By: Teresa N. Phillips, Esq., ForsterBoughman
When a party initiates a guardianship proceeding, various legal fees and court costs are inevitably incurred. In Florida, guardianship proceedings have two steps, and each step involves attorneys and costs.
The first step is to determine if a person who is the subject of the petition (commonly referred to as a ward1) lacks legal capacity to take care of their own person or property. That is initiated with the filing of a petition to determine incapacity and such a petition can be filed by any “interested party”. This means you may find yourself in the middle of guardianship proceedings initiated by a third party.
The second part is the request to appoint a guardian. A ward must have a guardian appointed at the time of the incapacity determination unless the court has already determined the ward has no need for someone to manage their person or assets due to pre-planning or other circumstances. A guardian, once appointed, must be represented by counsel.
The ward will also have an attorney appointed to represent their interests. And the three-person committee that is appointed to evaluate the ward are entitled to compensation. There are also fees associated with the filing, background checks for any prospective guardian and costs for a bond for the guardian. This is in addition to any fees the petitioner and petitioner’s attorney incur. This is multiplied if the petitioner seeks temporary, emergency relief before the final incapacity hearing. It is not unusual for there to be $5,000 or more in attorney’s fees and various costs due and owing before a judge can even make a determination of capacity. Determining who bears the responsibility of these costs will depend upon multiple circumstances but there are various scenarios where an individual who is ultimately determined and declared to be capacitated, ends up bearing at least some of these costs.
Generally, a petitioner who files an action for incapacity that ultimately results in a finding of at least partial incapacity, will be entitled to an award of attorney’s fees and costs from the assets of a ward.2..The fees and costs of court appointed counsel, examining committee members and any appointed guardian will be paid from the ward’s assets as well. This does not even take into account the fees and costs the ward will incur if they decide to hire their own attorney to represent their interests throughout these proceedings, instead of relying upon court appointed counsel. All of the people involved who incur fees and costs are just one of many reasons guardianship proceedings are considered so costly to the ward and why people are encouraged to do pre-planning to help avoid the necessity of guardianship proceedings should they become incapacitated later in life.
But what happens when a person files an incapacity proceeding against you and the judge ultimately agrees with you at the final hearing that you are capacitated and court intrusion into your life is not necessary? Who pays the costs incurred?
If you are thinking the petitioner, you would be wrong. The person who files seeking a determination of capacity can only be held responsible for other parties’ costs associated with the proceedings if the Court determines the petition was filed in bad faith.3 Bad faith does not mean that the petitioner ultimately has his or her petition denied. This means the Court would have to find the petitioner had no real belief the ward was ever incapacitated and there was some other nefarious motive for the filing. This is a rather high standard to prove and such bad faith finding by Florida Courts s are extremely rare. The person who initiated a good faith albeit unsuccessful filing may ultimately be stuck with their own attorney’s fees and costs incurred to file the petition and participate in any hearings, but they cannot be made to pay for the attorney that was court appointed to represent the ward, the three-person evaluation committee, and the expert and other court costs the ward may have had to incur to defend themselves and prove their capacity in the incapacity proceedings.
But there is at least one scenario wherein you can be completely vindicated in incapacity proceedings, found to be fully capacitated and still be stuck with a significant bill of fees and costs to pay. If a petitioner alleges under oath a factual basis to believe a person is an immediate threat to their person or property, a judge can appoint a temporary, emergency guardian without notice or hearing to the alleged incapacitated person. Such emergency petitions have been granted based on allegations of things such as financial exploitation by a new love interest or due to the person refusing to take new prescribed medication. Once the emergency, temporary guardian is appointed, the petitioner, the temporary guardian and their counsel all have a legal basis for having their attorney’s fees and costs reimbursed from the ward’s assets.4
But what if at the final incapacity hearing, there is testimony that convinces the Court that there really was no exploitation, that the ward was aware of the financial relief he or she was providing to the new love interest and it was done out of affection and with a full understanding of the implications. And what of the person who refused to take new medications? After testimony, the judge could learn that the ward read up on the side effects and made an unusual but reasoned decision to forego the medication after weighing the pros with the potential cons. The judge may ultimately find no guardian is needed and enter an order finding the ward fully capacitated and suspending the temporary guardian’s powers. But who pays for the fees and costs incurred by that temporary guardian? Unless the petitioner acted out of bad faith or made false statements under oath to obtain the temporary guardianship appointment, the answer is the ward will ultimately have to pay for the fees and costs incurred.
The foregoing scenario illustrates why leaving yourself vulnerable to a guardianship petition by not taking effective and individualized pre-guardianship planning, can result in not only the emotional burden of going through what many describe as an agonizing proceeding but also the financial burden as well. For more information on how guardianships work, please keep coming back to this website or watch one of the informative webinars my firm has made and uploaded on guardianship related topics at https://tinyurl.com/FB-Seminars/.
1 Technically, an alleged incapacitated person should not be referred to as a ward until there has been a determination of incapacity but for simplicity of explanation in this article, I will use the word ward throughout to describe the subject of an incapacity and guardianship proceeding)
2 Section 744.108, Florida Statutes.
3 Section 744.3215(7)(c)(2), Florida Statutes.
4 In Re: Guardianship of Beck, 204 So.3d 143 (Fla. 2nd DCA 2016)