Thorpe v. Myers, — So.3d —-, 2011 WL 2731937 (Fla. 2d DCA Jul 15, 2011)
In this case a 93-year-old ward had nine children who seemingly couldn’t agree that the sky was blue. After lengthy litigation, the trial court appointed a plenary guardian for the ward, who suffered from dementia. In separate appeals, the emergency temporary guardian and attorneys for two of the children appealed the court’s denial of their respective fee requests.
The 2d DCA held that the trial court’s complete denial of fees to the guardian was based on a misreading of F.S. 744.108(1), which requires that attorneys, but not guardians, demonstrate the “beneficial nature of services rendered” to the ward. Unlike those of attorneys, guardians’ services are presumed to benefit the ward. However, a circuit court may reduce the requested compensation to the extent that the guardian’s services were “unnecessary or unproductive.”
Not only was the legal basis for denying the guardian any compensation flawed, but so too was the factual basis, the 2d DCA found. It disagreed with the circuit court’s finding that the guardian’s services “were of minimal, if any[,] benefit to the Ward, and were intended to benefit [two of the Ward’s children] in the Petition for Emergency Temporary Guardianship.” Instead, there was “nothing in the record suggesting that [the guardian] was working for [the two children] in disregard of her obligation to act in the best interests of the Ward. . . . The guardian works in the interest of the ward under the supervision and control of the court, not at the behest of the person or persons who sought the appointment.”
As evidence to support that claim, the 2d DCA pointed out that the “circuit court actually extended [the guardian’s] tenure as emergency temporary guardian for another four months.” It would make little sense, the 2d DCA implied, for a guardian providing “minimal, if any, benefit” to be asked to continue her responsibilities.
The 2d DCA also addressed the circuit’s order denial of attorney’s fees and costs requested by the attorneys of the two children of the Ward who submitted the original petition for guardianship. As alluded to above, attorneys are entitled to “reasonable compensation” only to the extent that their services demonstrably benefit the ward.
The circuit court found that the two children’s attorneys did not provide any services for the ward. By an abuse of discretion standard, the 2d DCA acknowledged that some of the attorneys’ services amounted to “unproductive litigation over who would be appointed as guardian or other goals that did not benefit the Ward or her estate.”
2d DCA: When Are Guardians and Attorneys Entitled to Fees in Contested Guardianship Proceedings?