In re Guardianship of Rahbek , 2020 Ohio 3223 ( 2020 )

[Cite as In re Guardianship of Rahbek, 2020-Ohio-3223.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
:
IN THE MATTER OF: :
: Appellate Case No. 17-19-11
THE GUARDIANSHIP OF: :
: Trial Court Case No. 1998-GDI-6
WILLIAM D. RAHBEK, :
AN INCOMPETENT : (Appeal from Common Pleas
: Court – Probate Division)
:
:
...........
OPINION
Rendered on the 8th day of June, 2020.
...........
WILLIAM R. ZIMMERMAN, JR., Atty. Reg. No. 0078925, 108 East Poplar Street, Sidney,
Ohio 45365
Appellee Guardian of the Estate/Attorney for Appellee
DAVID J. CUSACK, Atty. Reg. No. 0063880, 1195 D Meadow Bridge Drive, Beavercreek,
Ohio 45434
Attorney for Appellant Erika Tallet, Guardian of the Person
.............
-2-
FROELICH, J.
{¶ 1} Erika Tallet, daughter of William D. Rahbek, appeals from a judgment of the
Shelby County Court of Common Pleas, Probate Division, which granted her Motion to
Change Guardian and Application for Appointment of Guardian of Alleged Incompetent
as to the guardian of her father’s person, but denied her request to be substituted as
guardian of her father’s estate. For the following reasons, the trial court’s judgment will
be affirmed.
Factual and Procedural History
{¶ 2} The record, including the testimony from the May 13, 2019 hearing on Tallet’s
motion and application, establishes the following facts.
{¶ 3} In 1979, Rahbek, a veteran, was diagnosed with schizophrenia. In 1997 or
1998, the Veterans Administration (VA) determined that Rahbek, then 46 years old, was
100 percent disabled, and it awarded him back-pay to the time of his diagnosis. In July
1998, the trial court appointed Attorney Ralph Bauer as the guardian of the estate and
person of Rahbek, who was determined to be incompetent. At that time, Rahbek’s two
children, Zachary and Erika, were in college and could not be bonded. Both children
consented to the appointment of Bauer as their father’s guardian.
{¶ 4} Tallet testified that her mother initially had primary contact with Rahbek,
although Tallet stayed in regular contact with her father. Tallet’s contact increased after
she returned to Ohio in 2006.
{¶ 5} Bauer remained Rahbek’s guardian until August 2006, at which time Attorney
William R. Zimmerman Jr. was substituted as guardian of Rahbek’s estate and person
(Order, Aug. 21, 2006) and as counsel for the guardian (Order, Aug. 16, 2006). Tallet
-3-
began to express concerns to Zimmerman about the care her father was receiving at his
group home, and she involved a VA social worker.
{¶ 6} On Thanksgiving Day 2008, Rahbek was moved to Hillside Assisted Living
in Xenia. Tallet testified that the transition to Hillside was “wonderful,” and Zimmerman
provided her father “all the things that had been lost” at the prior home. Zimmerman
testified that while Rahbek resided at Hillside, he (Zimmerman) visited approximately
every two months and took Rahbek shopping, out to eat, and other places.
{¶ 7} In 2013, Rahbek began having significant issues with his bladder, which
required him to have a catheter. Hillside was unable to adequately address Rahbek’s
medical needs, resulting in numerous hospitalizations for infections. To facilitate Tallet’s
communication with her father’s physicians, and at Tallet’s request, Zimmerman provided
Tallet with a medical power of attorney for her father. Tallet arranged for a home health
nurse to come to Hillside to assist her father with catheter care.
{¶ 8} On October 13, 2017, Hillside contacted Tallet because Rahbek was
vomiting and not eating well, and it informed Tallet that he needed to go to urgent care.
Tallet went to see Rahbek and took him to an emergency room. Rahbek was found to
have a bowel obstruction; he was intubated and hospitalized for a week. Tallet arranged
for Rahbek to go to Friends Care for rehabilitation after his release, where he stayed for
approximately one month.
{¶ 9} In November 2017, Zimmerman moved the trial court for approval to relocate
Rahbek from the assisted living facility to Tallet’s home in Greene County due to Rahbek’s
need for an increased amount of care, which Tallet was willing to provide. Zimmerman
stated in his motion that Rahbek’s residing with Tallet would be more economically
-4-
feasible than paying an assisted living facility and would be in Rahbek’s best interest.
