                                                                                               FILED
                                                                                          COURT OF APPEALS
                                                                                             DIVISION   tI

                                                                                     2015 JUN 16
                                                                                                 MI 8: 30
    IN THE COURT OF APPEALS OF THE STATE OF WASHi                                                     SHP    TON
                                                                                     By
                                             DIVISION II

 In the Matter of the Guardianship of:                                No. 45465 -3 - II


 KEIKO DECKER,


 An Alleged Incapacitated Person.


                                                                  PUBLISHED OPINION




       WoRSwIcK, J. —         Daniel Quick, former attorney for Keiko Decker, the incapacitated

person in this adult guardianship case, appeals the trial court' s order limiting Quick' s attorney

fees and disgorging fees already paid to him. He argues that the trial court erred by ( 1) entering

orders reducing Quick' s fees without authority to do so, or alternatively by (2) reducing Quick' s

fees without engaging in the proper analysis. Decker' s guardian, Maurice Laufer, requests

attorney fees on appeal under RAP 18. 1 and RCW 11. 96A. 150. We affirm the trial court' s

orders and grant Laufer his requested attorney fees.

                                                    FACTS


        This appeal concerns only the issue of attorney fees in a guardianship case. In February,

2011, the Department of Social and Health Services petitioned for a guardianship over Decker,

an elderly Japanese born woman, alleging she was incapacitated. The petition stated that Decker

had been diagnosed with dementia, had been exhibiting paranoid behavior, and appeared to have

been financially exploited. The Department estimated that Decker' s assets were worth $708, 700.

Accordingly, the trial court' s commissioner appointed a guardian ad litem (GAL) to represent

Decker'   s   best interests in the guardianship   proceedings.
No. 45465 -3 - II



          The GAL told the commissioner that Decker had refused to meet with or cooperate with


him. He petitioned the commissioner to appoint Daniel Quick as Decker' s attorney. Quick

spoke some Japanese and was familiar with Japanese culture. On June 22, the commissioner


signed an order appointing Quick as Decker' s attorney. The order stated that Quick should be

paid at   Decker'   s expense, "    with fees for representation subject to the Court' s approval pursuant


to RCW 11. 92. 180 and SPR 98. 12. " 1 Clerk' s Papers ( CP) at 32. It approved an hourly rate of

 250. 00 per hour and authorized 10 hours of representation. The order further stated that Quick

 shall not spend more        than 10 hours representing Ms. Decker           without prior court approval,"   and




that "[   flees for time   are   limited to 10( TEN) [ sic] hours at the rate of $250. 00 per hour without


further    court order entered      before   incurring the   additional   time."   CP at 32, 33.


           Later, pursuant to the parties' stipulation, the commissioner entered an agreed order


authorizing 40 additional hours for Quick. This order provided that Quick " shall not spend more

                    hours representing Ms. Decker                                              Suppl. CP at 424.
than   forty (40)                                        without prior court approval."




The total amount of court approved time was 50 hours.

           On August 16, Quick petitioned for approval of several documents relating to his

representation of Decker. He requested that the commissioner approve a fee agreement with

Decker that contained no limitation on his time. He also requested prior approval of "reasonable


time spent and costs incurred for taking this matter to trial according to the wishes of the alleged

incapacitated     person."       Suppl. CP at 429. He did not specify a number of additional hours in this




 1 SPR 98. 12 states that attorneys seeking compensation for work in estates cases must definitely
and clearly set forth the amount of compensation claimed. SPR 98. 12 does not affect the issues
in this appeal.




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No. 45465 -3 - II



request. Quick attached a copy of this unsigned, purported fee agreement with Decker. This fee

agreement provided         for    hourly rates   of $250    for Quick, $200 for    associate attorneys, and $     125


for paralegals. The commissioner reserved ruling on these requests without giving any reasons.

The commissioner never approved the requests.


          On December 20, apparently without prior notice to the GAL, Decker filed a durable

power of attorney with the Pierce County Auditor, naming Quick as her attorney -in -fact. The

durable power of attorney provided that Quick " shall have all powers of an absolute owner over

the   assets and    liabilities   of [Decker]."     Suppl. CP      at   470. The document   provided: "   It is the


principal' s intent that the power given to the attorney -in -fact designated herein be interpreted to

be so broad as to obviate the need for the appointment of a guardian for the person or estate of

the   principal."    Suppl. CP      at   473. It named a certified professional guardian, Glenda Voller, as


successor attorney -in -fact to be appointed " only upon the death, disability or incapacity of, or the

written resignation by" Quick. Suppl. CP at 469.

