PBCBA BAR BULLETINS JULY | AUGUST 2020 - Page 15

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