The Role of the Court Appointed Attorney in an Orlando, Florida Guardianship Case
The role of the court-appointed attorney is evolving in the Orlando, Florida area. It was the contention of many attorneys that the court-appointed attorney’s duty was to zealously represent the alleged incapacitated person’s wishes along with advocating for their best interest. That has all changed since the 4th District Court of Appeals issued their ruling in Erlandsson v Erlandsson, 45 Florida Law Weekly D1102 (Fla. 4th DCA 2020); 296 So. 3d 431.
In that case, the court ruled that the alleged incapacitated person has a right to a court-appointed attorney that advocates the alleged incapacitated person’s wishes. The court held that the attorney for the alleged incapacitated person is an attorney who represents the alleged incapacitated person. The attorney shall represent the expressed wishes of the alleged incapacitated person to the extent it is consistent with the rules regulating The Florida Bar. Florida Statute 744.102(1). Representation of a client’s expressed wishes in a guardianship proceeding is thus required by section 744.102(1) Florida Statutes, in accord with Florida Bar Rules 4-1.2(a) and 4-1.14. The language of the statute clearly requires that a lawyer appointed in guardianship proceedings represents the expressed wishes and not necessarily the best interest of a prospective ward.
The Florida Bar Rules address the role of counsel where the client suffers from mental or physical incapacity. Florida Bar Rule 4-1.2(a) mandates that a lawyer must abide by a client’s decision concerning the objectives of representation and must reasonably consult with the client as to the means by which they are to be pursued. Moreover, Florida Bar Rule 4-1.14, which governs a client under a disability, provides that:
- Maintenance of Normal Relationship: When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
- Appointment of Guardian: A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.
If you have more questions regarding a Guardianship Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. You may also visit my website at: AnnMarieGildenLaw.com; and check me out on these other sites: Ann Marie Giordano Gilden on Facebook; Ann Marie (Giordano) Gilden on LinkedIn; and Ann Marie Giordano Gilden on AVVO and Lawyers.com.
This article is for informational purposes only; and it does not form an attorney client privilege.