One of the most confoundingly difficult challenges we all face as trusts and estates attorneys is what to do if a client’s cognitively declining or otherwise impaired in a way that is clearly affecting his or her decision making. The two most common scenarios for how this dilemma plays out in real life are: (i) elderly estate planning clients slowly sliding into dementia, and (ii) cognitively impaired adults in contested guardianship proceedings.

The core question in all of these cases is the same: am I my client’s advocate or guardian? In other words, do I act in what I believe to be in my client’s “best interests” (i.e., as his guardian), or do I act in furtherance of his “expressed interests” (i.e., as his advocate)? Unfortunately, the ethics rule we have in Florida for dealing with disabled clients, Florida Bar Rule 4-1.14 (which is based on ABA Model Rule 1.14), isn’t much help. Under this rule, we’re told to do both?! Here’s the text of the Florida rule:

(a) Maintenance of Normal Relationship. When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) Appointment of Guardian. A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.

This rule has long been the subject of criticism by academics and practitioners alike. Here’s how Formal Opinion 95-002, a California ethics opinion, summarized the “problems” rule 1.14 “poses for the attorney representing older clients”:

Various critiques “of the Model Rules [have pointed] out the seemingly insurmountable problems that arise from the Rules’ ambivalence and ambiguity regarding the basis of the attorney-client relationship when the attorney suspects her client is operating under a disability.” [Clients with Destructive and Socially Harmful Choices – What’s an Attorney to Do?: Within and Beyond the Competency Construct.]

The crux of the problem presented by Model Rule 1.14 is that under subsection (a) the attorney-client relationship remains intact with the client as “the boss” instructing the attorney to carry out her stated wishes, however, once the client’s mental impairment is so severe she can’t discern what is in her best interest, the attorney has no authority to act on behalf of the client by seeking a conservatorship as allowed in subsection (b).

Further, allowing the attorney to institute conservatorship proceedings “on behalf of the client” places the attorney in the position of violating both her duty of loyalty and her duty of confidentiality to the client. The attorney must necessarily divulge his observations of the client’s behavior and/or client secrets in the process of instituting conservatorship proceedings. If an attorney is allowed to institute conservatorship proceedings, any elderly client may be hesitant to solicit the services of an attorney out of fear that the attorney’s observations or interpretations of the client’s statements or decisions would eventually lead to conservatorship and institutionalization. The elderly client would have lost the assurance of confidentiality, which is an essential part of the attorney-client relationship.

So what are we, advocates or guardians?

The advocate v. guardian tension is built into rule 4-1.14’s DNA. But what if this internal conflict were eliminated by statute? Can we ethically advocate for a disabled adult’s “expressed wishes” even if we in good faith believe a guardianship really is in her “best interest”? That’s the question addressed in the 4th DCA’s Erlandsson opinion discussed below.

Erlandsson v. Erlandsson, 296 So.3d 431 (Fla. 4th DCA May 6, 2020):

This case involved an adult woman who was reported to be “schizophrenic and extremely paranoid.” Her parents “filed a petition for limited guardianship seeking to remove their daughter’s rights specified in sections 744.3215(2) and (3), Florida Statutes (2019), except for her right to vote and right to marry. The petition alleged that [she] was not attending to her basic medical and psychiatric needs and was unable to manage her own finances.”

Daughter strenuously contested her parents’ attempt to impose a guardianship over her. The court appointed counsel for her defense, as required by F.S. 744.331(2)(b). In guardianship proceedings the internal conflicts inherent to Florida Bar Rule 4-1.14 are eliminated by F.S. 744.102(1), which contains the following directive:

The attorney shall represent the expressed wishes of the alleged incapacitated person to the extent it is consistent with the rules regulating The Florida Bar.

So we have a statute that says when you’re court appointed counsel for an adult in a contested guardianship proceeding, you’re required to act in accordance with your client’s “expressed interests” (i.e., be her advocate). On the other hand, Florida Bar Rule 4-1.14 tells us attorneys can ethically seek the appointment of a guardian for your client if you believe it’s in her “best interests”.

Can we ethically advocate for a disabled adult’s “expressed interests” even if we in good faith believe a guardianship really is in her “best interest”? YES

At the final hearing, ignoring her client’s objections, but presumably acting in what she believed to be her client’s best interests, court-appointed counsel advocated against her client’s expressed wishes and in favor of a plenary guardianship. Here’s how the 4th DCA summarized what happened at the hearing:

At the hearing, appointed counsel briefly cross-examined one witness, but did not object to the admission of evidence and did not cross-examine the other witnesses. Appellant attempted to cross-examine a witness herself, but was prohibited from doing so. Appointed counsel declined to offer any evidence on Appellant’s behalf, and Appellant complained, “I think my attorney should have some evidence and things in my favor.” Finally, appointed counsel argued in favor of a plenary guardianship, against Appellant’s clear and express wish that no guardianship be established.

