In re Guardianship of Beck, 204 So.3d 143 (Fla. 2d DCA 2016)
In this decision, the Court considered whether F.S. 744.108(1) authorizes an award of fees and costs incurred by counsel for an emergency temporary guardian and counsel for a ward who was the subject of an emergency temporary guardianship when there was no later determination that the ward was actually incapacitated, and no guardian was appointed. In this instance, an emergency temporary guardian was appointed, but the ward passed away before any determination of incapacity was made.
Counsel for the petitioner, the emergency temporary guardian and the alleged incapacitated person all sought reimbursement of their fees and costs. The trial court held that F.S. 744.108(1) did not permit an award of fees and costs before a guardian over the ward is appointed. The Appellate Court reversed.
(1) Fees and costs of attorney for emergency temporary guardian. The Court first held that the attorney for the emergency temporary guardian was entitled to fees under the plain language of F.S. 744.108(1) and Chapter 744, since an emergency temporary guardian is a "guardian." It found the holding in Klatthaar inapplicable - Klatthaar dealt with whether counsel appointed by the court pursuant to F.S. 744.331 to represent an alleged incapacitated person in a proceeding to determine capacity was entitled to fees under F.S. 744.108. There, the Court held that since the alleged incapacitated person died before a guardianship was established, F.S. 744.108 was not triggered. Here, an emergency temporary guardian was appointed and therefore the Court found that the fees and costs of her attorney were compensable.
(2) Fees and costs of attorney for petitioner. The trial court denied the fees and costs of the attorney for the petitioner since the petitioner was neither a guardian nor a ward, and thus was not entitled to fees under F.S. 744.108(1). The Court found that the trial court should have considered whether the petitioner's request for a determination of incapacity and appointment of guardian redounded to the benefit of the ward pursuant to Thorpe v. Myers, 67 So.3d 338, 345 (Fla. 2d DCA 2011), and thus reversed and remanded for such a determination.
(3) Fees and costs of attorney for the ward. This part of the decision was remanded for technical reasons (the death of the attorney representing the ward, among other things). However, the Court did note that under F.S. 744.108(1), an attorney rendering services to a ward is entitled to an award of fees and costs, and the decedent became a ward as soon as the emergency temporary guardian was appointed.