Nursing Home Must Pay Guardian ad Litem’s Fees After Instituting Removal Proceeding Against Resident’s Guardian

An Ohio appeals court rules that a nursing home that brought a removal proceeding against a resident’s guardian over allegedly negligent Medicaid eligibility actions must pay the legal fees of the guardian ad litem (GAL) appointed to investigate the guardian’s actions. Progressive Macedonia, LLC v. Shepard (Ohio Ct. App., 11th Dist., No. 2020-T-0036, March 15, 2020).

David Shepard was the guardian of a resident at a nursing home who received Medicaid benefits. The state discontinued the resident’s Medicaid benefits due to excess funds. The nursing home requested that the court remove Mr. Shepard as guardian, arguing that he was negligent. The court appointed a GAL to investigate the allegations. The GAL found that the resident had excess assets due to the sale of his house, and that Mr. Shepard acted appropriately by spending down the ward’s assets and requalifying him for Medicaid.

After the resident died, the nursing home withdrew the motion to remove. The GAL filed a motion to recover his legal fees. The trial court determined that the nursing home was the party seeking relief and was liable for the legal fees. The nursing home appealed, arguing that because the guardianship proceeding wasn’t an adversarial proceeding, the court couldn’t require the nursing home to pay the GAL’s fees.

The Ohio Court of Appeals, Eleventh District, affirms, holding that the nursing home is liable for the GAL’s fees. The court rules that while the trial court incorrectly designated the guardianship proceeding as an adversarial proceeding, the nursing home “instituted the removal proceeding, participated throughout, and vigorously defended its right to do so.” Therefore, according to the court, the trial court had jurisdiction to require the nursing home to pay fees.

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2021/2021-Ohio-792.pdf

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