Zimmerman requested that Tallet be paid $1,125 monthly for Rahbek’s room and board,
share of utilities, food, and spending money for him. The trial court granted the motion
on December 4, 2017. In January 2018, based on information from Tallet regarding the
extensive nature of Rahbek’s needs, Zimmerman asked the trial court to increase Tallet’s
monthly payment to $2,000. The trial court granted the increase.
{¶ 10} In March 2018, Rahbek had surgery on his brain for an abnormal build-up
of fluids. After his release from the hospital, he went to Kettering Hospital’s rehabilitation
facility for a short time, then back to Tallet’s home. In April, Rahbek began to decline
physically, and he fell on May 2 at Tallet’s home. The hospital found bleeding in the
brain, requiring a second surgery. From May 15 to June 24, Rahbek stayed at Xenia
Health and Rehab. While there, Rahbek had additional issues with his catheter, and
Tallet again took her father to the hospital. At the end of June 2018, Tallet arranged for
her father to go to Patriot Ridge Community, a nursing facility, upon his release from the
hospital.
{¶ 11} In July 2018, Zimmerman notified the court that Rahbek had been moved
to Patriot Ridge, because Rahbek was in need of daily specialized care that Tallet was
no longer able to provide. At the time of the May 13, 2019 hearing, Rahbek continued
to reside at Patriot Ridge in Greene County.
{¶ 12} On February 14, 2019, Tallet filed a Motion to Change Guardian and an
Application for Appointment of Guardian of Alleged Incompetent. In her motion, Tallet
wrote that she had “been the primary contact for all the Ward’s health care needs and
often has been the primary care provider.” Tallet noted that Zimmerman had executed
-5-
a power of attorney in 2013 that purported to grant her authority to make medical
decisions for her father. Tallet indicated that she had been the primary health care
decision maker and provider for Rahbek for years, knew her father’s needs, and was
“capable of providing for his best interests better than anyone else.” Tallet further stated
that she had submitted an appropriate bond and had completed the necessary education
to serve as guardian. Tallet indicated that, if she were named guardian, she intended to
file a motion to transfer the case to Greene County, where both she and Rahbek resided.
Tallet’s brother consented to the appointment of his sister as guardian.
{¶ 13} The trial court held a hearing on Tallet’s motion on May 13, 2019, during
which Tallet and Zimmerman testified. Following the hearing, the court ordered the
parties to file proposed findings of fact and conclusions of law. (Order, May 14, 2019.)
Zimmerman filed his response on May 31, and Tallet responded on June 4.
{¶ 14} On July 18, 2019, the trial court ordered that Tallet be substituted as
guardian of her father’s person, but that Zimmerman continue as guardian of Rahbek’s
estate. Tallet appeals from the trial court’s judgment.
Removal of Guardian
{¶ 15} Tallet’s sole assignment of error states:
Trial court erred by denying Appellant Erika Tallet’s application to
replace Appellee William R. Zimmerman, Jr. as Guardian of the Estate
of William D. Rahbek.
{¶ 16} Under R.C. 2111.02(A), probate courts have the power to appoint a
guardian of the person, of the estate, or both of an incompetent. “A guardian of the
person is responsible for the care and well-being of the ward.” In re Guardianship of
-6-
Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683, ¶ 2, fn.1; see R.C.
2111.13. In contrast, a guardian of the estate is responsible for the management of the
ward’s property. Santrucek at ¶ 2, fn. 1; In re Anderson, 2d Dist. Montgomery No. 25367,
2013-Ohio-2012, ¶ 25; R.C. 2111.14. The guardian of the estate must manage the
estate for the best interests of the ward, pay and collect just debts, defend suits against
the ward, institute suits on behalf of the ward, and settle and adjust, when necessary or
desirable, the assets that the guardian may receive in kind from an executor or
administrator. R.C. 2111.14(A).
{¶ 17} R.C. 2111.06 requires the probate court to appoint the same person as
guardian of the person and estate of the ward, “unless in the opinion of the court the
interests of the ward will be promoted by the appointment of different persons as
guardians of the person and of the estate.”
