paid From the Ward's Estate
Once a guardian of the estate is appointed, the guardian has authority to pay reasonable expenses of the guardianship from the ward's assets — including attorney's fees incurred in establishing the guardianship. Under G.S. 35A-1251, the guardian of the estate may pay claims against the ward's estate, and courts have routinely approved payment of attorney's fees for the guardianship proceeding from estate assets.
This means: if the ward has assets, the cost of establishing guardianship may ultimately come from those assets — not permanently from the petitioner's pocket. You advance the fees, the guardian is appointed, and the guardian (which may be you) pays the fees from the estate.
If you are appointed guardian of the estate, you will need court approval to pay attorney's fees from estate assets. This is a routine request, typically approved without a hearing, as long as the fees are reasonable.
Court's Discretion Under G.S. 35A-1116
G.S. 35A-1116 gives the court authority to tax costs as it deems just. Courts have occasionally used this provision to award attorney's fees against a party who acted in bad faith, filed a frivolous objection, or prolonged the proceeding unnecessarily.
This provision is not a general fee-shifting rule — it is an equitable safety valve. Courts are reluctant to use it as a routine matter. But if an opposing party (such as a current POA agent or a family member who contested the guardianship) acted in bad faith and drove up costs, it is worth raising with the court.
NC General Statutes § 6-21.5 — Frivolous Claims
If a party files a pleading that is frivolous or malicious, G.S. 6-21.5 authorizes the court to award attorney's fees to the prevailing party. This provision can apply in guardianship proceedings if an opposing party's contest is found to be without merit and filed for improper purposes.
What "The Ward Has No Assets" Means for Fees
If the respondent has no assets — or very limited assets — there is generally no estate to pay attorney's fees from, and the court has less basis for directing payment from any other source. In low-asset cases:
- The petitioner typically pays their own attorney's fees
- Legal Aid of NC may be able to help qualifying petitioners (legalaidnc.org)
- Some elder law attorneys offer limited-scope representation for portions of the proceeding
This is a real constraint. It is worth discussing with an attorney before you file.
What to Do From the Start to Preserve Fee Recovery Options
Even if you are not sure whether you will recover fees, you can take steps now to preserve the possibility.
Document everything. Keep invoices for all legal work, organized by date and task. Courts reviewing fee requests look for reasonable, itemized billing — not a lump sum.
Track how the respondent's condition, assets, and the opposing party's conduct develop. If the petition becomes contested and the contest is frivolous, document every pleading, delay, and bad-faith maneuver. This builds the record for a later fee request.
Ask your attorney about a fee petition. If guardianship is granted and there are estate assets, your attorney should file a motion for approval of attorney's fees early — before the estate is depleted for other purposes.
If you are seeking appointment as guardian of the estate, include a line in your petition about anticipated attorney's fees and your intent to seek court approval to pay them from estate assets. This puts the issue on the court's radar from the start.
A Note on Guardian Compensation
Separate from attorney's fees, a guardian of the estate is entitled to reasonable compensation for their services. Under G.S. 35A-1269, a guardian may receive compensation from the ward's estate, subject to court approval. If you are serving as guardian and also incurring significant personal time on the ward's affairs, this is a separate avenue worth raising with the court.
The information on this page is for educational purposes only and does not constitute legal advice. Learn more about ElderAdvocate.law.