TIP 1: Discharge of the Court-Appointed Attorney: Most state statutes are vague on when and whether a court-appointed attorney is automatically discharged from service. Most practitioners assume the court-appointed attorney to be discharged upon the filing of the initial guardianship report. This is what most state guardianship statutes seem to indicate. This is not necessarily the case. For example, the Florida Statutes have stated that “[r]eview of the initial guardianship report and representation of the ward during an objection thereto, if any, shall be the appointed attorney’s final official action on behalf of the ward.” The use of the word “shall” seems to be a mandatory distinction that the court-appointed attorney’s job is done after reviewing and representing the ward for the initial guardianship report. However, a curious sentence follows: “Thereafter, the court-appointed attorney is no longer obligated to represent the ward.” This language may and has been read by judges to mean that the court-appointed attorney may represent the ward after the filing of the initial report. In some states, the discharge of the court appointed attorney (or an ad litem in some states) is at the pleasure of the court.
Do not assume, therefore, that the court-appointed attorney is automatically discharged at any point in the proceedings. This can be very significant, for example, over the issue of whether notice was properly given for a particular action later in the guardianship. This also becomes significant if you are the court-appointed attorney and have considered yourself to be automatically discharged but, in truth, can still be seen as having a duty and obligation to the ward.
If you are representing the ward, always file a termination of representation and discharge of counsel and have a discharge signed by the court. If you are representing the petitioner, seek a formal discharge of the ward’s court-appointed attorney.
TIP 2: Submit Fees Regularly: Depending upon your jurisdiction, your court may or may not have regulations regarding when to file for attorney’s fees. There are no rules governing when to file for attorney’s fees in most jurisdictions. If there is no rule, I find it best to file quarterly in most cases. Even if there is very little activity on the file, it is best to file the petition with the court on a regular schedule. Not only is this smart and efficient from a management perspective, but the clerks have an easier time of it as well. Moreover, for attorneys who let fees accumulate, it seems that some judges are more likely to slash larger petition than successive and timely smaller ones.
TIP 3: Consolidate Guardianships of Spouses: Whether or not spouses are determined incapacitated at the same time or whether one spouse comes later, having two separate guardianships can be very cumbersome. Expenses are increased when there are two files. There must be two accountings instead of one. There must be two withdrawal orders instead of one. Most everything is duplicated. Fees and costs are increased. In most jurisdictions, judges will allow you to consolidate the two cases.
A “motion to consolidate” accomplishes consolidation. This motion can be filed at any time after the second file is opened. In some jurisdictions, because of the way the clerk’s office assigns incapacity in guardianship case numbers, it is sometimes advisable to wait until after the second adjudication of incapacity. You can get more information on this by talking to your probate clerk’s office.
TIP 4: Direction to Restricted Depository: If you are in a jurisdiction which uses restricted depositories, it is good practice to write a letter to the financial institution, on behalf of the guardian, explaining what it means to have a restricted account. Each year, probably hundreds of depository accounts are improperly administered by the financial institution giving either too much access or not enough access to the guardian. Your letter to the restricted depository can inform the financial institution that this account is being set up by order of the court and that no monies may be accessed from the account until further order of the court. You can explain to them that when presented with a certified copy of a court order that they must honor it immediately or, if they have any questions, that they may call you first. Courts have held the attorney to be responsible if the depository is not set up correctly and the guardian runs off with the money. In most jurisdictions that regularly use depositories, the attorney is ordered to supervise the creation of the account. By sending this letter, you are not only furthering the interests of the guardianship but you are also protecting yourself from claims that the bank was not on notice.
TIP 5: Consider Simplified Accountings or Waiver of Accountings: In cases where there are no assets and there is identifiable and predictable income, it may not be necessary to file a full accounting. In many cases, guardians are filing accountings and expended great time and resources when it may not be necessary. When I speak to guardians, they are usually overjoyed to hear that they may able to do a simplified accounting or waive the accounting entirely. In many jurisdictions, when all assets of the guardianship estate are in designated depositories and the only transactions that occur in that account are interest accrual, financial institution service charges and approved distributions, the guardian may elect to file a “simplified accounting.” A simplified accounting might consist of the year-end statement from the bank account and a statement by the guardian that the guardian has custody and control of the ward’s property. Some judges have been known to waive the accountings all together in appropriate circumstances.
TIP 6: Substitution of Counsel for Ward: If you are retained by an AIP or ward to be the ward’s attorney in a guardianship proceeding, the court most likely has already appointed an attorney. In most states, the court must appoint an attorney for all unrepresented alleged incapacitated persons and some jurisdictions require court appointment even if the AIP or guardian comes with counsel. Here we see the tension between “right to counsel” and an inference or allegation of incapacity. Many jurisdictions allowing for the court selection and appointment of counsel balance this by stating, as in the language used by Florida, that “the alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court.” This provides fodder for serious problems in guardianships.
