Adult Guardianship Statute:
Fla. Stat. §§ 744.101 to .715; 747.01 to .052.
Right to Counsel in Statute: Initial Guardianship Proceedings:
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings:
Right to Counsel Statututory Citation:
Fla. Stat. §§ 744.331(2)(b), 744.3215(1)(l)
Right to Counsel Definition in Statute:
"The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petiton for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court." A person who has been determined to be incapacitated retains the right to counsel. See Fla. Stat. § 744.3215(1)(l).
Advocacy Role of Counsel Defined in Statute:
Advocacy Role of Counsel Definition in Statute:
The attorney "shall represent the expressed wishes of the alleged incapacitated person to the extent it is consistent with the rules regulating The Florida Bar." Fla. Stat. Ch. § 744.102(1).
Professional Rules &/or Ethics Opinions:
"When a client's ability to make adequately considered decisions in connection with the representation is impaired, . . . the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." Fla. Bar Reg. R. 4-1.14(a).
Other Case Law:
Court held that the trial court should have appointed independent counsel to represent the ward prior to the hearing; not appointing counsel violated Flor. Statute that provides for a court appointed "attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity." In re Fey, 624 S.2d 770 (Fla. Dist. App. 4th 1993). "Since ward's right to contract was removed by order determining her incapacity, she had no power to contract with attorney to represent her in any proceeding." In re Guardianship of Bockmuller, 602 So. 2d 608 (Fla. Dist. App. 2nd 1992). "Before depriving an individual of all their civil and legal rights by declaring individual an incapacitated person, the individual must be incapable or exercising his rights at all, whether wisely or otherwise." McJunkin v. McJunkin, 896 So. 2d 962 (Fla. Dist. App. 2nd 2005). A trial judge must specifically find whether or not an alleged incompetent is represented by counsel in any hearing where incompetency is to be determined, and whether or not counsel should be afforded." In re Guardianship of Paunack, 355 So. 2d 1195 (1978).
Other Important Info:
"An attorney seeking to be appointed by a court for incapacity and guardianship proceedings must have completed a minimum of 8 hours of education in guardianship." Fla. Stat. § 744.331(2)(d). "When a minor or incompetent person has a representative, such as a guardian or other like fiduciary, the representative may sue or defend on behalf of the minor or incompetent person. A minor or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for a minor or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the minor or incompetent person." Fla. R.Civ.P Rule 1.210. "Since a ward is the intended beneficiary of the guardianship, at attorney who represents a guardian of a person adjudicated incapacitated and who is compensated from the ward's estate for such services owes a duty of care to the ward as well as the guardian." Op. Atty. Gen. 96-94: