Florida Probate, Trust & Guardianship Litigation

Expressed Wishes vs Best Interest of Ward

An appointed lawyer in a Florida guardianship proceeding is required by statute to represent the expressed wishes and not necessarily the “best interests” of a prospective ward.  In Erlandsson v. Erlandsson, (4th DCA 2020),  Florida’s Fourth District Court of Appeal reversed an order establishing a plenary guardianship and remanded for a new hearing because of an appointed lawyer’s failure to represent the prospective ward’s expressed wishes.

The Facts of Erlandsson

In Erlandsson, the prospective ward’s parents petitioned for a limited guardianship over their daughter.  The parents sought to remove all of the prospective ward’s rights specified in section 744.3215, Florida Statutes, with the exception of the right to vote and the right to marry.  The parent’s petition alleged that the prospective ward was not attending to her basic medical and psychiatric needs, and could not manage her own finances.

The examining committee all found that indeed the prospective ward was not taking care of her medical and psychiatric needs.  The examining committee unanimously found that the prospective ward lacked the capacity to exercise her basic rights and recommended that a plenary guardian be appointed.

The Florida guardianship court appointed counsel to represent the prospective ward during the guardianship hearings.  The prospective ward asked to discharge her appointed counsel, and objected throughout the hearing to her lawyer’s representation and to having a guardianship imposed.  Counsel did not seek to withdraw, and the Florida guardianship court denied the prospective ward’s 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. Appellant attempted to cross-examine a witness herself, but was prohibited from doing so. Appointed counsel declined to offer any evidence on Appellant’s behalf, and Appellant 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 Appellant’s clear and express wish that no guardianship be established…

Alleged Incapacitated Person Must Be Given Counsel

Every alleged incapacitated person in a Florida guardianship proceeding is entitled to counsel appointed by the guardianship court.  The trial judge has an obligation pursuant to section 744.331 of the Florida Guardianship Code to appoint counsel for the alleged incapacitated person.  Section 744.331(2)(b) states:

(2) Attorney for the alleged incapacitated person.—


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(b) The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court.


The court rejected the ward’s argument that she had the constitutional right to discharge counsel and to challenge the effective assistance of her counsel, such challenges being limited to the criminal arenas or other proceedings, not guardianships.

Role Of Court-Appointed Counsel

The role of the appointed counsel in Florida guardianship proceedings is defined:

“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.

Therefore, a lawyer appointed in a Florida guardianship proceeding represents the expressed wishes and not necessarily the “best interests” of the prospective ward.

The Florida Bar Rules address the role of an attorney representing a client suffering from a mental or physical incapacity.  An attorney representing a client that suffers from a mental or physical incapacity:

  • Must abide by a client’s decisions concerning the objectives of representation;
  • Must reasonably consult with the client as to the means by which they are to be pursued;
  • Must maintain, as far as reasonably possible, a normal client-lawyer relationship with the client; and,
  • 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.

Here, the Florida appellate court noted the dearth of Florida cases addressing the obligation of appointed counsel in guardianship proceedings.  The appellate court noted that cases outside of Florida have held that “even where a prospective ward’s wishes are contrary to their own best interests, counsel is obligated to advocate for their client’s wishes.”  The court cited to a New Jersey case, recognizing:

Still, the New Jersey high court acknowledged that the attorney’s role “does not extend to advocating decisions that are patently absurd or that pose an undue risk of harm to the client.”  The attorney’s role should be to advocate for the client’s choice, “as long as it does not pose unreasonable risks for her health, safety, and welfare.”

Appointed Counsel Has A Conflict Of Interest By Acting As AIP’s Guardian

The Florida appellate court also looked to an Iowa unpublished decision, In re Guardianship of Fagan, 909 NW 2d 443 (Iowa Ct. App. 2017), where the court determined that the appointed attorney who did not act as the purported ward’s counsel, did not advocate for the prospective ward, and did not subject  the petitioner’s case to adversarial testing, operated under an actual conflict of interest by acting as the prospective ward’s guardian, not his lawyer.

Here, even if appointed counsel believed that the prospective ward’s condition required a guardianship, she was still obligated to represent her client’s expressed wishes rather than preventing her from expressing her views.  The appointed counsel was obligated to defend against the guardianship petition, because that is what the prospective ward wanted her to do, and did not.  The Florida appellate court stated:

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.

The order establishing a permanent guardianship was reversed, and the case remanded with directions to appoint conflict-free counsel to represent the prospective ward at a new hearing on the petition for guardianship.

Oral Argument at 5th District Court of Appeals

Florida Probate Attorney Jeffrey Skatoff Arguing in Court

Jeffrey Skatoff

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