Guardianship Attorneys’ Fees and the Benefit to the Ward
February 18, 2021
Attorneys’ fee awards in guardianship cases are governed by Florida Statute 744.108, allowing for attorney fees rendered for services provided to either a ward or to the guardian of a ward. This statute provides, in relevant part:
744.108 Guardian and attorney fees and expenses.
A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.
The allowance for attorneys’ fees associated with services on behalf of the ward has been carefully construed and analyzed by Florida’s appellate courts. In In re Guardianship of Beck, 204 So. 3d 143 (Fla. 2d DCA 2016), the Second District explained that even a person subject to an emergency temporary guardianship is considered a ward, having found no authority to the contrary. The Second District held that “in the context of an emergency temporary guardianship, the emergency temporary guardian is a guardian and the subject of the guardianship is the ward for purposes of section 744.108(1)”. Id. at 151. Therefore, the trial court erred in its determination that counsel to the emergency temporary guardian was not entitled to fees and costs because a permanent guardian was not appointed, and remanded the matter to the trial court to determine what fees and costs were compensable to counsel. Merely because the ward died before his capacity was judicially determined and a guardian appointed was not a reason to deny the request for fees; as soon as the emergency temporary guardian was appointed, the alleged incapacitated person was a “ward” for purposes of the statute and for purposes of applying Fla. stat. 744.108(1).
The facts were different than those in In re Guardianship of Klatthaar, 129 So. 3d 482 (Fla. 2d DCA 2014), which the Beck court found inapplicable. The trial court in Klatthaar had denied the request for appointment of an emergency temporary guardian, and the alleged incapacitated person died before the trial court’s determination of whether to appoint a guardian. Since no guardianship was established, the Klatthaar court determined that Fla. Stat. 744.108 was not applicable.
Whether serving as counsel for a ward, or counsel for a guardian of a ward, Fla. Stat. 744.108 allows for your fees if you are rendering services to that ward. Reviewing the criteria for the award of attorneys’ fees and distinguishing your services in a guardianship is key to the attorneys’ fees award.