STATE OF ALASKA, OFFICE OF PUBLIC ADVOCACY, OFFICE OF ELDER FRAUD & ASSISTANCE, Appellant and Cross-Appellee,
ESTATE OF JEAN R., Deceased, and SIDNEY F., Appellees and Cross-Appellants.
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Philip M. Pallenberg, Judge. Superior Court No. 1JU-12-00179 PR
Ruth Botstein and Dario Borghesan, Assistant Attorneys General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellant/Cross-Appellee.
Robert S. Spitzfaden, Gruening & Spitzfaden, APC, Juneau, for Appellees/Cross-Appellants. Deborah A. Holbrook, Juneau, Co-Counsel for Appellee/Cross-Appellant Sidney F.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
FABE, CHIEF JUSTICE.
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 other daughter had previously initiated a conservatorship proceeding, in which the State then participated - in support of the conservatorship - after the denial of the protective order. Ultimately the conservatorship case was settled through mediation. 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 appeals the first award, and the caregiver daughter and the estate of the woman, who is now deceased, cross-appeal the denial of the second award.
But we conclude that AS 13.26.131 does not apply to elder fraud protective order proceedings; nor does Alaska Civil Rule 82 apply. Instead, AS 44.21.415 sets up a cost-recovery mechanism that does not allow private parties to recover attorney's fees against the State in such proceedings. So we vacate 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. We therefore affirm the superior court's denial of fees in connection with the conservatorship proceeding.
II. FACTS AND PROCEEDINGS
When this case first arose in 2012, 92-year-old Jean R. lived in Juneau with her 55-year-old daughter Sidney F., who served as her caregiver. Sidney had moved from Anchorage to Juneau in 2004 to care for her mother and father. In 2009 her parents requested that Sidney quit her job to provide full-time care, and Sidney did so in April 2010. Later that year Jean was diagnosed with dementia, and in October 2010 Jean's husband (Sidney's father) died. Sidney continued to live with her mother full time, providing care and holding a power of attorney authorizing her to manage all of Jean's personal affairs. This case arises out of allegations about Sidney's expenditures raised by two of Jean's other children, Shelley and Geoffrey, who lived outside of Alaska.
In July 2012 Shelley petitioned to establish a conservatorship for her mother, alleging that Sidney was wasting and dissipating Jean's money and assets without benefit to Jean, and that Sidney was financially exploiting Jean. Shelley sought "a third party to serve as a full guardian with the powers of a conservator to protect the rights and well-being of [Jean]." Through this action the Office of Elder Fraud and Assistance, a section of OPA, learned of Shelley's allegations about Sidney's conduct.
In August 2012 OPA filed an ex parte petition for an elder fraud protective order under AS 13.26.207-.208 to protect Jean from alleged financial abuse by Sidney. Prior to filing the petition, OPA examined Jean's bank records and other financial documents, which largely correlated with the allegations made by Shelley. OPA also interviewed Shelley and Geoffrey. But OPA evidently did not interview Sidney or Jean, even though it knew that they were both already aware of the allegations of fraud because similar allegations had been made in Shelley's conservatorship petition.
In its petition OPA asserted that ownership of Jean's home had been transferred to Sidney; that Jean's bank accounts had been overdrawn by $2, 623 between January and August of 2012; that large expenditures had been made for the sole benefit of Sidney, including airline tickets to Seattle and Minnesota, supplies used to repair a trailer for Sidney's boyfriend, and veterinarian bills for Sidney's pet; and that Sidney had generated "inordinately high" grocery bills. OPA estimated the value at risk to be $54, 000 per year and declared the risk to be "immediate or urgent, " citing recent overdrafts and checks made out to Sidney from Jean's bank account totaling $1, 500. OPA requested that the court limit Sidney's powers of attorney to medical decisions; that housing decisions be shared between Sidney, Shelley, and Geoffrey; and that a temporary six-month conservatorship be established to handle all financial matters following the initial 20-day ex parte protective period.
Jean received a copy of OPA's protective order petition the day after it was filed, and she quickly filed a brief opposing the petition. She explained that the home had been deeded to Sidney in order to help secure additional government assistance for Jean in her old age. She also "dispute[d] the factual basis" of the allegations relating to the airplane tickets, trailer repair, and veterinarian bills. She maintained that she was "well taken care of" and that no financial abuse had taken place.
The superior court denied the ex parte petition three days after it was filed. The court briefly explained that it reached this decision because it "d[id] not find that there ha[d] been a showing of probable cause" demonstrating that an ex parte order was necessary to prevent fraud by Sidney against Jean. But the superior court indicated that it would convert OPA's ex parte petition into a petition for a six-month protective order under AS 13.26.208. So OPA continued to proceed with this petition for a six-month protective order, even after the court's denial of the ex parte petition.
The superior court consolidated OPA's ongoing protective order petition and the earlier conservatorship petition filed by Shelley, and it scheduled an evidentiary hearing in September 2012. At that hearing, the court heard testimony that the home was transferred on advice of counsel; that the alleged flight to Minnesota by Sidney and her boyfriend was in fact a trip to Juneau that Shelley took to help care for Jean; that Sidney had reimbursed money to her mother's account for a flight she had taken to Seattle to obtain medical treatment; and that the money spent on Sidney's boyfriend's trailer was actually compensation in exchange for re-roofing and painting Jean's house. The court also heard testimony from Sidney explaining that the money she spent and the checks she drew from Jean's account were compensation under an agreement reached between Sidney and her parents before Sidney quit her job and became their full-time caregiver.
At the end of the hearing, the superior court entered an oral order denying OPA's petition for an elder fraud protective order. The court credited Jean's and Sidney's explanations for the expenditures OPA had challenged, explaining that it found Jean's and Sidney's testimony more credible than the testimony from Jean's other children and OPA's staff. The superior court thus found that OPA had failed to demonstrate fraud by a preponderance of the evidence and had not made "any showing that there [had] been fraud in this case." The court allowed that a more formalized compensation arrangement might have been better but noted that it did not find the current arrangement to be exploitation, and that it was hard to understand "how one gets to [the] place where it is felt to be exploitation." The superior court therefore denied OPA's petition for an elder fraud protective order. The court allowed litigation of the conservatorship issue to continue, however.
After the superior court's ruling, Sidney filed a motion seeking an award of $14, 025 for attorney's fees and costs against OPA. Jean moved for a separate attorney's fees award against OPA for $8, 607.75. Sidney alleged that a fee award was justified under Alaska Civil Rule 82, the standard fee-shifting scheme for civil cases; AS 13.26.131, the fee-shifting statute for guardianship and conservatorship cases; or AS 13.26.353(c), which provides a cause of action for failure to honor a power of attorney. Jean asserted that AS 13.26.131 was not applicable but that an award was justified ...