          Decker continued to be uncooperative with the GAL. On May 9, 2012, the GAL filed a

report recommending either appointment of a limited guardian or a less restrictive alternative.

On June 8, the Department moved for dismissal of the guardianship proceedings, arguing that an

alternate arrangement in lieu of a guardianship would suffice. The Department expressed

concerns about        Quick: " Mr.       Quick is acting 'in two, conflicting capacities, both as client (as Ms.

Decker' s attorney -in -fact)        and as   his   own   legal   counsel."   CP at 47. Thus, the Department


suggested that Voller, the successor attorney -in -fact, be appointed attorney -in -fact. It argued that

Decker might receive adequate protection and assistance through a less restrictive alternative

 such as the durable power of attorney, rather than a full guardianship.



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No. 45465 -3 - II



         Decker, through Quick, opposed the Department' s motion to dismiss the guardianship.

She argued that she should be able to defend against being deemed an incapacitated person

through an adversarial process, rather than receive a less restrictive alternative. The

commissioner denied the Department' s motion to dismiss the petition, without giving any

reasons.




         Decker then moved to dismiss the petition for guardianship completely. The

commissioner denied this motion.


         At this time, Decker was 80 years old, had been involved in some recent car accidents,

and had been diagnosed with dementia. Settlement negotiations ensued between the Department

and Decker. Pursuant to these negotiations, Decker approved a proposal that her tax preparer,

Maurice Laufer, should act as her guardian.


         On May 7, 2013, the commissioner entered an order appointing Laufer as guardian of

Decker' s person and estate. The commissioner based her order on the GAL' s written report, a

medical and psychological report, and other documents. The order contained findings of fact and

conclusions of law. The commissioner found that Decker' s durable power of attorney naming

Quick as her attorney -in -fact " is not in effect due to questions of Ms. Decker' s capacity at the

time   she executed   this document,"      that Decker " does not have the current capacity to execute a

power of   attorney instrument     at   this time,"   and that Decker " is capable of managing some

personal and /or financial affairs, but is in need of the protection and assistance of a limited

Guardian" of her person and estate. CP at 86. It ruled that Decker " is an Incapacitated Person

within   the meaning of [chapter 11. 88 RCW],           and a Limited Guardian of the Person [ and]


Limited Guardian      of   the Estate should   be   appointed."   CP at 88.




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No. 45465 -3 - II



            The commissioner canceled the prior durable power of attorney in its entirety. She

discharged Quick as Decker' s attorney, and she ruled that " Daniel Quick PLLC may petition the

court   for   additional      fees and   costs   up    until   the 90   day hearing."       CP at 95.


            Quick moved for approval of his attorney fees. He requested approval of $118, 110. 65

that he had already been           paid and      for   an additional $      17, 137. 50 for an unspecified number of


hours of representation. He submitted lengthy billing summaries. Quick submitted a copy of a

signed attorney fee agreement between himself and Decker, dated October 20, 2011.

            The commissioner approved a total of $30, 000 for Quick' s fees and costs. This sum

appears to reflect 120 hours of work at $ 250 per hour, but the commissioner did not specify the

number of hours she approved. The court commissioner ordered that Quick " shall pay to the

Guardian the difference            of              paid over $ 30, 000 within six months                from today'   s   date."   CP
                                        anything


at   331.    The commissioner did not enter findings of fact and conclusions of law, but she did

discuss this ruling on the record. She dismissed Quick' s argument that Decker had agreed to his

fees, saying:

             Regardless of the contract, you still are under a court order only to do a certain
             amount of work without further court authority. So you kind of took your own risk
             in that regard, because the court is always mindful of maintaining a substantial
             amount, try to limit litigation costs and keep as much money available for the
             alleged incapacitated person.


CP    at    350 -51.    The commissioner reminded Quick that she had approved only 50 hours in her

previous orders.          The commissioner concluded that Quick' s fees were not reasonable, stating:

               100, 000    plus   is   not reasonable      in this kind      of matter.           No matter how hard or
             difficult Ms. Decker is, no matter how much of a defense she wants, you still have
             to be     mindful of, you     know,       what    kind     of context   this   is.    So, you know, I don' t
             know      what   to say. You' re     authorized       from ( inaudible)        calculation   is like $ 12, 500
             is what the court okayed.




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No. 45465 -3 - II



               Now, I think that given the difficulty and the fact ultimately some additional
        funds over and above what was initially authorized makes sense, but nowhere near
        the 110 that you' ve already, I guess, received.

                And I have to agree, it is somewhat unusual in the context of someone that' s
        being brought before the court for concerns about exploitation to be receiving funds
        without the court' s blessing.

CP at 367.


