Florida Probate, Trust & Guardianship Litigation

Alleged Incapacitated Person Has Right To Substitute Counsel

In Foster v. Radulovich, a December 17, 2021 opinion from the Florida Second District Court of Appeal, the Court considered whether an alleged incapacitated person with an emergency temporary guardian has the right to substitute counsel pursuant to the Florida Guardianship Code even though the right to contract has been delegated to the emergency temporary guardian.

The Facts Of Foster v. Radulovich

The Department of Children and Families (DCF) filed a petition for appointment of a plenary guardian over the person and property of Mr. Foster, an alleged incapacitated person (AIP).  The Florida guardianship court appointed counsel for the AIP pursuant to section 744.331(2)(b), Florida Statutes (2020).  At the hearing on DCF’s petition, the parties (including the AIP’s appointed counsel on his behalf) stipulated to the appointment of Christa Radulovich as emergency temporary guardian (ETG) over the AIP’s property.  The emergency temporary guardianship letters delegated the AIP’s right to contract to the ETG and were set to expire on September 20, 2020.

Attorney Denman filed a motion seeking appointment as the AIP’s counsel for the guardianship proceedings.  DCF and Respondents opposed the motion, arguing that the AIP could not enter into a contract and thus could not hire Denman.  At the hearing on the motion, the AIP explained that he wanted Denman to represent him.  The Florida guardianship court denied the motion.

After the hearing but before a ruling on the motion, the AIP filed a motion to substitute Denman as his counsel in the guardianship proceedings.  On September 21, 2020, before the court ruled on the motion and one day after the emergency temporary guardianship letters expired, Denman filed a notice of appearance as Foster’s attorney.  The Florida guardianship court then entered amended emergency temporary guardianship letters nunc pro tunc to September 20, 2020, denied Denman’s motion to substitute, and struck his notice of appearance as a nullity.  Denman challenged the order denying the motion to substitute counsel and striking his notice of appearance.

Court Required To Appoint Counsel

Under the Florida guardianship code, after Florida guardianship proceedings are initiated with the filing of a petition for incapacity, the court is required to appoint counsel for the alleged incapacitated person.

After an interested person initiates guardianship proceedings by filing a petition to determine incapacity pursuant to sections 744.3201 and 744.331(1), the trial court is required to appoint an attorney for the alleged incapacitated person. § 744.331(2)(b). Section 744.331(2)(b) provides that “[t]he alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court.”

AIP Permitted To Substitute Counsel Until Incapacity Determined

An alleged incapacitated person is permitted to substitute counsel until the trial court determines incapacity by clear and convincing evidence. See Holmes v. Burchett, 766 So. 2d 387, 388–89 (holding that an alleged incapacitated person subject to an emergency temporary guardianship is presumed competent to contract and has a right to substitute counsel during guardianship proceedings until incapacity is established); In re Guardianship of Bockmuller, 602 So. 2d 608, 609 (Fla. 2d DCA 1992) (holding that counsel for an incapacitated person must be contracted for by a guardian or appointed by the court). 744.1012(3) (“[I]t is the purpose of this act to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them . . . .”).

Appointment Of an Emergency Temporary Guardian – After a Petition For Incapacity But Before Appointment Of a Guardian

After a petition to determine incapacity has been filed, but before a guardian has been appointed, the trial court may appoint an emergency temporary guardian for the person, property, or both, of an alleged incapacitated person. § 744.3031(1).

While the trial court must make specific findings that there is an imminent danger to the health of the “alleged incapacitated person” or that the person’s property is in danger of being wasted, the trial court is not required to determine that the person is incapacitated to appoint an emergency temporary guardianship. § 744.3031(1). Rights that are not specifically enumerated by the trial court in emergency temporary guardianship letters are retained by the alleged incapacitated person because the “powers and duties of the emergency temporary guardian must be specifically enumerated by court order.” See § 744.3031(1).

Can an AIP Substitute Counsel If the Right To Contract Has Been Removed?

Yes.  An alleged incapacitated person with an emergency temporary guardian can substitute counsel even if the right to contract has been removed.  Section 744.331(2)(b) specifically provides that an alleged incapacitated person has the right to substitute appointed counsel with counsel of his or her choice during proceedings to determine incapacity, without regard to the right to contract.  The 2d DCA stated:

Section 744.3031(1) gives the trial court the general authority to delegate certain rights of the alleged incapacitated person to a guardian who has the power to exercise those rights on the alleged incapacitated person’s behalf. The statute confers “authority” on the temporary guardian but makes no express mention of the removal of a temporary ward’s rights. See § 744.3031. Delegation of specifically delineated authority has the consequence of removing corresponding rights from the alleged incapacitated person subject to an emergency temporary guardianship to protect the person or property of the individual from danger that may result from the person’s alleged incapacity if immediate action is not taken. See 744.3031(1). Among those rights removed from the alleged incapacitated person might be the right to enter into contracts. However, section 744.331(2)(b) specifically provides that an alleged incapacitated person has the right to substitute appointed counsel with counsel of his or her choice during proceedings to determine incapacity; this right, by logic and practicality, must entail the right to enter into an agreement with the attorney of his choosing. Thus, while section 744.3031(1) is broad enough to allow removal of the right to contract generally, section 744.331(2)(b) effectively prohibits the trial court from removing the alleged incapacitated person’s right to contract with an attorney.

Therefore, as an alleged incapacitated person, Mr. Foster had a right to substitute his court-appointed attorney with the attorney of his choice until the trial court determined his incapacity. See § 744.331(2)(b). By denying his motion to substitute counsel, the trial court departed from the essential requirements of the law.  The appellate court quashed the motion denying Foster’s motion to substitute counsel. By the time this opinion was issued, Foster had already been declared incapacitated.  The court found this of little consequence when compared to Foster’s right to choose his Florida guardianship counsel, stating:

Had the order denying Mr. Foster’s motion for substitution of counsel not been entered, he would have had his choice of counsel during the subsequent proceedings during which his capacity was determined. Once his statutory right to counsel of choice had been erroneously deprived in the order under review, that deprivation persisted up to, during, and beyond the point in time that the trial court adjudicated him incapacitated. Upon remand, Mr. Foster is entitled to “protect or obtain the enjoyment of [his] rights under the law”—including his statutory right to counsel of choice—”in the same manner and to the same extent which [he] might have proceeded had the order” denying his motion to substitute counsel “not been entered.” See id. Which is to say, because he was entitled to counsel of his choice during the incapacity proceedings that followed the erroneous denial of his motion for substitution of counsel, he is entitled to have those matters adjudicated while represented by his lawyer of choice upon remand.

Oral Argument at 5th District Court of Appeals

Florida Probate Attorney Jeffrey Skatoff Arguing in Court

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