{¶ 18} “Guardianship proceedings, including the removal of a guardian, are not
adversarial but rather are in rem proceedings involving only the probate court and the
ward.” In re Guardianship of Spangler, 126 Ohio St.3d 339, 2010-Ohio-2471, 933
N.E.2d 1067, ¶ 53. The Ohio Supreme Court has explained that, “[b]ecause the probate
court is the superior guardian, the appointed guardian is simply an officer of the court
subject to the court’s control, direction, and supervision. The guardian, therefore, has
no personal interest in his or her appointment or removal.” (Citations omitted.) Id.{¶ 19} R.C. Chapter 2111 does not address the removal of a guardian of an
incompetent ward. Contrast R.C. 2111.46 (addressing removal of a guardian of a
minor). R.C. 2109.24, which concerns fiduciaries appointed by the probate court with
respect to financial matters, permits the removal of a fiduciary if the fiduciary fails to make
-7-
and file a required inventory or accounting and the failure continues for 30 days after the
fiduciary has been notified by the court of the expiration of the relevant time. That statute
also allows the removal of a fiduciary, upon at least 10 days’ notice, for “habitual
drunkenness, neglect of duty, incompetency, or fraudulent conduct, because the interest
of the property, testamentary trust, or estate that the fiduciary is responsible for
administering demands it, or for any other cause authorized by law.”
{¶ 20} There are not many cases that address what standard applies for deciding
when a guardian of an incompetent ward can be removed by order of the probate court.
Addressing the issue after an extensive review of R.C. Chapter 2111 and the history of
R.C. 2109.24, the Eleventh District concluded that “the best interests of the ward is a
separate basis for removal of a guardian that is ‘authorized’ under the statutory scheme
set forth in R.C. Chapter 2111” and, further that “the ‘best interests’ basis has historically
fallen under the ‘catchall’ provision of R.C. 2109.24.” In re Guardianship of Spangler,
11th Dist. Geauga No. 2007-G-2800, 2011-Ohio-6686, ¶ 558. The Eleventh District
emphasized that “a probate court’s ultimate concern is the welfare of the ward, and if it is
established that the ward’s general welfare could be better served through the
appointment of a new guardian, the court has the general authority to proceed.” Id. at
¶ 54. The Seventh District also has interpreted R.C. 2109.24 to allow for the removal of
guardian “either for cause or simply in the interest of the guardianship.” In re C.W., 7th
Dist. Columbiana No. 13 CO 44, 2014-Ohio-2934, ¶ 23; see also In re Guardianship of
Zborowski, 8th Dist. Cuyahoga No. 99569, 2013-Ohio-3363, ¶ 17 (recognizing that the
probate court must act in the best interest of the ward).
{¶ 21} “The removal of a guardian is within the sound discretion of the trial court,
-8-
and a reviewing court will not reverse the order of the trial court unless it appears that the
lower court abused its discretion.” In re Guardianship of Poulos, 8th Dist. Cuyahoga No.
96366, 2011-Ohio-6472, ¶ 27; see also In re Guardianship of Babich, 3d Dist. Marion No.
9-91-27, 1992 WL 63280, *2 (Mar. 24, 1992). An abuse of discretion suggests that a
decision was unreasonable, arbitrary, or unconscionable. State v. Perkins, 3d Dist.
Seneca No. 13-19-46, 2020-Ohio-2888, ¶ 11, citing State v. Adams, 62 Ohio St.2d 151,
157-158, 404 N.E.2d 144 (1980).
{¶ 22} When reviewing the trial court’s findings, this court must be guided by the
presumption that the trial court’s findings were correct. In re Guardianship of Miller at ¶ 3.
“The rationale of giving deference to the findings of the trial court rests with the knowledge
that the trial judge is best able to view the witnesses and observe their demeanor,
gestures, and voice inflections, and use these observations in weighing the credibility of
the proffered testimony.” Id. at ¶ 9. Thus, the judgment supported by competent, credible
evidence shall not be reversed as an abuse of discretion. Id.
{¶ 23} Upon review of the evidence before the trial court, we find no abuse of
discretion in the trial court’s decision to deny Tallet’s motion to remove Zimmerman as
guardian of Rahbek’s estate and her application to appoint her in his stead. Much of
Tallet’s testimony at the May 13 hearing focused on her interactions with medical
professionals and care facilities and her efforts to ensure that her father’s needs were
being met, particularly since 2013 when his significant bladder issues began. Tallet
criticized Zimmerman’s alleged delegation to her of his duties regarding Rahbek’s medical
treatment and residential care, as well as Zimmerman’s failure to spend time with Rahbek
since his move to Patriot Ridge in June 2018.
