WARD HELD TO HAVE A VIABLE AND LEGALLY RECOGNIZABLE CAUSE OF ACTION AGAINST AN EMERGENCY TEMPORARY GUARDIAN’S ATTORNEY WHO ALLEGEDLY TOOK ACTION KNOWINGLY ADVERSE TO THE WARD

Posted on June 26, 2015

In Saadeh v. Connors, 2015 Fla. App. LEXIS 9575 (Fla. 4th DCA 2015), the Fourth DCA found that the trial court erred in granting an attorney for an emergency temporary guardian summary judgment in the ward’s professional negligence action against her because the ward had a viable and legally recognizable cause of action against the guardian’s attorney. The ward was the apparent intended beneficiary of the services of the guardian’s attorney.

Mr. Saadeh (“Appellant”) was a wealthy, older man. After his wife passed away, a relative introduced him to a younger woman, to whom he loaned money. This alarmed his adult children, and they contacted attorney Colette Meyer (“Appellee”) who worked with a professional Guardian, Deborah Barfield (“Guardian”). The Guardian filed an incapacitation petition, attaching a neurologist’s report diagnosing Appellant with “dementia, probably Alzheimer’s.” After a hearing, the court appointed the Guardian because of an “emergency.” Appellee then became the emergency temporary Guardian’s attorney. The court-ordered duration of the temporary Guardianship was ninety days, pending a full hearing on incapacity. Three days after the Guardian’s appointment, and after two members of the examining committee submitted reports finding Appellant competent, the Guardian’s attorney and Appellant’s court-appointed attorney submitted to the court an agreed order to ‘settle’ the guardianship, agreeing that Appellant would execute a trust in lieu of a plenary guardianship. The agreed order provided that Appellant would execute the required trust within seven days, and that all pending incapacity proceedings were dismissed.

The trial court never dismissed the underlying emergency temporary guardianship, and the parties and the court continued to act as though the subject guardianship proceedings had never been dismissed. Appellant was found competent again by a newly-appointed examining committee, and the incapacity proceedings appeared to have come to an end. The litigation continued though as Appellant sought an order from the trial court setting aside the establishment of the trust originally required by the agreed order to “settle” the guardianship. The trial court agreed with the Appellant and entered a summary judgment setting aside the trust.  This ruling was affirmed in an earlier appeal; Jasser v, Saadeh, 97 So. 3d 241 (Fla. 4th DCA 2012).

In 2010, Appellant brought suit against the Guardian’s attorney (Appellee), the Guardian, and Appellant’s court-appointed attorney. In count III of his complaint, Appellant pled a count of professional negligence and breach of duty against the Appellee, which was the primary issue before the Fourth DCA.

Appellant alleged that the Guardian’s attorney represented the Guardian while she was acting as a court-appointed emergency temporary guardian for Appellant. The Guardian, Appellant’s court-appointed attorney, and the Guardian’s attorney agreed that Appellant would execute a trust in return for the dismissal of the incapacity proceedings. They engaged the services of an attorney to draft the irrevocable trust document. The Guardian’s attorney and Appellant’s children met with Appellant in an attempt to pressure him to sign the document which created the trust. The Guardian’s attorney was aware that Appellant was elderly, lacked a formal education, and spoke English as a second language; yet, she advised Appellant regarding the mechanics of the trust. She led Appellant to believe that he would maintain control of the trust and its contents, and would be able to make decisions regarding the trust. Although Appellant initially refused to sign the document, he eventually gave in to the pressure and signed the trust. Afterward, Appellant (the Ward) discovered that the trust was irrevocable and had actually granted all trust control to his adult children. The Guardian’s attorney failed to advise Appellant of the significant negative tax consequences of establishing such a trust.

Appellee moved for summary judgment, arguing that there was no privity of contract between her and Appellant.  Thus, she owed no duty directly to Appellant. She also argued that Appellant’s interests were adverse to the interests of his children and the Guardian. After a hearing, the court granted summary judgment in favor of the Guardian’s attorney, rejecting the argument that Appellant was an intended beneficiary. The court noted that Appellant’s court-appointed attorney invited the Guardian’s attorney to speak to Appellant, and it compared this situation to a criminal defense attorney and his client engaging in plea negotiations with a prosecutor. The court also relied on Section 744.331(2)(c), Fla. Stat., which precludes an attorney for the alleged incapacitated person from serving as either the guardian or the attorney for the guardian. The issue for the Fourth DCA to determine was whether the attorney for the emergency temporary Guardian owed a duty to the alleged incapacitated person under a third party beneficiary theory.

The Fourth DCA noted that, even though there is no lawyer-client relationship established, the attorney for the emergency temporary guardian owes a duty to the temporary ward. The Fourth DCA cited Rushing v. Bosse, 652 So. 2d 869 (Fla. 4th DCA 1995) (an adoption case) in support. The Fourth DCA noted that in the subject case, like in Rushing, the proceedings are rooted in a Florida statute that involves the protection of incapacitated persons. Chapter 744, Florida Statutes, governs guardianship proceedings. Appellant was the apparent intended beneficiary of the guardian’s attorney’s services. They stated that “[i]t would be antithetical to suggest that a guardian–appointed for the sacrosanct reason of providing protection to the ward and at the ward’s expense–could ever take any action which would knowingly be adverse to the alleged incapacitated person.” (Emphasis supplied)  The Fourth DCA relied on an amicus brief provided by the Real Property Probate & Trust Law Section of the Florida Bar, which agreed with an Attorney General’s opinion where this duty of care was explained. The Fourth DCA found that the temporary ward was both the primary and intended beneficiary of his estate. While the issue of whether there was a breach of duty which caused damages remained to be determined, the Fourth DCA held that the trial court erred in granting the ETG’s attorney summary judgment in the ward’s professional negligence action because the Appellant had a viable and legally recognizable cause of action against the Guardian’s attorney. The Fourth DCA therefore reversed and remanded.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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