        Quick moved the trial court to revise the commissioner' s order. A trial court judge

denied this motion to revise. Quick appeals.


                                              ANALYSIS


        Quick argues that the trial court erred by failing to revise the commissioner' s order

reducing his attorney fees and disgorging fees he had already received. He argues that the trial

court lacked the authority to reduce fees and that it violated Decker' s due process rights by

reducing fees accrued before her adjudication of incapacity. He also argues that, even if the trial

court had such authority, it erred by reducing the fees without engaging in a proper analysis and

making proper findings. We disagree.

                                         I. STANDARD OF REVIEW


        In an appeal of a trial court' s decision not to revise a court commissioner' s decision, we

review the trial court' s decision, not the commissioner' s. State v. Ramer, 151 Wn.2d 106, 113,

86 P. 3d 132 ( 2004).   Where the trial court denied the motion to revise without making findings

of its own, we deem that the trial court adopted the findings and conclusions of the

commissioner. State ex rel. J.V.G. v. Van Guilder, 137 Wn. App. 417, 423, 154 P. 3d 243 ( 2007).

        We apply a two step review to attorney fee calculations. First, we review de novo the

legal basis for awarding attorney fees, and then we review a discretionary award of attorney fees



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No. 45465 -3 - II



for an abuse of discretion. Gander v. Yeager, 167 Wn. App. 638, 647, 282 P. 3d 1100 ( 2012).

We review an award of attorney fees in a guardianship case for an abuse of discretion. In re

Guardianship      of Lamb, 173 Wn.2d 173, 184, 265 P. 3d 876 ( 2011);                   In re Estate ofBlack, 153

Wn.2d 152, 173, 102 P. 3d 796 ( 2004).


         We review issues of statutory interpretation, such as whether the trial court has authority

to act under a statute, de novo. In re Guardianship ofBeecher, 130 Wn. App. 66, 70, 121 P. 3d

743 ( 2005).    First, we look to the plain language of the statute to determine legislative intent.

130 Wn.    App.   at   70 -71.   Only if the plain language is ambiguous do we proceed to consider

other sources of       statutory intent,   such as   legislative   history.   130 Wn.     App.   at   71.   We look " at


the   statute as a whole, and our     interpretation     must not create an absurd result."             130 Wn. App. at

71.   If a statute is plain and unambiguous, its meaning must be primarily derived from the

language itself. In re Guardianship ofJohnson, 112 Wn. App. 384, 387, 48 P. 3d 1029 ( 2002).

We do    not   delete language from        an unambiguous statute.        State   v.   J.P., 149 Wn.2d 444, 450, 69


P. 3d 318 ( 2003).


                        II. TRIAL COURT HAD AUTHORITY To LIMIT ATTORNEY FEES


          Quick argues that the trial court lacked the authority to limit his attorney fees and to order

disgorgement because Decker was never adjudicated incapacitated under RCW 11. 88. 045( 2).


Quick also argues that the trial court had no authority to limit his fees incurred prior to the May

7, 2013 trial court order appointing Decker' s guardian. We disagree.2


2 Guardian Laufer argues that Quick invited the error he claims, stating that he " invited binding
court review when he prepared and presented the Agreed Fee Order." Br. of Resp' t Laufer at 40.

Laufer argues that cooperating with the Agreed Fee Orders constitutes invited error and that
Quick should not be allowed to complain of this error on appeal. But Quick does not assign



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No. 45465 -3 - II



A.       Decker Was Adjudicated Incapacitated


             Quick argues that Decker was never adjudicated incapacitated under the guardianship

statute because she agreed to a limited guardianship, and thus there was never an adversarial trial

proving her incapacity. We disagree.

             The guardianship statute does not contain a definition of "adjudge" or related terms.
Black'   s   Law     Dictionary defines " adjudge" in relevant   part as: " adjudicate,"   and "[   t] o deem or


pronounce       to   be."   BLACK' S LAW DICTIONARY 47 ( 9th     ed.   2009). " Adjudicate"    means "[    t] o rule


upon   judicially." BLACK' S LAW DICTIONARY 47 ( 9th ed. 2009).

             Here, the commissioner held a hearing, considered evidence, and then entered findings of

fact and conclusions of law finding that Decker " is capable of managing some personal and /or

financial affairs, but is in need of the protection and assistance of a limited Guardian" of her

person and estate, and ruling that Decker " is an Incapacitated Person within the meaning of

RCW Chapter 11. 88."            CP at 86, 88. Under the statute' s plain language, this constitutes an


adjudication of Decker' s incapacity. Quick' s argument fails.3




error to the agreed fee orders initially limiting his representation of Decker; he instead assigns
error to the commissioner' s ruling on his motion for approval of attorney fees. Furthermore,
because the agreed fee orders are not erroneous, we do not hold that Quick invited any error.

