In re Guardianship of Klatthaar

In re Guardianship of Klatthaar, --- So.3d --- (Fla. 2d DCA 2014), 2014 WL 51382

In guardianship proceedings, until incapacity is determined and a guardian is appointed, fees of the various attorneys involved and the members of the examining committee may rack up without any method for payment.  Once a guardianship is established, the law is clear about payment of the fees.  But if a guardianship is never established, as the Court correctly points out in this decision, there is a hole in our statute that leaves attorneys and examining committee members with no ability to be paid for their work.

In this case, the alleged incapacitated person died before a final determination of incapacity was rendered.  A petition was filed and an ordered was entered for the fees and costs of the attorney for the petitioner, the attorney for the alleged incapacitated person and the members of the examining committee.  The personal representative of the decedent's estate appealed that determination and the Court ultimately reversed the order for fees and costs because a guardianship was never established.

F.S. 744.331(7)(a) entitles the examining committee and the court-appointed attorney to reasonable fees once incapacity is determined and a guardian is appointed.  F.S. 744.331(7)(c) provides that where the petition for incapacity is dismissed, the 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.  F.S. 744.331 leaves a gap when a good faith petition to determine incapacity is dismissed. The Court admitted it was concerned that practitioners would not offer their services if they know that they will only be paid if there is a certain outcome, but it felt that it is up to the legislature to determine who should be responsible for these fees.

F.S. 744.108(1) entitles a guardian or an attorney for a ward or guardian to reasonable fees.  This statute only applies to situations where a guardian has actually been appointed for a ward.  If a guardianship is never established, this section cannot be relied on.

Hopefully this decision will spur a change in our guardianship statutes to close this gap!

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