Some of my clients don’t have to imagine this nightmare scenario because they lived it: Adult daughter, mentally ill and homeless, was picked up by police and eventually admitted to a psychiatric unit of a local hospital. She wants to leave the hospital but cannot because she is a danger to herself and/or others and in the middle of a five day hospital hold. Hospital staff is telling my client to get emergency guardianship over daughter before the hold expires because daughter remains manic and requires more treatment.

Client gets on the telephone and calls lawyers. Some are not taking new clients. Some cannot meet with client for months. When client finally gets a willing lawyer, the lawyer explains that this guardianship process will cost thousands of dollars, particularly if daughter objects and a court hearing is necessary to resolve the objection. 

Client may not have that kind of money. Client does not want to see the hospital hold expire and daughter return to the street. Hospital staff is calling, asking if client has begun the guardianship process or if they should plan on releasing daughter.

Of the many factors that make up this nightmare, the cost of the process sometimes tips the scene into panic.  The cost is uncertain because an attorney is most often going to charge an hourly rate. The cost estimate can be $5,000 or $10,000 or more. The retainer fee that an attorney requests can be $2,000 or $5,000 or more. How can something so essential and apparently unavoidable also be prohibitively expensive?  

Part of the explanation is attributable to the alternate reality which lawyers occupy. You may have gotten a glimpse of this alternate universe when you asked your attorney to draft what you considered to be a simple estate planning document, and your attorney provided you with a thick, heavy binder filled with documents written in indecipherable legalese. In Lawyer World, not only do the inhabitants speak a different language, they have an otherworldly understanding of their value. In this world, specifically in the elder law neighborhood, a $260 hourly rate is considered to be extremely low and perhaps an indication of disease. $325 per hour and above is a more typical indicator of an attorney who lives happily and healthily in an elder law practice. 

These hourly rates are not always reliable indicators of a final bill. Some attorneys use a relatively low hourly rate, but bill for every email, letter, document, thought, and gesture related to the case. Others don't bill so "efficiently," but use a higher hourly rate, which makes up for lost time.

This is the world that client in crisis enters when client seeks help with an emergency guardianship. To prevent hyperventilation, the client could ask the attorney to work for a flat fee rather than for an hourly rate applied to time that the attorney spends on the case. The flat fee is still likely to be in the thousands of dollars, but at least the flat fee eliminates cost uncertainty. Some attorneys will not offer this option because it is difficult to predict when a case will consume a substantial amount of time. If an attorney agrees to take a case for a flat fee and the case evolves into a drawn out fight ending in a courtroom, the attorney may regret it. Still, the client should talk to the attorney about working for a flat fee, if cost is a concern.

This may be small consolation in the big picture nightmare that the client and daughter are enduring. Flat fee or hourly rate, the cost of guardianship is going to be high. The acquired benefit is not negligible. In return for that payment, the client gains the advocacy and guidance of an attorney that has been down that road before and understands and can explain its curves. In addition, client should take some pride that in a situation so wildly out of client’s control, client may have taken the only action available to help. This step takes at least as much unconditional love as it does money.