371 P.3d 614
Alaska2016Background
- Jean, a 92-year-old with dementia, lived with daughter Sidney (caregiver); other children alleged Sidney financially exploited Jean.
- Shelley (one sibling) filed a conservatorship petition; the Office of Public Advocacy (OPA) filed an ex parte elder-fraud protective-order petition under AS 13.26.207-.209 based on a records review and family interviews.
- The superior court denied the 20-day ex parte petition for lack of probable cause, converted/continued the matter toward a temporary protective order, and later denied the elder-fraud protective petition after an evidentiary hearing.
- Sidney and Jean (estate) sought attorney’s fees against OPA: the court awarded fees for the elder-fraud protective-order proceeding under AS 13.26.131(d) but denied fees for the separate conservatorship proceeding because OPA had not “initiated” it.
- On appeal, the Alaska Supreme Court held that AS 13.26.131(d) and Civil Rule 82 do not apply to elder-fraud protective-order proceedings; instead AS 44.21.415 governs cost recovery for the Office and does not permit private parties to recover fees from the State. The court therefore vacated the fee award for the elder-fraud petition and affirmed denial of fees in the conservatorship matter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AS 13.26.131(d) or Civil Rule 82 authorizes fee awards against OPA in elder-fraud protective-order proceedings | Jean/Sidney: AS 13.26.131(d) or Rule 82 permits shifting fees to OPA because proceedings fall under chapter 13.26 | OPA: Elder-fraud proceedings are governed by AS 44.21.415 cost‑recovery scheme, not AS 13.26.131 or Rule 82 | AS 44.21.415 applies and displaces Rule 82; AS 13.26.131(d) does not apply to elder-fraud protective orders; private parties cannot recover fees from OPA under those provisions |
| Whether AS 44.21.415 allows private parties to recover fees from OPA when OPA does not prevail | Jean/Sidney: the statute shouldn’t preclude fee awards against OPA — unfair to victims who win or are vindicated | OPA: statute provides a one‑way cost‑recovery (Office may recover from defendant or client if Office prevails) and contains no mechanism for awarding fees against the Office | AS 44.21.415 sets a one‑way cost‑recovery scheme favoring the Office; it does not authorize awarding attorney’s fees against OPA when OPA loses |
| Whether AS 13.26.131(d) authorizes fees for conduct in the conservatorship proceeding where OPA participated | Jean/Sidney: OPA continued litigation in bad faith and should be charged under AS 13.26.131(d) | OPA: it did not initiate the conservatorship proceeding (Shelley did); AS 13.26.131(d) applies only to the initiator | AS 13.26.131(d) applies to guardianship/conservatorship but permits fees only against the party who initiated a malicious/frivolous proceeding; OPA did not initiate Shelley’s conservatorship, so fees unavailable against OPA |
| Whether AS 13.26.353(c) (power-of-attorney statute) authorizes fee shifting against OPA | Jean/Sidney: AS 13.26.353(c) supports fee recovery for failure to honor power of attorney | OPA: AS 13.26.353(c) is a cause of action against third parties for failing to honor a POA, not a fee-shifting vehicle against the State | Court: AS 13.26.353(c) is not a fee-shifting statute applicable to OPA in this context |
Key Cases Cited
- In re Protective Proceedings of Vernon H., 332 P.3d 565 (Alaska 2014) (AS 13.26.131(d) displaces Civil Rule 82 in guardianship and conservatorship proceedings)
- Foster v. Prof’l Guardian Servs. Corp., 258 P.3d 102 (Alaska 2011) (standard of review for fee-award reasonableness)
- Premera Blue Cross v. State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins., 171 P.3d 1110 (Alaska 2007) (statutory interpretation and avoiding absurd results)
- Wetherhorn v. Alaska Psychiatric Inst., 167 P.3d 701 (Alaska 2007) (declining attorney’s fees in quasi‑prosecutorial protective contexts to avoid chilling public‑interest prosecutions)