-9-
{¶ 24} With respect to the financial aspects of Zimmerman’s performance as
guardian, Tallet described Zimmerman as reactive, rather than proactive, in terms of
spending money for her father’s benefit. Tallet stated that Zimmerman allowed her to
purchase items for Rahbek when he moved from Hillside to Friends Care, but she testified
that Zimmerman expressed to her that he did not think the trial court would agree to let
her throw everything away (due to bed bug issues). Tallet testified that she had received
some emails from Zimmerman that expressed concern about the cost of a particular
housing location for Rahbek. Tallet stated that her father’s resources could be better
used to enhance his life, such as encouraging his love of art and electronics.
{¶ 25} Tallet testified that she is a teacher with a master’s degree in education, has
been yearbook director and has handled money for an entire school in two different
districts, and is treasurer of a Cub Scout pack. Tallet stated that she carefully accounted
for expenditures when her father lived with her. Tallet acknowledged that Zimmerman
had sent her the guardian’s accounts that he filed; the record reflects that Tallet has never
objected to any of the guardian’s accounts. Tallet testified that she did not receive copies
of the applications for guardian fees and attorney fees, but she was aware of the
payments from the guardian’s accounts.
{¶ 26} During her testimony, Tallet agreed that she and Zimmerman had
communicated probably hundreds of times over the years and had had a “pretty good”
working relationship. Tallet could recall only one request that she had of Zimmerman
regarding her father’s medical care that Zimmerman denied, that being the purchase of a
medical bed for her home. Other than the bed, Tallet agreed that Zimmerman had not
denied a request by her for money for her father. Tallet was aware of discussions that
-10-
Zimmerman had with the VA and Patriot Ridge regarding Rahbek’s ability to stay there
for free. Tallet acknowledged that she was not alleging that Zimmerman had mishandled
Rahbek’s funds.
{¶ 27} Zimmerman also testified about his involvement with Rahbek’s care. He
indicated that he was involved in the admissions process for each place that Rahbek
resided and that he previously had regular contact with Rahbek. Zimmerman stated that
he had not been as involved in care conferences and had not visited recently since Tallet
had taken on a more active role.
{¶ 28} With respect to financial matters, Zimmerman testified:
* * * Bill has made a number of requests of me and I’ve always purchased
things for him. He’s a, he’s great tinkerer with things, he, he loves to draw,
he loves listenin’ to the radio. I’ve, I’ve purchased things on a number of
occasions for him when he’s requested them. There’s not one time that I
can ever re--, recall that anyone has made a request for Bill, um, for his
betterment * * * that’s a pleasure, that I have ever, ever said no to or not
followed through with. Not one.
Zimmerman described Rahbek as a person who “takes joy in the simple things in life” and
who “doesn’t like to be extravagant with his money spending.”
{¶ 29} Zimmerman acknowledged that he filed applications for both guardian fees
and attorney fees. He described the difference as “if I could do it just as a lay person it
would be under guardianship time; if I couldn’t, then it would be under * * * attorney time.”
Zimmerman testified that he used the billing rate set by the probate court’s local rule.
Zimmerman stated that his bill was reduced significantly because of VA requirements and
-11-
had been reduced significantly for the past few years because of Tallet’s increased
involvement in addressing Rahbek’s concerns.
{¶ 30} In denying Tallet’s motion to remove Zimmerman as guardian of the estate,
the trial court found:
[Tallet’s] proven performance as a personal caregiver to the Ward,
however, is not the same as a determination by this Court that the handling
and management of the Ward’s estate – being equally important to the
Ward’s well-being – should be reassigned given the successful and proven
performance of the current Guardian. The Guardian has worked well in
making sure that recommended decisions on the Ward’s personal care are
properly evaluated taking into account the Ward’s estate. There is no
credible evidence showing that the Applicant and the Guardian cannot work
well together, as they have in the past, for the Ward’s benefit. The
Applicant also has significantly less proven experience in handling such
matters and the Guardian has proven his ability to competently handle the
estate for the Ward. Overall, the Court finds no credible facts before this
Court that it would be of a benefit to the Ward to substitute a new guardian
of his estate.
