In re Guardianship of Beck

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.

Comments

  1. BrianJanuary 12, 2017 at 11:45 AM

    You state that the court remanded for a further determination of whether the petitioner's attorney is entitled to fees under Thorpe; but I see no reference to Thorpe in the opinion posted on the 2d DCA's website. Can you please explain your comment?

    ReplyDelete

Post a Comment

Popular posts from this blog

Malleiro v. Mori, Mori and Corallo

Malleiro v. Mori , 182 So.3d 5 (Fla. 3d DCA 2015) This case serves as a lesson in rarely used words buried in the Florida Probate Code.  The Court was asked to determine whether an unsigned notarial will executed in Argentina was a valid will under the Florida Probate Code.  The Court ultimately held that because the Argentine will was unsigned, even though it was a notarial will, it was a noncupative will prohibited by the Florida Probate Code. The testator executed a valid will in New York distributing her real and personal property located in the United States.  Four months later, she executed a second will in Argentina.  The Argentine will was not executed with the usual formalities of American wills.  Instead, the testator orally pronounced her testamentary wishes to a notary who transcribed them in the presence of three witnesses.  The testator orally approved the typewritten will in the presence of the witnesses, and the notary signed and stamped the will.  The testator
Read more

Goodstein v. Goodstein

Goodstein v. Goodstein ,  263 So.3d 78 (Fla. 4th DCA 2019) I started this blog in 2013, and this is the first time I have the opportunity to write about a case that I am actually involved in. This case involves a long-running dispute between the father of the decedent, the personal representative of the estate, and the decedent's children, the beneficiaries of the estate (the personal representative's grandchildren). The personal representative appealed a decision by the trial court which required all estate assets to be placed in a restricted depository. Restricted depositories have been common-place in Miami-Dade County for quite some time. Recently, South Palm Beach County has instituted as similar requirement. As a matter of course, all estates opened since the introduction of this policy have been required to place all assets in a restricted depository and assets may only be withdrawn with a court order. Here, the beneficiaries had concerns about their actions a
Read more

Cantero v. Estate of Caswell

Cantero v. Estate of Caswell , --- So.3d --- (Fla. 3d DCA 2019) This decision involves an appeal of a trial court's order striking a claim as untimely. The claimant argued that his claim was timely because he was a reasonably ascertainable creditor who was not served with notice. The Court disagreed. The claimant argued that the estate should have known about his claim based on several conversations he had with the personal representative and the personal representative's attorneys. He was claiming an ownership interest in the decedent's real property because he paid for the property and paid the mortgage premiums over 20 years prior to the decedent's death for a 5 year period of time while he has in a relationship with the decedent. In his calls to the personal representative, the claimant apparently only mentioned that he had left some car parts in the garage and never said anything about an ownership interest in the property. He argued that he inquired, &quo
Read more