FLORIDA GUARDIANSHIP ATTORNEY’S FEES
Lawyers in Florida who handle contested guardianships and inheritance disputes concerning Wills and Trusts frequently encounter issues regarding what law is to apply to fee dispute resolutions. As practitioners, it is always important to provide the correct and applicable law to the trial court so that the issue may be resolved appropriate through application of the correct law in existence at the time the dispute arose to the specific facts and circumstances leading to the fee dispute.
A case illustrating the importance of guiding the trial court with the correct law was issued by the Second District Court of Appeals in the Guardianship of Kay RC (Fla. 2nd DCA, case number 2D10-5956, March 9, 2012). This case involved a lawyer who represented the guardian of the ward. The guardian discharged the attorney and retained another law firm and the first lawyer applied for fees relating to the work he had performed in his representation of the ward. The guardian objected claiming that the lawyer was billing for administrative tasks and that the guardian could have performed the same work at no cost to the ward. The trial court granted the Petition but awarded fees for a lesser amount then requested.
Another Petition for Fees was submitted by the lawyer and the court held a hearing denying the Petition and cited a case from 1997 which held that an attorney was not entitled to recover fees for time spent in collecting fees from the ward or the ward’s errors because that work did not inure to the ward’s benefit and was not statutorily authorized. On appeal, the Second District Court of Appeals found that the trial court had erred in relying on a 1997 case that had been superseded by statutes first adopted in 2003 which authorized fees that are not substantially unreasonable. This statute codified at Florida Statute §744.108(2)(a)-(i) provides the criteria that the trial court should consider when determining fees for a guardian or an attorney.