Not surprisingly, the trial court ordered a plenary guardianship.

Did well-meaning court appointed counsel make the right call? Nope. Daughter was deprived of the type of legal representation (read advocacy) guaranteed by F.S. 744.102(1). Which means she gets a do over. So saith the 4th DCA:

Section 744.102(1) requires that an appointed attorney “shall represent the expressed wishes of the alleged incapacitated person to the extent it is consistent with the rules regulating The Florida Bar.” The statute manifests an intent to ensure that an alleged incapacitated person’s voice and wishes are heard and considered. While counsel no doubt believed that Appellant’s physical and mental conditions required a guardianship, she still was obligated to represent her client’s expressed wishes rather than preventing her from expressing her views.

“[E]ven if an attorney thinks the guardianship would be in the client’s best interest, the attorney whose client opposes guardianship is obligated … to defend against the guardianship petition.” Vicki Gottlich, The Role of the Attorney for the Defendant in Adult Guardianship Cases: An Advocate’s Perspective, 7 Md. J. Contemp. Legal Issues 191, 201–02 (1996) (emphasis added). In forcing Appellant to go forward with a lawyer advocating for what counsel perceived to be her client’s “best interests,” rather than the client’s “expressed interests,” the trial court disregarded Appellant’s claims of a conflict of interest, and violated section 744.102(1), Florida Statutes. We therefore reverse the order below establishing a permanent guardianship and remand with directions to appoint conflict-free counsel to represent Appellant at a new hearing on the petition for guardianship.

But what about Florida Bar Rule 4-1.14, which tells us attorneys can ethically seek the appointment of a guardian if you believe it’s in your client’s best interests? Wasn’t court-appointed counsel doing exactly what the ethics rule says she was supposed to do? Yup. But this rules doesn’t apply in contested guardianship proceedings. So saith the 4th DCA:

We do not read [Florida Bar Rule 4-1.14] to entitle appointed counsel in a guardianship proceeding to counter her client’s express wishes not to have a guardian appointed. Such a reading would conflict with section 744.331(2)(b).

So what’s the take away?

First, it’s not an all or nothing proposition. Zealous advocacy doesn’t mean you can’t counsel your client to accept some form of compromise that preserves his or her autonomy while also providing the care and protection of a limited guardianship. It also doesn’t mean you ignore clear signs of reduced or questionable competence. Which is all to say none of this is easy.

There are plenty of resources with practical advise for practitioners serving as court-appointed counsel in one of these cases. A good example is a 2002 Stetson Law Review article entitled Role of the Attorney for the Alleged Incapacitated Person. Here’s an excerpt:

Defending an alleged incapacitated person does not mean that all of an attorney’s usual resources are not in play. The attorney may use any of the tools in his or her arsenal to achieve a favorable settlement for the client or to limit the guardianship to the least-restrictive alternative.

When the attorney has no doctor’s reports, favorable testimony, or any other evidence to support the client’s position, one of the best things to do is bring the client to the hearing so that the client may speak to the judge. Some clients want this opportunity to make his or her case, believing that if the judge heard the client, the judge would rule in his or her favor.

Second, if your client is dead set against any level of guardianship, no matter how limited, the right thing to do is advocate for that position and trust in the process. Here again from Role of the Attorney for the Alleged Incapacitated Person:

Although  the  attorney  for  the  alleged  incapacitated  person may  be  inclined  to  judge  the  client’s competency, the court must determine competency based on clear and convincing testimony. The attorney’s way becomes clearer if he or she treats this client and case as any other. The attorney, even with little or no guidance from the client, can ensure that:

  • there is no less restrictive alternative to guardianship;
  • proper due-process procedure is followed;
  • the  petitioner  proves  the  allegations  in  the  petition  by  clear and  convincing  evidence,  if  that  is  the  standard  in  the jurisdiction;
  • the proposed guardian is a suitable person to serve; and
  • if a guardian is appointed, the order leaves the client with as much autonomy as possible.

When the attorney assumes this role, the client receives the due-process protection promised him or her by the Constitution. He or  she  has  a  zealous  advocate  who  can  speak  knowledgeably for  the  client,  put  the  client  on  the  stand  if  the  client  is  willing, cross-examine expert witnesses, ensure that the evidence proves incompetency  by  clear and  convincing  evidence,  ensure that the guardian  is  fit  to  handle  the  tasks  of  being  a  guardian,  and encourage  the  court  to  impose  the  least-restrictive guardianship possible,  so  that  the  autonomy  of  the  person  alleged  to  be incapacitated is left with all the powers he or she has previously managed.