A True Tale: Mrs. B lived in the Orlando area for approximately 30 years. Her sister resided in a nursing home in Broward county. Mrs. B’s son picks Mrs. B up in Orlando and drives her down to “visit” her sister in Broward county. Son tells Mrs. B that she can stay at the assisted living facility just as if it were a hotel and then leave whenever she was ready. Son then dropped Mrs. B off at the facility, told the staff that nobody was to be able to speak with her except him (and intimated that other family members were out to get her) and son then drove back to Orlando and cleaned out Mom’s belongings and cash and put it in his trunk. Three or four days later, Mrs. B realizes that she is almost, but not quite, a prisoner at the facility and so she calls her brother to come and pick her up. Brother drives down from Orlando and rescues Mrs. B, bringing her back to her apartment. Son files for guardianship in Broward county and the judge appoints an attorney for Mrs. B. Mrs. B seeks counsel in Orlando and Orlando counsel refers her to me. I file a substitution of counsel pursuant to Section 744.331 which clearly states that the ward may substitute her own attorney for the attorney appointed by the court. I file a motion to dismiss the guardianship based on improper venue. The court appointed attorney takes the position that she has not been discharged and will therefore continue to function as attorney. I tell the court-appointed attorney that if she makes an appearance in this case that she may be submitting our client to the jurisdiction of this court, which jurisdiction may be improper to begin with. We go to a hearing on the determination of incapacity and I limit my appearance to the motion to dismiss. The court-appointed attorney makes a general appearance disregarding my caution. I move the court to recognize me as the ward’s choice of counsel and the court orders that both and I and court-appointed counsel stay on to represent the alleged incapacitated person. The judge reasoned that he does not know whether the client is capable of making a decision as to whom should represent her and that he would therefore retain both court-appointed counsel and the alleged incapacitated person’s own choice. The case was eventually dismissed for lack of prosecution but the AIP ended up having to pay two attorneys. Had we appealed, we might have prevailed. By the way, there was not even a shadow of doubt in my mind that the AIP was 100% competent. Take the case of Holmes v. Burchett, 766 So.2d 387(Fla. 2d DCA 2000). In Holmes, the court held that an evidentiary hearing must be held to determine whether the alleged incapacitated person is capable of contracting with counsel. Absent this evidentiary hearing, the alleged incapacitated person must be presumed competent to retain his or her own counsel. I noted, in my argument to the court, that Section 744.331 had been amended by our legislature to remove language that would have allowed the judge to “sign off or not sign off” on the alleged incapacitate person’s choice of counsel.
Immediately upon being retained by an alleged incapacitated person, file a notice of substitution of counsel in the court and serve it upon the court-appointed attorney and the attorney for the petitioner. If the court does not allow an automatic substitution, object every time court-appointed attorney files a petition or opens his or her mouth in court. In lieu of constant objections, during a lengthy evidentiary hearing, you can request the court enter a standing objection so long as you carefully define its terms.
TIP 7: Petition for Approval to do Medicaid Planning: If you or another attorney have been approached by the guardian to advise the guardian on long-term care planning, it is wise to get court approval even prior to accepting representation. Even though a guardian may hire an attorney without leave of court, it is advisable to file a petition for authorization to retain Elder Law attorney. The petition should explain that this is a request only for the court to authorize the guardian to retain you and to pay you a fee for your services and that, after you are done advising the guardian as to available options, the guardian will petition the court prior to engaging in any activity assuming same is required or advised in your jurisdiction. If unsure, and most state statutes cry out with uncertainty, petition the court.
TIP 8: Help to Educate Guardians: The 8-hour course and the 40-hour course are less than perfect in most jurisdictions. An effort has been underway for the last four years to provide some statewide uniformity. Some jurisdictions have excellent courses while others are woefully inadequate. The law and the judges look to the attorney, rightly or wrongly, to help train the guardian. Consider sending an opening letter to every guardian which goes through all of the necessary tasks and especially dwells upon the use of funds and accountings. Consider also doing a workshop in your office if you have a lot of guardianship cases. You can have all of the guardians show up together once every quarter or however often you wish and in that way you can spend one to two hours very efficiently. The guardians also benefit from the camaraderie.
TIP 9: “Notice” Everyone: Chapter 744 and the probate code do not always make clear who should receive notice of what pleadings. Other attorneys often ask me whether I think notice should be made in a given situation. My general rule is to notice everyone. If in doubt, send that person notice. The obvious reason is that a failure to give this notice can reverse any advances you have achieved on behalf of your client and can sometimes cause major reversals. It is true that there are times where notice is unnecessary and where unnecessary notice may open a Pandora’s box and these instances may be the exceptions. In most cases, however, notice everyone.
TIP 10: Develop a stable of guardians: There will be need for professional guardians when family members are not available or do not suffice. Finding the right guardian at time of need is difficult or impossible. Some will have a financial background; some a nursing background; some a social work background but few will have all the qualities needed in every case. For this reason, develop relationships with professional guardians or those who could be professional guardians before you need them. They can help you and your client at time of need and they may also become nice sources of referrals.