PBCBA BAR BULLETINS pbcba_bulletin_May 2019 | Page 23

PROBATE C o r n e r
Standing To Sue The Guardian’s Attorney
(Post-Saadeh)
DAVID M. GARTEN
The relevant facts of Saadeh v. Connors , 166
So. 3d 959 (Fla. 4th DCA 2015) are as follows:
Saadeh is a wealthy man of advanced
years. After his wife passed away, a relative
introduced him to a younger woman.
Saadeh loaned money to the woman, which
alarmed his adult children. In response, the
children contacted attorney Colette Meyer
(“Colette”) who worked with a professional
guardian, Deborah Barfield (“Barfield”).
Barfield filed a petition to determine
incapacity and attached a neurologist's
report diagnosing Saadeh with "dementia,
probably Alzheimer's." After a hearing, the
court appointed Barfield as the emergency
temporary guardian. Colette was Barfield’s
attorney. Three days after the guardian's
appointment, Colette and Saadeh's court-
appointed attorney submitted to the court
an agreed order to settle the guardianship,
agreeing that Saadeh would execute a trust
in lieu of plenary guardianship. The agreed
order provided that Saadeh would execute
the required trust within seven days, and
that all pending incapacity proceedings
were dismissed. Notwithstanding the
agreed order, the trial court never dismissed
the underlying emergency temporary
guardianship, and the parties and the court
continued to conduct themselves as though
the subject guardianship proceedings had
never been dismissed. Saadeh was found
competent by a newly-appointed examining
committee.
ward and thus, by definition, the intended
beneficiary of everything connected with
the underlying guardianship proceeding.
Even though legal services were technically
provided to the guardian, Saadeh urged
that since his guardianship estate was
compensating both the guardian and the
guardian's attorney, the attorney owed him
a duty of care. Mr. Saadeh urged that as the
"incapacitated ward," he was the intended
beneficiary of services provided by the
guardian's attorney.
After a hearing, the court granted summary
judgment in favor of Colette and rejected
the argument that Saadeh was an intended
beneficiary. The court noted that Saadeh's
court appointed attorney invited Colette
to speak to Saadeh, and it compared this
situation to a criminal defense attorney
and his client engaging in plea negotiations
with a prosecutor. The court also relied
on section 744.331(2)(c), Florida Statutes,
which precludes an attorney for the alleged
incapacitated person from serving as
either the guardian or the attorney for the
guardian. Saadeh appealed the court’s order.
Saadeh sought an order from the trial
court setting aside the establishment of
the trust originally required by the agreed
order to settle the guardianship. The trial
court agreed with Mr. Saadeh and entered a
summary judgment setting aside the trust.
Subsequently, in 2010, Saadeh brought suit
against the guardian and Saadeh's court-
appointed attorney. In addition, Saadeh
sued Colette for professional negligence
and breach of duty. The appellate court, in reversing the
summary judgment, reasoned: “Based on
the foregoing analysis, we find that Saadeh
and everything associated with his well-
being is the very essence i.e. the exact point,
of our guardianship statutes. As a matter of
law, the ward in situations as this, is both
the primary and intended beneficiary of
his estate. To tolerate anything less would
be nonsensical and would strip the ward
of the dignity to which the ward is wholly
entitled. Whether there was a breach of
the duty which caused damages obviously
remains to be determined. But Mr. Saadeh
has a viable and legally recognizable cause
of action against the guardian's attorney
which is available to Mr. Saadeh and which
we direct be immediately reinstated.”
Colette moved for summary judgment,
arguing that there was no privity of contract
between her and Saadeh, and thus she owed
no duty directly to Saadeh. She also argued
that Saadeh's interests were adverse to the
interests of his children and the guardian.
In response, Saadeh argued that he was a
third-party beneficiary insofar as he was the The guardian’s attorney’s duties do not
extend beyond the ward. For example, in
Driessen v. Univ. of Miami Sch. of Law
Children & Youth Law Clinic, 260 So. 3d 1080
(Fla. 3rd DCA 2018), Ms. Driessen, the mother
of the ward, a developmentally disabled
person, sued the guardian’s attorney (“the
Clinic”) for legal malpractice. The court
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dismissed Ms. Driessen’s second amended
complaint with prejudice because she was
not the ward’s legal guardian, she did not
retain the Clinic to represent the ward or
the co-guardians (the ward’s sister and
grandfather), and she was not and is not the
intended beneficiary of the representation
of the legal guardians. The appellate court,
in affirming the dismissal with prejudice,
held that “Ms. Driessen, as Brittany's next of
kin, may have legitimate concerns regarding
some of the decisions made by Brittany's
guardians, those concerns do not provide
her with the standing to sue the Clinic for
legal malpractice in its representation of
her daughter's guardians.” “The exception
to this general rule requiring privity of
contract between the client and attorney
is when the plaintiff is the intended third-
party beneficiary of the services performed
by the attorney [citations omitted]. The ward,
which in this case is Brittany, not the ward's
next of kin, is the intended beneficiary of
the attorney's services.”
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