3 Furthermore, Quick' s argument leads to the absurd result that, where an allegedly incapacitated
person is so incapacitated that no one contests the guardianship, there would never be an
 adjudication" of incapacity because there was no adversarial process. It does not make sense to
construe the statute to require an adversarial trial, expending all of the judicial and estate
resources that a trial requires, before a court may " adjudicate" an incapacitated person' s status.
Our interpretation of a statute must not lead to absurd results. Beecher, 130 Wn. App. at 71.



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No. 45465 -3 - II



B.        Trial Court Could Limit Preadjudication Attorney Fees

          Quick next argues that the trial court did not have the authority to limit his fees from

before the May 7, 2013 order deeming Decker incapacitated. He argues that the court had no

way to determine when Decker lost the capacity to contract, so the trial court had no authority to

reduce    fees   she   willingly   paid   to him before     May       7, 2013.   Quick relies on the Division One case


In re Guardianship ofBeecher in support of this argument. Beecher, 130 Wn. App. at 72 -73.

We disagree, because the plain language of the guardianship statute requires the trial court to

oversee attorney fees that are necessarily incurred before the adjudication of incapacity, and

because Beecher is distinguishable.


          The process to create a guardianship begins when a petition alleging a person' s

incapacity is filed in the trial court. RCW 11. 88. 010, . 030. An allegedly incapacitated person

has the   right   to be   represented     by   counsel of   his   or   her choosing. RCW 11. 88. 045( 1)(   a).   If


incapacity is established, the court appoints a guardian to help make decisions on that person' s

behalf. RCW 11. 88. 010( 1).          The trial court has the authority to appoint a guardian only for an

incapacitated      person.   RCW 11. 88. 010( 2).         But the court may appoint a guardian ad litem to

consult with an alleged incapacitated person about the guardianship proceedings. RCW

11. 88. 090( 3).


            Although governed by statute, guardianships are equitable creations of the courts and it

is the court that retains ultimate responsibility for protecting the ward' s person and estate. "'

Lamb, 173 Wn.2d at 184 ( quoting In re Guardianship ofHallauer, 44 Wn. App. 795, 797, 723

P. 2d 1161 ( 1986)).       Accordingly, the guardianship statute is intended to provide the courts " full

and ample power and          authority ...      to   administer and settle ... [      a] ll matters concerning the




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No. 45465 -3 -II



estates and assets of   incapacitated ...   persons."   RCW 11. 96A. 020( 1)(    a).   The statute provides


alleged incapacitated individuals the right to " counsel of their choosing at any stage in

guardianship   proceedings."    RCW 11. 88. 045( 1)(    a).   And


        dJuring the pendency of any guardianship, any attorney purporting to represent a
       person alleged or adjudicated to be incapacitated shall petition to be appointed to
       represent the incapacitated or alleged incapacitated person. Fees for representation
        described in this section shall be subject to approval by the court pursuant to the
       provisions of RCW 11. 92. 180.


RCW 11. 88. 045( 2) (   emphasis added).     Thus, under RCW 11. 88. 045( 2), the court must oversee


both the appointment of and fees of an attorney for an alleged incapacitated person.

        RCW 11. 88. 045( 2) directs the trial court to use RCW 11. 92. 180 as the mechanism for

approval of attorney fees. By its terms, RCW 11. 92. 180 addresses fees of guardians or limited

guardians. But, as quoted above, RCW 11. 88. 045( 2) plainly incorporates the fee provision of

RCW 11. 92. 180 as the mechanism for approval of attorney fees as well. RCW 11. 92. 180

provides:




        A guardian or limited guardian shall be allowed such compensation for his or her
        services as guardian or limited guardian as the court shall deem just and
        reasonable....     In all cases, compensation of the guardian or limited guardian and
        his or her expenses including attorney' s fees shall be fixed by the court and may be
        allowed at any annual or final accounting; but at any time during the administration
        of the estate, the guardian or limited guardian or his or her attorney may apply to
        the court for an allowance upon the compensation or necessary expenses of the
        guardian or limited guardian and for attorney' s fees for services already performed.
              The amount of guardianship fees and additional compensation for
        administrative costs shall not exceed the amount allowed by the department of
        social and health services by rule.

 Emphasis added).