{¶ 31} The record reflects that Zimmerman filed the required statements of account
throughout the guardianship, and his applications for guardian fees and attorney fees had
been accepted and paid without objection. Nothing in the records suggests financial
mismanagement; to the contrary, the record indicates that Zimmerman has competently
managed Rahbek’s assets, which, as of the last accounting in the record (September
-12-
2018), totaled approximately $687,000. (See Guardian’s Account, Sept. 27, 2018.) Both
Zimmerman’s and Tallet’s testimony reflected that Zimmerman considered the financial
implications of Tallet’s requests for her father, but that he consistently approved
expenditures for Rahbek as requested by Tallet. And, Tallet’s own testimony supported
the trial court’s finding that Tallet and Zimmerman had communicated and worked well
together in the past.
{¶ 32} In arguing that the trial court abused its discretion in denying her request to
be appointed guardian of her father’s estate, Tallet asserts that Zimmerman failed to meet
the requirements of Sup.R. 66.09, that he violated his duty to Rahbek by executing the
power of attorney, and that he charged “clearly excessive” guardian fees.
{¶ 33} Sup.R. 66.09, effective June 1, 2015, sets forth several responsibilities of a
guardian to a ward. The provisions reflect that the guardian should, among other things,
act in the ward’s best interest, make decisions that impose the least restrictions on the
ward’s freedoms, meet with and get to know the ward, assess the appropriateness of the
care being received, monitor and coordinate all services provided to the ward, and strive
to honor the ward’s preferences and belief system concerning extraordinary medical
issues. Tallet emphasizes Sup.R. 66.09(F), which states:
(F) Communication with ward
(1) A guardian shall strive to know a ward’s preferences and belief system
by seeking information from the ward and the ward’s family and friends.
(2) A guardian shall do all of the following:
(a) Meet with the ward as needed, but not less than once quarterly or as
determined by the probate division of the court of common pleas;
-13-
(b) Communicate privately with the ward;
(c) Assess the ward’s physical and mental conditions and limitations;
(d) Assess the appropriateness of the ward’s current living arrangements;
(e) Assess the needs for additional services;
(f) Notify the court if the ward’s level of care is not being met;
(g) Document all complaints made by a ward and assess the need to report
the complaints to the court of common pleas.
{¶ 34} Tallet claims that Zimmerman has not met the “letter and spirit” of Sup.R.
66.09 and of Sup.R. 66.09(F) in particular. She argues that the evidence established
that Zimmerman does not proactively assess Rahbek’s changing needs and that he has
not visited Rahbek since Rahbek’s move to Patriot Ridge in 2018. Tallet further notes
that that Zimmerman’s recent annual guardianship plan for the estate simply stated that
“Guardian shall maintain Ward’s eligibility to receive Social Security and Veteran’s
benefits.” (See Annual Guardianship Plan, Sept. 27, 2018) Tallet argues that
Zimmerman is not acting in Rahbek’s best interest, because he has not been
communicating with Rahbek about how Rahbek’s “considerable financial resources”
could be used to enhance Rahbek’s life.
{¶ 35} Most of the deficiencies alleged by Tallet are more relevant to Zimmerman’s
performance as guardian of Rahbek’s person than his performance as guardian of
Rahbek’s estate. Zimmerman acknowledged in his testimony that he had not visited
Rahbek since his move to Patriot Ridge. However, the trial court reasonably found,
based on the evidence, that Tallet “has been appropriately permitted by the Guardian
[Zimmerman], as a family member, to be the eyes and ears of the Guardian to assist, as
-14-
needed, to make sure that the Ward’s personal needs are being handled.” The trial court
stated that Tallet and Zimmerman “have been working very well together over the last
couple years to attend to the needs of the Ward,” and that the arrangement has “worked
well for the benefit of the Ward.” And, as to expenditures for Rahbek, the hearing
testimony established that Zimmerman had talked with Rahbek over the years regarding
items he wanted, that Rahbek was not an extravagant person, and that Zimmerman
consistently approved requests by Tallet and Rahbek for purchases on Rahbek’s behalf.
{¶ 36} The trial court indicated that, overall, it found no fault with Zimmerman’s
performance of his duties as guardian. Although Zimmerman might not have personally
complied with every provision of Sup.R. 66.09, the trial court’s conclusion about
Zimmerman’s overall performance was not unreasonable, particularly as it concerned
Zimmerman’s performance as guardian of Rahbek’s estate.
