Right to counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Protected Person

Upon a petition to determine whether a person is incapacitated (a predecessor step to guardianship),  Fla. Stat. § 744.331(2) provides that


(a) When a court appoints an attorney for an alleged incapacitated person, the court must appoint the office of criminal conflict and civil regional counsel or a private attorney as prescribed in s. 27.511(6). A private attorney must be one who is included in the attorney registry compiled pursuant to s. 27.40. Appointments of private attorneys must be made on a rotating basis, taking into consideration conflicts arising under this chapter.


(b) 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.


(c) Any attorney representing an alleged incapacitated person may not serve as guardian of the alleged incapacitated person or as counsel for the guardian of the alleged incapacitated person or the petitioner.


See also Fla. Stat. § 744.3725(1) (“Before the court may grant authority to a guardian to exercise any of the rights specified in s. 744.3215(4), the court must: ... [a]ppoint an independent attorney to act on the incapacitated person’s behalf, and the attorney must have the opportunity to meet with the person and to present evidence and cross-examine witnesses at any hearing on the petition for authority to act”); Fla. Stat. § 744.3031(1) (requiring appointment of counsel for emergency temporary guardianship proceedings); Fla. Prob. R. 5.649(c) (“Within 3 days after a petition has been filed, the court shall appoint an attorney to represent a person with a developmental disability who is the subject of a petition to appoint a guardian advocate. The person with a developmental disability may substitute his or her own attorney for the attorney appointed by the court.”).  Counsel is also provided for review of the guardianship if contested.  Fla. Stat. § 744.464(2)(e). 


One of the Florida Court of Appeals has said that the failure to appoint counsel in such proceedings is fundamental error.  Martinez v. Cramer, 121 So. 3d 580, 583 (Fla. Dist. Ct. App. 2013) (citing In re Fey, 624 So.2d 770, 772 (Fla. Dist. Ct. App. 1993).


Additionally, in Guardianship of Sanders v. Chaplin, 334 So. 3d 723 (Fla. Dist. Ct. App. 2022), an appellate court considering payment of attorney's fees for the appointed attorney refused to require that an appointed attorney prove the services were "of benefit to the ward" before granting attorney's fees, disagreeing with the conclusion of Schlesinger v. Jacob, 240 So. 3d 75, 78 (Fla. Dist. Ct. App. 2018).  The Sanders court agreed with the concurrence in Schlesinger that "attorneys are less likely to represent family members and interested parties concerned about how the ward is treated because they will not get paid, and thus, fewer claims by family members and interested parties will be brought to court. The result is less oversight of the most vulnerable members of our community."  The court added that "Without question, it is necessary and of benefit to the ward for her attorney to review and ensure the accuracy of the inventory and guardianship paperwork—to effectuate the process. To declare that a court appointed attorney tasked with these legal responsibilities may only be compensated for legal services rendered if she found error or declared a necessary amendment is without logic."

Appointment of Counsel: categorical Qualified: no