TOO MANY LAWYERS IN THE FLORIDA GUARDIANSHIP? Here’s why Florida probate courts must appoint a lawyer in a guardianship dispute (a look at a recent Palm Beach guardianship case)
Florida guardianship litigation is increasing. Are you involved in a contested guardianship dispute?
In Florida, when a person is believed to be unable to handle his or her own affairs, a guardianship may be appropriate. Probate courts in Florida, from Stuart, Florida to Miami Dade County, Florida, handle all guardianship matters and the guardianship judge often determines what personal rights an incapacitated person is capable of exercising, and which rights they are not able to exercise.
The probate court, then, may restrict basic human rights and civil liberties of a Florida resident who is believed to be incapacitated. This is serious stuff. And because it’s serious stuff, Florida law holds that a probate court must appoint an attorney to represent the interests of the person who is believed to be incapacitated (also call the “ward.”)
Guardianship litigation seems to be on the rise. Stepchildren have legal disputes with second and third spouses. Parents engage in probate litigation with children. Everyone is involved in guardianship litigation, trying to determine who will make decisions for mom or dad. And…..who will handle all the money in the guardianship estate. After all, if one is unable to handle one’s own affairs, they probably need some help with their money and finances.
A recent Palm Beach County, Florida appellate case stands for the proposition, or the probate rule or the guardianship law, that if a guardianship proceeding or an incapacity proceeding is initiated, if it’s been filed, then the court must appoint an attorney to represent the ward. To not do so is incorrect and will be reversed on appeal.
So, if you think there are too many lawyers now, please understand that when there is litigation over who will be the guardian; when there is a guardianship dispute, the court will appoint a lawyer to look out for the incapacitated Florida resident.
Here’s what the appellate court, which is in West Palm Beach, Florida, wrote in this recent guardianship case: “Under the Florida Guardianship Law, any person who is alleged to be incapacitated is entitled to be represented by counsel in proceedings to determine capacity and to determine whether a guardian should be appointed over his or her person or property. At issue in this case is when a court must appoint counsel for an alleged incapacitated person if a court determines a guardian needs to be appointed on an emergency basis. We hold that counsel must be appointed at the same time the emergency temporary guardian is appointed.”
In this case, the guardianship matter was contested: there was a dispute. It took place in the Delray Beach courthouse, for the 15th Judicial Circuit, which is Palm Beach County’s judicial system. The appellate court also noted: “In non-emergency situations, a trial court is required to appoint counsel for an alleged incapacitated person when the petition for adjudication of incapacity is filed. ” The Palm Beach County appellate court recited from the Florida Guardianship Statutes, specifically § 744.331(2)(b), Fla. Stat. Finally, the appellate court noted: “We have previously held that failure to appoint an attorney for an alleged incapacitated person in a proceeding to determine incapacity is fundamental error.”
So, if you are child, a husband or wife, and a petition to determine capacity or a petition for appointment of guardian has been filed here in Florida, understand that there will be lawyers involved and that the probate court will appoint a guardianship lawyer to represent the Florida resident who may need help.
In the end, the probate court, or the Florida guardianship judge, will determine if the Florida resident needs assistance or not, and whether the Florida citizen has a revocable trust or a living trust or a power of attorney. If there is a power of attorney or Florida revocable trust, a guardianship may not be needed.
If you would like to read the entire opinion, email michelle@pankauskilawfirm.com .