Right to counsel

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Legislation, Guardianship/Conservatorship of Adults - Ward

Upon a petition to determine whether a person is incapacitated (a predecessor step to guardianship),  Fla. Stat. § 744.331 provides that

 

(a) When a court appoints an attorney for an alleged incapacitated person, the court must appoint the office of criminal conflict and civil regional counsel or a private attorney as prescribed in s. 27.511(6). A private attorney must be one who is included in the attorney registry compiled pursuant to s. 27.40. Appointments of private attorneys must be made on a rotating basis, taking into consideration conflicts arising under this chapter.

 

(b) The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court.

 

(c) 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.

(d) Effective January 1, 2007, an attorney seeking to be appointed by a court for incapacity and guardianship proceedings must have completed a minimum of 8 hours of education in guardianship. A court may waive the initial training requirement for an attorney who has served as a court-appointed attorney in incapacity proceedings or as an attorney of record for guardians for not less than 3 years. The education requirement of this paragraph does not apply to the office of criminal conflict and civil regional counsel until July 1, 2008.

 

See also Fla. Stat. § 744.3725 (“Before the court may grant authority to a guardian to exercise any of the rights specified in s. 744.3215(4), the court must: (1) Appoint an independent attorney to act on the incapacitated person’s behalf, and the attorney must have the opportunity to meet with the person and to present evidence and cross-examine witnesses at any hearing on the petition for authority to act”); Fla. Stat. § 744.3031 (requiring appointment of counsel for emergency guardianship proceedings); Fla. Prob. R. 5.649(c) (“Within 3 days after a petition has been filed, the court shall appoint an attorney to represent a person with a developmental disability who is the subject of a petition to appoint a guardian advocate. The person with a developmental disability may substitute his or her own attorney for the attorney appointed by the court.”).  Counsel is also provided for review of the guardianship if contested.  Fla. Stat. § 744.464(2)(e). 

 

One of the Florida Court of Appeals has said that the failure to appoint counsel in such proceedings is reversible error.  Martinez v. Cramer, 121 So. 3d 580 (Fla. App. 2013) (citing In re Fey, 624 So.2d 770, 772 (Fla. App. 1993).

Appointment of Counsel: categorical Qualified: no