        Thus, RCW 11. 88. 045( 2) — the section of the guardianship statute that permits


 representation of an alleged    incapacitated   person —     explicitly provides that the fees of any



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No. 45465 -3 - II



attorney representing an alleged incapacitated person during the pendency ofany guardianship

 shall   be    subject     to   approval"   by the   court under   the   procedure   in RCW 11. 92. 180. ( Emphasis


added).       The plain language of RCW 11. 88. 045( 2) provides that the court has oversight over the


appointment and compensation of an attorney representing an alleged incapacitated person

during the pendency of the guardianshipthat is, before a guardianship is established and an

adjudication of incapacity has been made. To hold that a trial court has no authority over

attorney fees incurred prior to adjudication would be to delete the word " alleged" where it

appears       twice in RCW 11. 88. 045( 2).          We must give effect to the entire statute. Beecher, 130


Wn.    App.     at   71.   Thus, we hold that the guardianship statute clearly allows for court oversight of

attorney fees in the case of people alleged or adjudicated to be incapacitated. RCW

11. 88. 045( 2).


          Nevertheless, Quick argues that the trial court lacked the authority to reduce fees that

Decker paid him in the period prior to the May 7, 2013 court order adjudicating her

incapacitated. He relies on the Division One case In re Guardianship ofBeecher, 130 Wn. App.

at   72 -73.    But the facts of Beecher are distinguishable from this case, and Beecher does not

control our analysis.




              In Beecher, the alleged incapacitated person hired an attorney to represent her in

                      proceedings, and       the trial court approved the attorney' s      appointment.   130 Wn.
guardianship


App.     at   68 -69, 69    n.   1.   But, apparently, the trial court never entered an order prospectively

limiting       fees for the attorney.        130 Wn. App. at 69. Beecher told her attorney that she wanted to

resist and      defend     against     the guardianship   at all costs.    130 Wn. App. at 69. Beecher was never

adjudicated as incapacitated. 130 Wn. App. at 72.



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            The GAL      challenged        Beecher'   s   attorney'   s   fees.   130 Wn. App. at 69. The trial court

ruled that the fees were excessive and unreasonable, and ordered the attorney to repay over half

of   the   fees.   130 Wn. App. at 70. The attorney appealed, arguing that the trial court did not have

the authority to limit his fees in his representation of an alleged incapacitated person whom the

court never adjudicated to be incapacitated.


            Division One agreed, holding that

            the court can review fees and costs under the guardianship statute only after an
            adjudication of incapacity.   Until then, an alleged incapacitated person retains
            the right everyone else has to hire and pay the attorneys of her choice. No court
            ever found Beecher was incapacitated, so the trial court did not have the
            authority to review [her attorney' s] fees.

130 Wn. App. at 68. The court based this holding on the fact that RCW 11. 88. 045( 2)

incorporates the fee        review provisions of           RCW 11. 92. 180, which          governs guardian   fees. 130


Wn. App. at 68. Because the statute permits the court to appoint a guardian only after there has

been an adjudication of incapacity, the Beecher court reasoned that the trial court similarly

obtains authority to review and limit attorney fees under the statute only after an adjudication of

incapacity.        The   court   held that "[   s] ince Beecher never lost her capacity to contract, there was no

basis      on which or reason       to invalidate her       contract with [ her       attorney]."   130 Wn. App. at 73.

            Beecher is distinguishable. Beecher was never adjudicated incapacitated, but Decker

was. The holding of Beecher, by its terms, applies only where there was never an adjudication of

incapacity.        130 Wn.   App.     at   68. In such cases, the alleged incapacitated person has never lost


the right to contract. But, as described above, the guardianship statute' s plain language permits

the court to reduce preadjudication attorney fees once there has been an adjudication. RCW

 11. 88. 045( 2).




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          Because Decker was adjudicated incapacitated, Beecher does not apply to this case.

Instead, the plain language of the statute makes clear that the court had the authority to oversee

and reduce Quick' s fees. We do not look beyond the plain language of the statute if it is clear.

Beecher, 130 Wn. App. at 70.

C.        Due Process —Quick               Lacks Standing

          Quick further argues that the trial court violated Decker' s due process rights by reducing

Quick' s attorney fees incurred prior to Decker' s adjudication of incapacity. We do not entertain

his challenge, because we hold that Quick lacks standing to vindicate Decker' s due process

rights.4 As a fundamental principle, we refrain from deciding constitutional issues when a case

can be decided on nonconstitutional grounds. Isla Verde Intl Holdings, Inc. v. City of Camas,

146 Wn.2d 740, 752, 49 P. 3d 867 ( 2002).


             It is a general rule that " a person lacks standing to vindicate the constitutional rights of a

third party."           In   re   Guardianship     of Cobb, 172 Wn.   App.     393, 401, 292 P. 3d 772 ( 2012). But a


litigant may have standing where ( 1) he or she " has suffered an injury -in -fact, giving him or her

a    sufficiently       concrete     interest in the   outcome of   the   disputed issue; ( 2) [ he or she] has a close


relationship to the third party; and ( 3) there exists some hindrance to the third party' s ability to

protect      his   or   her   own    interests."   Cobb, 172 Wn. App. at 401 -02. A litigant purporting to

vindicate a third party' s constitutional rights bears the burden of demonstrating that " the

allegedly injured third party lacks the ability to              vindicate      his   or   her   rights."   Cobb, 172 Wn. App.

at 403.




4 We may address standing sua sponte. In re Recall of West, 156 Wn.2d 244, 248, 126 P. 3d 798
    2006).



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          In Cobb, the siblings of an incapacitated person purported to vindicate his due process

rights.   172 Wn. App. at 402. The siblings did not argue that any asserted errors in the

guardianship proceeding " led to an erroneous incapacity determination or resulted in an

erroneous appointment" of            the   guardian.       172 Wn. App. at 402. Because none of the asserted

errors implicated the incapacitated person' s ability to protect his interests through his appointed

guardian, we held that the challenging siblings did not have standing to raise the incapacitated

person' s    due   process rights.       172 Wn. App. at 402.

          Here, Quick has suffered an injury in fact: the trial court disgorged his attorney fees. And

he had a close relationship to Decker as her attorney during the pendency of the guardianship.

But Quick does not meet the third prong of the test and thus cannot litigate Decker' s due process

rights: he has not shown that there is some hindrance to Decker' s ability to protect her own

interests.    Cobb, 172 Wn.         App.   at   402 -03.    Quick does not argue that the incapacity

determination was erroneous nor that Laufer cannot adequately protect Decker' s interests. See

Cobb, 172 Wn.         App.   at   402.   Quick has not carried his burden of showing us that Decker lacks

the ability to vindicate her own due process rights. We hold that Quick has not shown that he

has standing to assert Decker' s rights.

                                  III. REDUCTION OF ATTORNEY FEES WAS PROPER


          Quick next argues in the alternative that, even if the trial court had the authority to limit

his attorney fees, it did so erroneously without engaging in the lodestar analysis5 and without


 5 The lodestar analysis is an equation whereby a court determines whether the attorney expended
 a reasonable number of hours in the case, then determines whether the attorney' s hourly rate was
 reasonable, and multiplies these figures to arrive at a reasonable sum of attorney fees. Mahler v.
 Szucs, 135 Wn.2d 398, 433 -34, 957 P. 2d 632, 966 P. 2d 305 ( 1998) (               overruled on other grounds


 by Matsyuk v.      State Farm Fire & Cas. Co., 173 Wn.2d 643, 659, 272 P. 3d 802 ( 2012)).



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entering proper findings. We disagree because a trial court is not required to conduct a lodestar

analysis when determining compensation under the guardianship statute.

A.        Lodestar Analysis Not Requiredfor Attorney Compensation in Guardianship

          In general, trial courts should use the lodestar method when determining the award of

attorney fees as costs. Mahler v. Szucs, 135 Wn.2d 398, 433 -34, 957 P. 2d 632, 966 P. 2d 305

 1998) (   overruled on other grounds    by Matsyuk v.     State Farm Fire & Cas. Co., 173 Wn.2d 643,


659, 272 P. 3d 802 ( 2012)).    To perform its supervisory function and to permit appellate review

under the lodestar analysis, the trial court must make findings of fact and conclusions of law

supporting its decision. Mahler, 135 Wn.2d at 435.

           While the lodestar method is generally accepted as the starting point for attorney fee

determinations, it is not required in all contexts. Where the primary considerations for the fee

award are equitable, courts are not required to apply the lodestar method to determine an award

of fees. See, e. g., In re Marriage of Van Camp, 82 Wn. App. 339, 342, 918 P. 2d 509 ( holding
that the lodestar method was not required to determine fee award in marital dissolution cases),

review     denied, 130 Wn.2d 1019, 928 P. 2d 416 ( 1996). As stated above, statutory guardianships


are "'   equitable creations of the courts and it is the court that retains ultimate responsibility for

protecting the    ward' s person and estate.'"   Lamb, 173 Wn.2d at 184 ( quoting Hallauer, 44 Wn.

App. at 797).

           The court, in overseeing guardianships, must weigh the competing concerns of individual

 autonomy and protection of incapacitated persons. RCW 11. 88. 005. This is not a typical .
 situation wherein lodestar analysis is required, such as where a trial court awards attorney fees to

 the prevailing party. Here, the primary considerations for the fee award are equitable, and trial



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courts are not required to apply the lodestar method. See, e. g., Van Camp, 82 Wn. App. at 342.

