Guardians and Conservators: Guardian ad Litem

Liberty Northwest Ins. Corp. v. Halling and Oliver [1/7/02] 2002 MTWCC 1 In the absence of guidance in Montana law regarding compensation of a guardian ad litem in the Workers' Compensation Court, that determination must fall on general principles of equity and reasonableness. Contrary to the insurer's argument, the limitation on penalties and assessments stated in section 39-71-2905, MCA (1999), is inapplicable in the context of guardian costs. Compensation of a guardian is also not within the purview of the attorney's fees provisions of sections 39-71-611 and -612, MCA (1999). Section 39-71-612, MCA (1999), does require the insurer to pay reasonable costs as established by the Court if there is a dispute over the amount of benefits due. While the insurer has evidently paid benefits on behalf of the minor, it has apparently not paid all benefits due beneficiaries and has filed a declaratory judgment action putting the amount of the minor's benefits at issue. It is within the equitable power of the Court and the costs provision of section 39-71-612, MCA (1999), to treat guardian fees as a cost to be assessed against the insurer. In this context of this case, where the insurer commenced the litigation and stands to benefit the most from an order governing all beneficiaries, guardian ad litem fees should be borne by the insurer.

Dixon v. State Fund [7/26/01] 2001 MTWCC 40 The $75 hourly rate set in ARM 24.29.3802 for attorneys handling workers' compensation claims on an hourly rate basis is an appropriate rate of compensation for attorneys acting as guardians ad litem in workers' compensation proceedings. Claims for fees from guardians will be reviewed by the Court for reasonableness.

Dixon v. State Fund [7/26/01] 2001 MTWCC 40 Applying general principles of equity and reasonableness, and following the unanimous recommendation of the parties who have taken a position on the matter, the Court orders State Fund to pay reasonable guardian fees without recoupment from benefits since State Fund requested appointment of guardians and stands to benefit most from inclusion of all known possible beneficiaries in this litigation. Given the circumstances of this case and the virtual agreement of the parties, the Court does not reach the alternative arguments.

Simons-Tollefson v. State Fund [2/16/00] 2000 MTWCC 7 Insurer moved to dismiss petition for benefits filed on behalf of minor child of deceased worker on ground that 39-71-601, MCA (1992) requires written claim "within 12 months . . . either by the claimant or someone legally authorized to act for him in his behealf." Against the background of case law and other statutes, WCC held no one was legally authorized to act for the minor until a guardian or guardian ad litem had been appointed for the purpose of seeking workers' compensation benefits, even though the minor's mother was authorized to act on his behalf in other contexts. Where a guardian had not yet been appointed, the statute had not yet commenced and the motion to dismiss was denied. Where insurer did not object to mother's qualifications, WCC appointed her guardian ad litem.

Blowers v. Montana Insurance Guaranty Association [02/28/95] 1995 MTWCC 15 Where widow of deceased worker seeks lump sum conversion of benefits on behalf of herself and her minor child, a guardian ad litem must be appointed on behalf of the minor before the Workers’ Compensation Court will address the merits of her request.