Florida Guardianship Litigation: Is an Alleged Incapacitated Person Entitled to Counsel of His or Her Own Choosing?

What is guardianship litigation in Florida? What should probate attorneys know about guardianship lawsuits? If an incapacity proceeding is filed, does the alleged incapacitated person have a right to counsel? Does the alleged incapacitated person have a right to choose their own counsel or do they only get a court appointed attorney? A May 16,2017 First DCA opinion discusses this issue. In Campell v. Campell, a son filed an incapacity proceeding involving his mother. Although counsel was appointed, the court appointed attorney failed to contact the mother for months. Therefore, the mother met with another attorney who filed a motion for substitution of counsel. The trial court denied the motion for substitution of counsel. Did the first DCA agree with the trial court? NO! To read the entire opinion, click here.  You may also want to read Florida Statute 744.331(2)(b), which states that “the court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court. ”