Probate, trust, guardianship and inheritance litigation
[frmmodal-content label="50 State Probate Guide"][formidable id=47 minimize = "1"][/frmmodal-content]

Attorney Fees Denied Where Alleged Incapacitated Person Dies Before Adjudication of Incapacity

By:  Jeffrey Skatoff, Esq.

What if you petition for guardianship, and there is ultimately no adjudication of incapacity – who pays your fees?  The lack of an adjudication of incapacity could be because the petition was dismissed, denied, or the person died before an adjudication of incapacity.  How are the fees of the examining committee paid if there is no guardianship established?

The Old Law

In In Re Klatthaar (2d DCA 2014), the Florida appellate court determined that where a guardianship is not established, the guardianship statutes generally do not permit payment of fees to the attorneys and examining committee from the assets of the alleged incapacitated person (IAP).

An involuntary guardianship proceeding was initiated by Mark Scott to determine the incapacity of his aunt, Mary Klatthaar.  Mark was represented by Attorney Keller.  The court appointed Attorney McGarry to represent Mary, as required pursuant to Florida Statute 744.331(3)(b), and appointed a three member examining committee pursuant to section 744.331(3)(a).  Before a final determination of incapacity, Mary died, and the petition to determine incapacity was dismissed.

The only issue remaining was how the attorneys and examining committee fees were going to get paid when there was no adjudication of incapacity, and no established guardianship.

Mark’s attorney and Mary’s attorney petitioned the court for payment of their attorney’s fees and costs, as well as the fees of the examining committee.  The guardianship court awarded fees payable from Mary’s estate.  The personal representative of Mary’s estate appealed the fee awards.  The Florida appeals court ruled:

“Because sections 744.108 and 744.331 do not contemplate the payment of fees and costs from an alleged incapacitated person where a guardianship is not established,” the circuit court erred in awarding fees and costs and directing said fees and costs to be paid from Mary’s estate because a guardianship was never established.

Section 744.108, at the time of Klatthaar, stated that:

(1) A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.

Section 744.331 governs the procedures to determine incapacity and states that:

(7) FEES.—
(a) The examining committee and any attorney appointed under subsection (2) are entitled to reasonable fees to be determined by the court.
(b) The fees awarded under paragraph (a) shall be paid by the guardian from the property of the ward or, if the ward is indigent, by the state. The state shall have a creditor’s claim against the guardianship property for any amounts paid under this section. The state may file its claim within 90 days after the entry of an order awarding attorney ad litem fees. If the state does not file its claim within the 90-day period, the state is thereafter barred from asserting the claim. Upon petition by the state for payment of the claim, the court shall enter an order authorizing immediate payment out of the property of the ward. The state shall keep a record of the payments.
(c) If the petition is dismissed, costs and attorney’s fees of the proceeding may be assessed against the petitioner if the court finds the petition to have been filed in bad faith.

Under the plain language of these statutes, the Florida appellate court ruled that the attorneys and examining committee were not entitled to fees from the ward’s estate.

First, section 744.108, which governs attorney’s fees in guardianships, by its plain language only applies when there is a ward, i.e., when a guardian is appointed upon an adjudication of incapacity.

Second, section 744.331 does not provide a basis for fees unless a petition was filed in bad faith.  On this point the Florida appellate court stated:

Section 744.331 appears to be the only applicable section to this case as it governs procedures to determine incapacity. As the law currently stands, when a petition is dismissed for any reason, fees and costs may be assessed against the petitioner under section 744.331(7) if the petition was filed in bad faith. See Section 744.331(7)(c). There is otherwise no provision made regarding the liability for fees and costs in the event a petition is dismissed. Chapter 744 simply does not contemplate the payment of fees and costs from an alleged incapacitated person absent the establishment of a guardianship.

The Current Law

Obviously there was a gap in the law as to the delegation of responsibility for the payment of fees of the court-appointed attorney and the examining committee when a good faith petition is dismissed and there is no adjudication of incapacity.  Fees cannot be paid by the guardian from the ward’s property if a guardian is never appointed.  Therefore, the Florida legislature fixed the gap by amending section 744.331(7)(c) to state as follows:

(c) If the petition is dismissed or denied:

  1. The fees of the examining committee shall be paid upon court order as expert witness fees under s. 29.004(6).
  2. Costs and attorney fees of the proceeding may be assessed against the petitioner if the court finds the petition to have been filed in bad faith.  The petitioner shall also reimburse the state courts system for any amounts paid under subparagraph 1. upon such a finding.


Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

Probate, Trust & Guardianship Litigation

Hourly & Contingency Fees Available

AV Rated Martindale Hubbell 

(561) 842-4868