PROBATE CORNER
Role Of AIP’S Counsel In Guardianships
DAVID M. GARTEN
In Erlandsson v. Guardianship of
Erlandsson, 2020 Fla. App. LEXIS 6239
(Fla. 4th DCA May 6, 2020), the alleged
incapacitated person’s (“AIP”) parents
filed a petition for limited guardianship
seeking to remove all of their daughter's
rights, except for her right to vote and
right to marry. The petition alleged that
the AIP was not attending to her basic
medical and psychiatric needs and was
unable to manage her own finances.
The trial court appointed an examining
committee to investigate and provide a
report and recommendation to the court.
According to the committee's reports, the
AIP was not taking care of her medical
or psychiatric needs. Her diabetes was
unchecked, resulting in significant blood
sugar fluctuations, and her inattention to
self-care caused her to become blind in
one eye and legally blind in the other. Her
mental health fared no better. She was
schizophrenic and extremely paranoid.
She had recently been involuntarily
committed to a mental health facility,
and demonstrated a need for long-term
psychiatric care. The examining committee
unanimously reported that the AIP lacked
the capacity to exercise her basic rights
and recommended that a plenary guardian
be appointed, which was in excess of the
relief sought in the petition for limited
guardianship.
The trial court appointed counsel to
represent the AIP in the guardianship
hearings. The AIP asked to discharge her
appointed counsel, objecting throughout
the hearing to her lawyer's representation
and to having a guardianship imposed.
Despite her client's objections, appointed
counsel did not seek to withdraw, believing
her client lacked the capacity to make the
decision to fire her. The AIP continued to
object to counsel's representation, and the
trial court denied her request to discharge
her lawyer.
At the hearing, appointed counsel briefly
cross-examined one witness, but did not
object to the admission of evidence and
did not cross-examine the other witnesses.
The AIP attempted to cross-examine a
witness herself, but was prohibited from
doing so. Appointed counsel declined to
offer any evidence on the AIP’s behalf, and
the AIP complained, "I think my attorney
should have some evidence and things
in my favor." Finally, appointed counsel
argued in favor of a plenary guardianship,
against the AIP’s clear and express wish
that no guardianship be established. The
trial court ordered a plenary guardianship,
appointing the AIP’s parents as guardians.
In a well-reasoned and thorough opinion, the
appellate court reversed the guardianship
and remanded with directions to appoint
“conflict-free counsel” to represent the
AIP at a new hearing on the petition for
guardianship. The court reasoned, in
relevant part, as follows:
Florida law defines the role of appointed
counsel in guardianship proceedings
as follows: (1) "Attorney for the alleged
incapacitated person" means an attorney
who represents the alleged incapacitated
person. 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. §744.102(1), Fla. Stat. (2019)
(emphasis added). Representation of a
client's expressed wishes in a guardianship
proceeding is thus required by section
744.102(1), Florida Statutes, in accord with
Florida Bar Rules 4-1.2(a) and 4-1.14.7 The
language of the statute clearly requires
that a lawyer appointed in guardianship
proceedings represents the expressed
wishes and not necessarily the "best
interests" of a prospective ward.
The Florida Bar Rules address the role
of counsel where the client suffers from
mental or physical incapacity. Florida Bar
Rule 4-1.2(a) mandates that "a lawyer must
abide by a client's decisions concerning
the objectives of representation," and "must
reasonably consult with the client as to the
means by which they are to be pursued."
(emphasis added). Moreover, Florida Bar
Rule 4-1.14, which governs representation
of a client under a disability, provides that:
(a) Maintenance of Normal Relationship.
When a client's ability to make adequately
considered decisions in connection with
the representation is impaired, whether
because of minority, mental disability, or for
some other reason, the lawyer shall, as far
as reasonably possible, maintain a normal
client-lawyer relationship with the client.
(b) Appointment of Guardian. A lawyer may
seek the appointment of a guardian or take
other protective action with respect to a
client only when the lawyer reasonably
believes that the client cannot adequately
act in the client's own interest.
Appellant's counsel struggled with her
role because her client was actively
manifesting symptoms of a major mental
illness: [APPOINTED COUNSEL]: . . . . I
have two problems. One is because of
her medical condition and her refusal to
take medication I'm not sure she has the
capacity right now to make the decision
about who should represent her. The
second problem is the only way anyone is
going to be able to represent her is if that
attorney agrees that she is not sick and
that people are trying to make her sick, is
that correct?
Section 744.102(1) requires that an appointed
attorney "shall represent the expressed
wishes of the alleged incapacitated person
to the extent it is consistent with the rules
regulating The Florida Bar." The statute
manifests an intent to ensure that an alleged
incapacitated person's voice and wishes
are heard and considered. While counsel no
doubt believed that Appellant's physical and
mental conditions required a guardianship,
she still was obligated to represent her
client's expressed wishes rather than
preventing her from expressing her views.
"[E]ven if an 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." [citation omitted].
In forcing Appellant to go forward
with a lawyer advocating for what counsel
perceived to be her client's "best interests,"
rather than the client's "expressed interests,"
the trial court disregarded Appellant's
claims of a conflict of interest, and
violated section 744.102(1), Florida Statutes.
For a summary of AIP’s counsel’s duties
in a Guardianship, refer to Guidelines for
Court-Appointed Attorneys in Guardianship
Matters, Dropbox site: https://www.dropbox.
com/s/wkivhx4aynkrw9m/Guidelines.
Court%20Appointed%20Counsel%282020%29.
docx?dl=0
PBCBA BAR BULLETIN
15