But the trial court, in making its equitable decision, may balance lodestar factors when it

determines just and reasonable fees.


        Although consideration of reasonable hours and reasonable hourly fees may play a role,

requiring a lodestar analysis does not make sense in the context of this statute. The lodestar

method is intended to calculate costs awarded to a prevailing party. Typically, attorney fees are

available only for successful claims. In a lodestar analysis, the court " should discount hours

spent on unsuccessful claims, duplicated or wasted effort, or otherwise unproductive time."


Chuong   Van Pham    v.   Seattle   City Light,   159 Wn.2d 527, 538, 151 P. 3d 976 ( 2007). But under


the guardianship statute, an attorney for an alleged incapacitated person need not succeed in

contesting the guardianship to merit compensation. RCW 11. 88. 045( 2) provides attorney

compensation whether or not the attorney prevails in contesting a guardianship. The calculation

of a reasonable attorney fee, therefore, is different in these two different contexts.

        Furthermore, it would not make sense to construe the statute to require a trial court to use


a lodestar analysis where, as here, the attorney has violated previous court orders limiting him to

a certain number of hours of representation. If only a lodestar analysis were required here,

attorneys appointed under the statute would have an incentive to bill hours in contravention of a

trial court' s order, and the trial court would then be required to analyze the reasonableness of

such excessive hours under the lodestar method. This would render RCW 11. 92. 180 and

 11. 88. 045( 2) nearly meaningless, because regardless of the trial court' s prospective limitation on

attorney fees, the attorney could demand that the trial court compensate him for a reasonable

number of hours retrospectively. Thus, we hold that a lodestar analysis is not required here,



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although a court may consider the lodestar factors of reasonable hours and reasonable fees in

arriving at a just and reasonable result.6
          Instead of requiring a lodestar analysis, the guardianship statute itself contains guidance

for the trial court in determining fees. RCW 11. 92. 180 provides:

          A guardian or limited guardian shall be allowed such compensation for his or her
          services as guardian or limited guardian as the court shall deem just and
          reasonable....       In all cases, compensation of the guardian or limited guardian and
          his or her expenses including attorney' s fees shall be fixed by the court and may be
          allowed at any annual or final accounting; but at any time during the administration
          of the estate, the guardian or limited guardian or his or her attorney may apply to
          the court for an allowance upon the compensation or necessary expenses of the
           guardian or limited guardian and for attorney' s fees for services already performed.

           The guardianship statute' s plain language allows the court to determine compensation " as

 it]   shall   deem just   and reasonable."   RCW 11. 92. 180. Here, the trial court commissioner


appointed Quick as an attorney under the statute as part of the guardianship proceedings. for

Decker. Quick was entitled to such compensation as the commissioner deemed just and

reasonable for the limited amount of time the court appointed him as an attorney. The statute

appears to contemplate that the trial court will determine just and reasonable compensation based

on the competing equitable factors of compensating an attorney for his work, protecting the

alleged incapacitated .person' s right to autonomy, and also protecting the incapacitated person' s


6 Quick argues that a lodestar analysis is required even in this procedural context, citing In re
Settlement /Guardianship ofAGM, 154 Wn.       App. 58, 79, 223 P. 3d 1276 ( 2010). In AGM, the
trial court used a lodestar analysis to reduce attorney fees for a settlement guardian ad litem in a
minor settlement case.    154 Wn. App. at 79. We held that the trial court did not abuse its
discretion by using the lodestar method, and wrote in dicta that the lodestar method is the
  clearly      preferred method   for calculating attorney fees."   154 Wn. App. at 79. But AGM
 addresses whether it was an abuse of discretion for the trial court to use the lodestar method. It
 does not address whether it is an abuse of discretion not to use it.




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estate from excessive attorney fees, because guardianships are equitable creations of the trial

court.    Lamb, 173 Wn.2d at 184.


B.        The Trial Court Made a Just and Reasonable Fee Award


          Quick argues that the award of attorney fees was improper under a lodestar analysis. We

hold that the trial court did not abuse its discretion because it made a just and reasonable award

of attorney fees as compensation under the statute.

          The commissioner ordered that Quick was entitled to represent Decker for 50 hours only.

Later, in the commissioner' s oral ruling limiting Quick' s fees to $ 30, 000, the commissioner

clearly decided that Quick' s fees were excessive because his hours were so far in excess of what

the    court   had   ordered.     The     commissioner stated, "[    Y] ou still are under a court order only to do a

certain amount of work without further court authority. So you kind of took your own risk in

that   regard."      CP   at   350 -51.    The   commissioner continued, "$      100, 000 plus is not reasonable in


this kind of matter. No matter how hard or difficult Ms. Decker is, no matter how much of a

defense     she wants, you still          have to be   mindful of, you   know,   what   kind   of context   this   is." CP


at 367. But the commissioner weighed this against the large amount of work Quick had in fact

performed        for Decker, saying, " I         think that given the difficulty and the fact ultimately some

additional funds over and above what was initially authorized makes sense, but nowhere near the

 110 that      you' ve   already, I   guess, received."     CP at 367. On these bases, the commissioner


concluded that a reasonable total fee for Quick was $ 30, 000.




7 Quick also argues that the trial court failed to make a reviewable record of its fee award. But
because we hold that a lodestar analysis was not required, neither were corresponding lodestar
 findings required for our review.


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No. 45465 -3 -II


        The   amount   the   commissioner awarded was       significantly higher than the $ 12, 500. 00 total


Quick   was authorized   to bill based   on   the Agreed Fee   Orders ($ 250. 00 per hour for 50 hours),


but significantly lower than Quick' s actual bill of $135, 248. 15. In reaching this decision, the
commissioner kept to the agreed reasonable rate of $250. 00 per hour, and arrived at an award of

total fees that took into account Quick' s violation of the court orders, but also considered the

unexpected difficulty Quick faced in this unusual guardianship case. In doing so, the

commissioner appears to have balanced the equitable factors central to the guardianship statute.

The trial court balanced Decker' s right to contest a guardianship and protect her autonomy by

paying an attorney, and the competing need to protect Decker' s estate from excessive attorney
fees. These considerations are central to the trial court' s responsibility to protect the ward' s

person and estate. Lamb, 173 Wn.2d at 184.


         We hold that the trial court' s award of attorney fees was not an abuse of discretion,

because the award reflects a previously agreed hourly rate and a number of hours that weighed

the competing equitable concerns, including Quick' s actual efforts and the order limiting his
hours. This method of calculation and the ultimate award of fees was just and reasonable.

                                    ATTORNEY FEES ON APPEAL


         Both Laufer and Quick seek attorney fees in this appeal. We grant Laufer' s request for

attorney fees and deny Quick' s request.

A.       Laufer is Entitled to Fees


         Guardian Laufer requests that we grant reasonable attorney fees to Decker' s estate under

 RAP 18. 1 and RCW 11. 96A. 150 reflecting the guardian' s expense in this appeal. RAP 18. 1

 permits us to award reasonable attorney fees to a party entitled to recover such fees under



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applicable law. RCW 11. 96A. 150 permits us to award attorney fees from any party to any party

 in   such amount and   in   such manner as   the   court   determines to be      equitable."         RCW


11. 96A. 150( 1).   Under this section, we may consider any and all factors we deem to be relevant

and appropriate, such as whether the litigation benefits the estate. RCW 11. 96A. 150( 1).

         We hold that equity requires that Decker' s estate receive reasonable attorney fees

reflecting Laufer' s expenses in defending this appeal. Laufer defends Decker' s interests
pursuant   to his duties   under   the guardianship   statute.   At   stake   in this   appeal   is   over $ 100, 000   of


Decker' s assets; as guardian, Laufer defends this appeal to protect those assets on behalf of

Decker. The guardianship statute is designed to protect vulnerable people who cannot manage

their financial affairs on their own. RCW 11. 88. 005. Thus, it is equitable to award reasonable


attorney fees to Decker' s estate, reflecting her legal guardian' s expenses for protecting Decker' s

finances. We consider him a prevailing party, and provide him reasonable attorney fees as an

equitable matter for his defense of Decker' s estate' s assets.


B.       Quick is Not Entitled to Fees

         Quick argues that respondents Laufer and the Department, not Decker' s estate, should

bear the costs of this appeal because they frivolously defended the appeal and did not acquiesce

to Quick' s insistence that his position was supported by settled law. We disagree. For the

reasons stated above, Laufer' s and the Department' s defense of this appeal was not frivolous,

and Quick is not entitled to fees.


          In conclusion, we affirm the trial court' s orders, holding that the trial court had authority

to limit Quick' s attorney fees and order disgorgement of fees paid to him. We further hold that a

 lodestar analysis was not required because Quick was retained as an attorney under the




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guardianship statute, which by its plain terms requires court oversight of appointed attorneys'

fees in   an equitable context.   RCW 11. 92. 180, 11. 88. 045( 2). And we hold that the trial court did


not abuse its discretion in finding that $30, 000 was just and reasonable. We affirm the trial

court' s award of attorney fees and we further award Decker' s estate reasonable attorney fees.




 We concur:




                         A,c.X




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