Alleged Incapacitated Person Has Right To Substitute Counsel Until Incapacity Is Determined Under Florida Guardianship Code

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.

After Florida Guardianship Proceedings Are Initiated the Court Is Required To Appoint Counsel For the AIP

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.”

An AIP Is Permitted To Substitute Counsel Until Incapacity Is Determined By Clear and Convincing Evidence

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).

Does the Florida Guardianship Code Allow an AIP With an ETG To 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, because 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.  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.2 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. In

other words, because the statute confers on the alleged

incapacitated person the right to contract with and substitute

counsel, this constitutes an exception from the general authority of

the trial court to remove the alleged incapacitated person’s rights by

conferring authority on an emergency temporary guardian.

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.

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