Probate, trust, guardianship and inheritance litigation
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Florida Attorney for Emergency Temporary Guardian Owes Duty of Care to Temporary Ward

By:  Jeffrey Skatoff, Esq.

Even though under Florida law there is no lawyer-client relationship between an alleged incapacitated person (AIP) who is a temporary ward and the lawyer for the emergency temporary guardian (ETG), the lawyer for the emergency temporary guardian owes the temporary ward a duty of care and can be sued for malpractice.  

In Saadeh v. Connors (Fla. 4th DCA June 24, 2015), the Fourth District held that a temporary ward was owed a duty of care by the attorney for the emergency temporary guardian.  We previously wrote about Saadeh’s underlying incapacity proceedings.  Following Saadeh’s incapacity proceedings, he filed suit against several parties involved in the guardianship proceedings, including:  the guardian’s attorney, the guardian, and Saadeh’s court-appointed attorney.  The suit contained a count for professional negligence and breach of duty against the guardian’s attorney.

The guardian’s attorney moved for summary judgment, asserting that there was no privity of contract between counsel for the guardian and the temporary ward; therefore, no duty was owed directly to Saadeh.  The trial court granted summary judgment finding that no duty was owed to the Saadeh by the attorney for the emergency temporary guardian as a matter of law.

On appeal, Saadeh asserted that he was a third-party beneficiary of the lawyer’s services, a requisite to avoid the privity limitation noted above. The Court noted that “[a]n attorney’s liability for professional negligence is generally limited to clients with whom the attorney shares privity of contract.” Dingle v. Dellinger, 134 So. 3d 484, 487 (Fla. 5th DCA 2014). However, “[i]f the parties are not in privity, to bring a legal malpractice action, the plaintiff must be an intended third-party beneficiary of the lawyer’s services.” Id. at 487-88.

The legal services in question were provided by the guardian’s attorney to the guardian.  The temporary ward’s guardianship estate, however, was compensating the guardian and the guardian’s attorney.  As the “incapacitated ward” Saadeh was the intended beneficiary of the legal services provided by the guardian’s attorney. 

Upon the filing of a petition to determine incapacity, the Court must appoint an attorney to represent the alleged incapacitated person. § 744.331(2)(b), Florida Statutes. “Any attorney representing an alleged incapacitated person may not serve as guardian of the alleged incapacitated person or as counsel for the guardian of the alleged incapacitated person or the petitioner.” § 744.331(2)(c), Florida Statutes.  Further, while the petition is pending, the Court is permitted to appoint an emergency temporary guardian to protect the alleged incapacitated person and any property from imminent harm. See § 744.3031(1), Florida Statutes. 

Please recall that under Florida law, an emergency temporary guardian is a person appointed by the Court when it appears that there is an imminent danger that the physical or mental health or safety of an alleged incapacity person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.  A petition to determine incapacity must be filed prior to the emergency temporary guardian appointment.  The authority of the emergency temporary guardian expires upon the earlier of ninety (90) days after the date of appointment or when a guardian is appointed.  The Court may extend this time period up to an additional ninety (90) days, upon a showing that the emergency conditions still exist.  

The Court relied on a 1996 opinion of former Attorney General Robert Butterworth, which explained the existence of this duty of care, as follows:

Under the state’s guardianship statutes, it is clear that the ward is the intended beneficiary of the proceedings. Section 744.108, Florida Statutes, authorizes the payment of attorney’s fees to an attorney who has “rendered services to the ward or to the guardian on the ward’s behalf[.]” Thus, the statute itself recognizes that the services performed by an attorney who is compensated from the ward’s estate are performed on behalf of the ward even though the services are technically provided to the guardian. The relationship between the guardian and the ward is such that the ward must be considered to be the primary or intended beneficiary and cannot be considered an “incidental third-party beneficiary.”

. . . .

Since the ward is the intended beneficiary of the guardianship, an attorney who represents a guardian of a person adjudicated incapacitated and who is compensated from the ward’s estate for such services owes a duty of care to the ward as well as to the guardian.

Fla. AGO 96-94.

The Court reversed the earlier grant of summary judgment and held that, as a matter of law, the temporary ward is both the primary and intended beneficiary of his estate.  The lack of privity will not foreclose the possibility and existence of a duty of care to a third party intended to benefit from the lawyer’s services.

In sum, Florida law now holds the attorney for a guardian accountable to the ward (or AIP) for misconduct engaged in during the guardianship proceedings. Attorneys considering aggressive representation of guardians engaged in bad behavior will now have to think twice before proceeding. 

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

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