I recently reported on the Erlandsson v. Erlandsson decision and how the 4th DCA’s opinion highlighted the sometimes gut wrenching ethical challenges attorneys face when representing an adult client who’s cognitively impaired in a way that is clearly affecting his or her decision making. Enrique Zamora, one of South Florida’s premier elder law attorneys, graciously agreed to share his thoughts on the case.

[1] Can you give us some background on your experience as court-appointed counsel in contested guardianship proceedings, both as a practitioner and as an educator?

I have been practicing Elder Law for 35 years, even though the Elder Law Section of the Florida Bar was established in 1991. My areas of practice are mostly concentrated in Probate and Guardianship both administration and litigation.

I have been adjunct professor teaching Elder Law at St Thomas Law School since 2004 and Guardianship Law since 2015. I taught 2 semesters (2017 -2018) of Elder Law at the University of Florida Levin College of Law. The weekly commute to Gainesville finally got to me and I decided to quit.

I have been representing AIP’s [“Alleged Incapacitated Persons”] as court appointed attorney for over 25 years. I could write a book on some of my more interesting cases.

I have been the instructor for examining committee members through FSGA [“Florida State Guardianship Association”] sponsored conferences for over 10 years. I’m currently the designated instructor for all examining committee members in Miami-Dade County.

I have also been a speaker on guardianship topics for the Elder Law Section of the Florida Bar for many years.

[2] In the Erlandsson case the court-appointed counsel clearly believed a plenary guardianship was in the AIP’s best interest. If you were court-appointed counsel in this case and you too agreed a plenary guardianship was in the AIP’s best interest, as a practical matter what two or three actions would you have taken before the hearing to possibly broker a compromise of some sort?

I’m a firm believer that mediation is a very useful, but underutilized tool in resolving incapacity/guardianship issues. I also keep in mind that I’m an advocate for my  AIP client and NOT a Guardian ad Litem. Therefore, [my personal opinion of what is in] the best interest of my client is not controlling. My client’s instructions and objectives are my primary source of guidance during the incapacity proceedings. Having said that, there is a clear limit as to how far I can try to follow my client’s objectives, as Chapter 744  clearly states my representation is limited by the ‘extent that it is consistent with the rules regulating the Florida Bar’(744.102(1)).

If mediation doesn’t work, try it again!!. I have  participated in mediation up to 3 times in more than one case.

Even though it is difficult to tell from the opinion in the Erlandsson case, it appears that the AIP was reluctant to take her psychotropic  medication as well as not controlling her diabetes, but it also appears that there was some level of capacity on the part of the AIP. I have successfully convinced several of my  clients to accept the medication being recommended in many Baker Act cases. Therefore, trying to communicate the need to take her medication would have been a possible solution. Of course in this type of cases that solution tends to be short-lived, as usually another crisis arises sooner rather than later.

[3] What advice do you have for court-appointed counsel representing an AIP who is able to communicate just fine, but the AIP is acting irrationally?

My advice if your client is acting irrationally is to look up the meaning of irrational in a  dictionary. Don’t try to apply your standards of what is rational and try to put yourself in your client’s shoes, especially if they are elderly and not in good health. A person’s view of life changes as you see the end coming!!!. But if after doing all that ,you still think your client is acting irrationally, limit your representation as to be consistent with the rules regulating The Florida Bar. Wasting money in discovery with little chance of success is not a recommended strategy.

[4] In your opinion, is a change in our guardianship statutes or ethics rules (or both) needed to ensure disabled adult AIP’s are properly represented in contested guardianship proceedings, or is it simply a matter of better education? And why?

It is always a difficult task to represent a client with diminished capacity, but it can be done. However, in my opinion attorneys need more guidance as to how to handle representation of clients  with diminished capacity. We need to revisit Rule 4-1.14 of the Florida Bar and see how it can be modified to address specifically [the] representation of a client in [an] incapacity proceeding in particular and with diminished capacity in general.

The RPPTL and the Elder Law Sections  are working on both the statutes and the rule. A new Chapter 745 is coming to replace 744 and a revised 4-1.14 is also in the works. Whether these changes address all concerns remains to be seen.

[5] From your perspective as a practitioner, do you have any parting words of wisdom for judges in these cases?

My advice to judges is be patient. Incapacity proceedings can be very stressful on everyone, including the judges. In addition, don’t be paternalistic. Elderly people want to be independent and value their freedom. I will never forget one of my clients during an incapacity hearing, who told the judge in a very convincing and forceful way ‘Judge I need a guardian like I need a hole in my head’. Who can argue with that???