{¶ 37} Tallet further asserts that Zimmerman breached his duty to Rahbek by
delegating his responsibility as guardian to Tallet by means of the medical power of
attorney. Regardless of whether Zimmerman was authorized to execute the power of
attorney, under the facts before us, the trial court reasonably found that the power of
attorney facilitated Tallet’s involvement in her father’s medical care, but did not represent
an abdication of Zimmerman’s responsibilities as guardian of Rahbek’s person. Tallet
and Zimmerman agreed that Tallet communicated regularly with Zimmerman regarding
her father’s needs and care, which is substantiated by Zimmerman’s itemized guardian
fee statements. Zimmerman testified that he was involved in effectuating the changes
to Rahbek’s residential placements and that he had participated in care conferences until
recently. Zimmerman’s itemized guardian fee statements indicate that he reviewed and
-15-
paid numerous medical bills related to Rahbek’s care. Of particular relevance,
Zimmerman did not delegate, in any respect, his responsibilities over Rahbek’s estate,
and he testified that he would not issue a power of attorney regarding financial matters.
{¶ 38} Finally, Tallet claims that Zimmerman has charged “clearly excessive”
guardian fees, based on Zimmerman’s use of his attorney rate to calculate his fee for his
services as guardian. Tallet relies on Dayton Bar Assn. v. Parisi, 131 Ohio St.3d 345,
2012-Ohio-879, 965 N.E.2d 268, in which the Ohio Supreme Court noted that it had
“previously denounced as a clearly excessive fee charging legal fees for nonlegal
services.” Id. at ¶ 25.
{¶ 39} In Parisi, a disciplinary case, the respondent-attorney charged over
$220,000 for services provided by herself and her staff and for cost reimbursements
during the nearly three years that she acted for the complainant, Royal John Greene, as
his attorney-in-fact. The complainant and Parisi had orally agreed that Parisi would be
paid at the attorney rate for legal and nonlegal services. Id. at ¶ 18. The Supreme Court
noted that Parisi had provided some legal services to Greene, but the “bulk of her time *
* * was devoted to the nonlegal tasks of managing Greene’s life.” Id. at ¶ 19. The court
stated that Parisi’s billings “were replete with charges at her attorney rate for nonlegal
services like arranging and attending Greene’s doctors’ appointments, handling mundane
tasks related to Greene’s cable-television and magazine subscriptions, researching local
feline clubs, and arranging for the replacement of Greene’s watch battery. She billed
approximately $13,000 in fees and expenses for overseeing the partial restoration of
Greene’s beloved Jaguar.” Parisi at ¶ 26.
{¶ 40} The Supreme Court agreed with the relator-bar association that Parisi
-16-
violated professional responsibility rules prohibiting a lawyer from charging or collecting
an illegal or clearly excessive fee. The court reasoned: “Although relator did not present
any expert testimony about the charges for Parisi’s nonlegal services, it is clear that the
bulk of those services required little, if any, legal skill and that the cost of providing the
services was disproportionate to the benefit that Greene received. There is no question
that those charges specifically addressed by relator and the scores of nonlegal services
billed at attorney rates in Parisi’s 404-page billing record are clearly excessive.” Id. at
¶ 27.
{¶ 41} Sup.R. 73 leaves the matter of guardian compensation to local rule. Loc.R.
73.1(A) of the Common Pleas Court of Shelby County, Probate Division, establishes a
schedule for determining guardianship compensation based on income, disbursements,
and principal. It states:
A. A guardian shall be allowed compensation for income and
disbursements as follows:
1. Income and Disbursements:
4% of the first $5,000.00 of income and disbursements
3% of the next $25,000.00 of income and disbursements
2% of the excess of $30,000.00 of income and disbursements
2. Principal:
$2.50 per thousand on the first $250,000.00 of market value
$1.50 per thousand on excess of $250.00 [sic] of market value
B. For purposes of determining compensation based on income the
following shall not be considered income:
-17-
1. Receipt of corpus by guardian
2. Balance carried forward from prior accountings
3. Investment and reinvestment of corpus
The guardian fee calculation provided in Loc.R. 73.1(A) provides a presumptively
reasonable guardianship fee. There is no requirement that the guardian file an itemized
list of services provided as guardian.
{¶ 42} Under Loc.R. 73.1(E), a guardian may apply for additional compensation
for extraordinary services and reimbursement for expenses incurred. The application for
additional compensation must set forth an itemized statement of the services rendered
and expenses incurred and the amount for which compensation is applied. The probate
court must hold a hearing on the application unless the ward’s next of kin residing in Ohio
provides written consent for the extraordinary services and expenses.
