Florida Woman Chooses Own Lawyer In Guardianship Action


When an individual becomes incapacitated, and is no longer able to handle their own finances or make medical or personal decisions, an interested person may file a petition with the local court for appointment of a guardian and/or conservator. In most states (including Arizona), the court will promptly appoint an attorney to represent the allegedly incapacitated person. The role of that court-appointed attorney should be to advocate for the client’s wishes, even though the evidence of need for assistance may be evident.

When Lutheran Services Florida filed for a guardianship (of the estate—what would be called conservatorship in many other states) on Babette Holmes, they alleged that she was completely unable to understand her finances or the documents she was signing. An attorney, Charla McNally Burchette, was appointed to represent Ms. Holmes.

But Ms. Holmes had other ideas. She wanted to choose her own attorney, and so she contacted Sarasota lawyer John Persse, who agreed to represent her. Mr. Persse secured Ms. Holmes’ signature on the appropriate form and filed it with the court, expecting to take over as her attorney in the guardianship proceeding.

Having a prospective ward hire her own attorney is uncommon, and Ms. Burchette, the appointed lawyer, apparently didn’t think Ms. Holmes had sufficient understanding of what she was doing to even make the selection. She asked the court to order that the hiring of Mr. Persse was ineffective because of Ms. Holmes’ mental limitations, and to confirm that she was Ms. Holmes’ lawyer.

After reading the pleadings (but without taking any evidence), Judge Andrew Owens agreed. He ordered Mr. Persse to cease his attempts to represent Ms. Holmes, based on his finding that she was incapable of selecting her own counsel. Ms. Holmes and Mr. Persse appealed.

The Florida Court of Appeals reversed Judge Owens’ holding. The appellate judges pointed out that no court decision had yet determined Ms. Holmes to be incapacitated, and that there is a presumption that everyone has capacity to enter into their own contracts. In this case, since Judge Owens had taken no testimony about Ms. Holmes’ ability to contract, there was no way to overcome that presumption and her selection of counsel was allowed to stand. Holmes v. Burchette, August 9, 2000.

The same result would probably be reached under Arizona law, though it would be unlikely to require action by an appellate court. Courts are usually supportive of an individual’s right to be represented by counsel of choice. Furthermore, even a marginally competent person who is represented by an attorney he or she selects is much more likely to believe that the court process was fair.

The result in Ms. Holmes’ case is also consistent with another case recently reported in Elder Law Issues. In July we reported on the case of Sonny Lee, whose Maryland attorney decided that she should recommend that a guardian be appointed for her client despite his objections. The Maryland Court of Special Appeals ordered another hearing, and directed that Mr. Lee’s lawyer had a duty to advocate for his wishes (Lawyer For Proposed Ward Must Advocate Client’s Wishes, July 3, 2000). Just as in Ms. Holmes’ case, the subject of a guardianship/conservatorship proceeding has a right to meaningful legal representation by counsel of his or her own choice.

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