Thorpe v. Myers, — So.3d —-, 2011 WL 2731937 (Fla. 2d DCA Jul 15, 2011)

In this case a 93-year-old ward had nine children who seemingly couldn’t agree that the sky was blue. After lengthy litigation, the trial court appointed a plenary guardian for the ward, who suffered from dementia. In separate appeals, the emergency temporary guardian and attorneys for two of the children appealed the court’s denial of their respective fee requests.

Guardian’s Fees:

The 2d DCA held that the trial court’s complete denial of fees to the guardian was based on a misreading of F.S. 744.108(1), which requires that attorneys, but not guardians, demonstrate the “beneficial nature of services rendered” to the ward. Unlike those of attorneys, guardians’ services are presumed to benefit the ward. However, a circuit court may reduce the requested compensation to the extent that the guardian’s services were “unnecessary or unproductive.”

There are some exceptions to the general rule entitling a guardian to payment for services rendered, but these exceptions are limited. We briefly mention three such exceptions. First, a guardian cannot expect to be compensated for services rendered outside the scope of his or her appointment. In re Guardianship of Jansen, 405 So.2d 1074, 1077 (Fla. 2d DCA 1981); Poling v. City Bank & Trust Co. of St. Petersburg, 189 So.2d 176, 182–83 (Fla. 2d DCA 1966). Second, a guardian guilty of theft or other breach of duty may forfeit the right to compensation. See Am. Surety Co. of N.Y. v. Hayden, 112 Fla. 17, 150 So. 114, 121 (1933). Third, on occasion, usually when a family member is appointed, a guardian may agree to serve without compensation. Here, there is no exception to the statutory requirement that guardians be compensated for their services.

In order for an attorney to be awarded fees from the ward’s estate under section 744.108(1), the attorney’s services must benefit the ward or the ward’s estate. See Butler, 898 So.2d at 1141. The clause in section 744.108(1) requiring the demonstration of the beneficial nature of the services rendered applies to attorneys, not guardians. Thus, under the statutory language, a guardian is not required to demonstrate that his or her services conferred a benefit on the ward or the ward’s estate as a prerequisite for obtaining a compensation award. The statute appears to presuppose that a guardian’s services benefit the ward or the ward’s estate. Cf. Essenson v. Lutheran Servs. Fla., Inc. (In re Guardianship of King), 862 So.2d 869, 870 (Fla. 2d DCA 2003) (“Florida cases in which fees have been denied to court-appointed representatives appear to be only those in which he or she was found to have exceeded the scope of appointment.” (citing Jansen, 405 So.2d at 1077)).

It follows that the circuit court reached an incorrect legal conclusion in ruling that Ms. Thorpe was required to demonstrate that her services as emergency temporary guardian were beneficial to the Ward or the Ward’s estate as a condition of receiving court-awarded compensation. The statutory scheme presumes that the services of guardians provide a benefit. To the extent that the services of a guardian are unnecessary or unproductive, the circuit court may reduce the requested compensation based on the factors listed in section 744.108(2) but may not deny compensation altogether.

Not only was the legal basis for denying the guardian any compensation flawed, but so too was the factual basis, the 2d DCA found. It disagreed with the circuit court’s finding that the guardian’s services “were of minimal, if any[,] benefit to the Ward, and were intended to benefit [two of the Ward’s children] in the Petition for Emergency Temporary Guardianship.” Instead, there was “nothing in the record suggesting that [the guardian] was working for [the two children] in disregard of her obligation to act in the best interests of the Ward. . . . The guardian works in the interest of the ward under the supervision and control of the court, not at the behest of the person or persons who sought the appointment.”

As evidence to support that claim, the 2d DCA pointed out that the “circuit court actually extended [the guardian’s] tenure as emergency temporary guardian for another four months.” It would make little sense, the 2d DCA implied, for a guardian providing “minimal, if any, benefit” to be asked to continue her responsibilities.

Attorneys’ Fees:

The 2d DCA also addressed the circuit’s order denial of attorney’s fees and costs requested by the attorneys of the two children of the Ward who submitted the original petition for guardianship. As alluded to above, attorneys are entitled to “reasonable compensation” only to the extent that their services demonstrably benefit the ward. Here’s how the 2d DCA summarized the law on this point:

Under section 744.108(1), “an attorney is entitled to receive a reasonable attorney’s fee for professional services rendered and reimbursement of costs incurred for the benefit of the ward; payment of reasonable compensation is mandatory.” Price v. Austin, 43 So.3d 789, 790 (Fla. 1st DCA 2010). Under the statute, “the probate court is not ‘at liberty to award anything more or less than fair and reasonable compensation for the services rendered or monies expended in each individual case.’” Lutheran Servs., 978 So.2d at 890 (quoting Lewis v. Gramil Corp., 94 So.2d 174, 176 (Fla.1957)). However, the attorney’s entitlement to payment of reasonable fees and costs is subject to the limitation that his or her services must benefit the ward. King v. Fergeson, Skipper, Shaw, Keyser, Baron, & Tirabassi, P.A., 862 So.2d 873, 874 (Fla. 2d DCA 2003) (Villanti, J., concurring specially); Butler, 898 So.2d at 1141.

The circuit court found that the two children’s attorneys did not provide any services for the ward. By an abuse of discretion standard, the 2d DCA acknowledged that some of the attorneys’ services amounted to “unproductive litigation over who would be appointed as guardian or other goals that did not benefit the Ward or her estate.”

But some work did make the ward better off. Were it not for the guardianship proceedings initiated by the attorneys, there would have been no determination of incapacity, and no appointment of a plenary guardian, each of which seemed to have been in the ward’s best interest. Accordingly, the 2d DCA remanded to the circuit court with instructions to “make an appropriate award of fees and costs.”