{¶ 43} Because Rahbek was a veteran, Zimmerman’s guardian compensation also
was governed by R.C. 5905.13, which states, in relevant part, that “[c]ompensation
payable to guardians shall be based upon services rendered and shall not exceed five
per cent of the amount of moneys received during the period covered by the account
required by section 5905.11 of the Revised Code.”
{¶ 44} Loc.R. 71.2, which concerns counsel fees for guardians, further provides,
in relevant part:
When the attorney, law partner or firm associated is appointed as the
guardian, the attorney shall keep accurate time records that separate the
duties of the guardian from that of the attorney. Compensation shall be
approved for the reasonable value of services performed as attorney and
-18-
as guardian. If the attorney fails to maintain accurate time records, the
attorney will only be allowed the compensation determined under Rule 73.1
(Guardian’s compensation).
Loc.R. 71.2(F).
{¶ 45} When Zimmerman was appointed Rahbek’s guardian, he charged a rate of
$100 per hour for attorney services, although he reduced his first counsel fee request
pursuant to court rule (Motion for Attorney Fees, Sept. 18, 2007) and his first request for
guardian fees employed the guardianship fee calculator. (Motion for Guardian Fees, Sept.
18, 2007.) In October 2009, Zimmerman’s motion for guardian fees included an itemized
billing statement and employed an hourly rate of $125, the same as his attorney rate.
(Motion for Guardian Fees, Oct. 5, 2009.) The record’s most recent application for
attorney fees and for guardian fees used a rate of $190 per hour for attorney fees and
$150 per hour for guardian fees. (Motion for Attorney and Guardian Fees, Sept. 27,
2018.) Zimmerman testified that he has reduced his bill significantly due to restrictions
by the VA.
{¶ 46} Zimmerman has filed his applications for attorney fees and for guardian fees
concurrently with the filing of the guardian’s account, consistent with Loc.R. 73.1(D),
which requires applications for approval of guardian fees to be filed preceding or
simultaneous with the filing of a partial account or final account. Consequently, the trial
court had before it a statement of Rahbek’s income, disbursements, and principal when
it reviewed Zimmerman’s application for guardian fees. A review of the guardian
accounts in the record reveals that the amount of guardian compensation permissible
under Loc.R. 73.1 consistently exceeded the amount requested by Zimmerman using his
-19-
attorney rate. In September 2018, Zimmerman reduced his guardian fee request by
$5,027.50 – down to $1,767.50 – to comply with regulations concerning guardians for
veterans. Although Zimmerman arguably should not have calculated his requested
guardian compensation using the same methodology as his request for attorney fees, the
record does not substantiate that the requested amounts were “clearly excessive.”
{¶ 47} Significantly, and unlike Parisi, Zimmerman was acting under the
jurisdiction of the probate court, and his requests for guardian and counsel fees were
submitted to and approved by the court. Tallet was served with the guardian’s accounts
and never objected. Tallet testified that she did not receive copies of the applications for
fees, but she was aware that guardian fees and counsel fees were listed as
disbursements on the filed guardian’s account. Tallet did not complain about
Zimmerman’s fees at any time prior to filing her motion and application. Given that no
objections were lodged against Zimmerman’s requests for guardian fees and the requests
appeared to be reasonable, the trial court did not abuse its discretion in failing to remove
Zimmerman as guardian of Rahbek’s estate based on Zimmerman’s requested guardian
fees.
{¶ 48} In determining whether it was in Rahbek’s best interest to remove
Zimmerman as guardian of Rahbek’s estate and to appoint Tallet in his place, the trial
court had evidence regarding Zimmerman’s relationships with Rahbek and Tallet,
Zimmerman’s communications with Rahbek’s care providers, Zimmerman’s long-term
management of Rahbek’s accounts (including his handling of requested expenditures),
Zimmerman’s itemized requests for guardian fees and counsel fees, and Tallet’s
experience with financial management. Upon review of the evidence, the trial court
-20-
reasonably concluded that retaining Zimmerman as guardian of Rahbek’s estate was in
Rahbek’s best interest. Accordingly, Tallet’s assignment of error is overruled.
{¶ 49} The judgment of the Common Pleas Court of Shelby County, Probate
Division, will be affirmed.
.............
HALL, J. and WELBAUM, J., concur.
Copies sent to:
William R. Zimmerman Jr.
David J. Cusack
Hon. Jeffrey J. Beigel