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Florida Adult Guardianships: What Can an Alleged Incapacitated Person Do if Her Attorney is not Representing Her Properly?

Uncategorized Nov 19, 2020
post about Florida Adult Guardianships: What Can an Alleged Incapacitated Person Do if Her Attorney is not Representing Her Properly?

Are you involved in a Miami guardianship proceeding? Are you the alleged incapacitated person in a guardianship matter in Florida? Did the Miami guardianship court appoint a Florida attorney to represent the alleged incapacitated person? Do court appointed attorneys in guardianship cases have to follow certain rules? Can a guardianship lawyer ignore the wishes of his or her client? Can a guardianship lawyer argue against his or her client’s interests if the lawyer feels it is in the best interest of the client?

Guardianship Proceedings in Miami and West Palm Beach

At Pankauski Hauser Lazarus, we handle many guardianship cases throughout Florida. When we refer to “guardianships”, we are talking about guardianships over adults, not minors. Commonly, children of the elderly file a guardianship to protect their mom or dad who is suffering from dementia or Alzheimer’s. Furthermore, certain disabled or injured adults may benefit from a guardianship if they are incompetent and unable to take care of themselves. Occasionally, parents of adult children may file a Florida guardianships if the adult child is unable to handle his or her needs.

Florida guardianship lawyers know that guardianship law is governed by Chapter 744 of the Florida Statutes. If you are involved in guardianship litigation in Dade County or anywhere in Florida, you should refer to this chapter. You should also consider interviewing an experienced guardianship lawyer who can answer your questions and properly represent you.

Florida Statute 744.331

Florida Statute 744.331 (2)(b) gives trial judges in Florida guardianship proceedings a mandatory obligation to appoint a guardianship lawyer to represent the alleged incapacitated person.

A Miami attorney or Palm Beach lawyer appointed to represent an alleged incapacitated person is entitled to reasonable fees. These fees are paid from the property of the ward or, if the ward is indigent, by the state.

Florida Statute 744.331 also provides that an alleged incapacitated person may choose to substitute the court appointed lawyer with his or her counsel of choice.

Substitution of Miami Guardianship Counsel

A person has a right to hire his or her own lawyer at any time unless it has been determined, by a probate judge, that he or she is not competent to do so. This means that, an ALLEGED incapacitated person can choose to hire whichever lawyer they wish, even if a different one is appointed. However, once a person is officially deemed to be incapacitated, it all changes.

In Jacobsen v. Busko, a Third DCA opinion, a ward who was officially deemed incapacitated, and who was appointed a guardian to represent her interests, decided to reach out to a lawyer to hire him. However, when the lawyer filed a motion seeking authorization to represent the ward in the Florida guardianship proceeding, the trial court denied the motion.

On appeal, the Third DCA acknowledges that section 744.3215(1)(1) of the Florida Statutes does give the ward  right to counsel. However, when the ward was deemed incapacitated, she lost her right to contract and, therefore, cannot hire the lawyer she wanted. Instead, the ward’s guardian can choose which lawyer to hire on behalf of the ward.

Erlandsson v. Guardianship of Beth Ann Elisa Erlandsson

This March 6, 2020 Fourth DCA opinion is a great example of a Florida guardianship case where the alleged incapacitated person was unhappy with her court appointed counsel.

Here, the alleged incapacitated person was blatantly opposed to the guardianship. She clearly indicated, more than once, that she was dissatisfied with her appointed lawyer and wanted to substitute appointed counsel. Her court appointed lawyer did not present evidence or cross-examine certain witnesses to help her case. In fact, the lawyer argued IN FAVOR of the plenary guardianship, which was the opposite of what the alleged incapacitated person, the lawyer’s client, wanted.

The Florida appellate court explained that ” even if the attorney thinks the guardianship would be in the client’s best interest, the attorney whose client opposes guardianship is obligated…to defend against the guardianship petition.” Here, the alleged incapacitated person was forced to keep a lawyer who advocated against what she desired.

If you are in need of a Miami guardianship lawyer who will fight hard for your expressed wishes, call (561)514-0900 ext.101 for a FREE consultation.