Kemp v. Berschback
204 So. 3d 143
| Fla. Dist. Ct. App. | 2016Background
- Nancy Gribler filed for guardianship of 91‑year‑old Robert E. Beck alleging dementia and simultaneously sought appointment of an emergency temporary guardian (ETG).
- The trial court appointed Virginia C. Yates as ETG; Don Berschback (trustee/health‑care surrogate) later moved to remove her; Beck died before any plenary/limited guardianship or incapacity determination.
- Three fee petitions followed: Kemp sought fees for representing Gribler (petitioner) and for representing the ETG Yates; Chlipala sought fees for representing Beck (the alleged incapacitated person).
- The trial court denied all petitions, reasoning § 744.108(1) authorizes fees only when an incapacity adjudication and appointment of a plenary/limited guardian occur (relying on In re Klatthaar).
- The Second District reversed: it held an ETG is a “guardian” and the person subject to an ETG is a “ward” for purposes of § 744.108(1); remanded to assess compensable fees, reasonableness, and alleged bad‑faith filing issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 744.108(1) permits fee awards for counsel to an emergency temporary guardian when no later adjudication of incapacity or plenary/limited guardian appointment occurs | Kemp/Chlipala: yes—ETG is a guardian and the protected person is a ward, so § 744.108(1) applies | Berschback: no—"guardian" in § 744.108(1) means only guardians appointed after incapacity adjudication; fees unavailable absent that adjudication | Court: yes—ETG qualifies as a guardian and the subject is a ward under § 744.108(1); fees may be awarded even if no later adjudication occurs; reverse and remand |
| Whether counsel for the petitioner (Gribler) may recover under § 744.108(1) | Kemp: some of his work for petitioner benefited the ward and may be compensable | Berschback: petitioner’s counsel not in statute’s covered categories; fees should not come from estate | Court: possible—remanded for trial court to decide whether petitioner’s representation benefited the ward and, if so, what fees are reasonable |
| Whether court‑appointed counsel for the alleged incapacitated person (Chlipala) may recover under § 744.108(1) where counsel was appointed under § 744.331 and ward died before adjudication | Chlipala: yes—once ETG appointed, the person became a ward and counsel rendered services to the ward | Berschback: entitlement, if any, arises solely under § 744.331(7), not § 744.108(1) | Court: unresolved on record—remand to determine nature of Chlipala’s appointment, applicable statute, and impact of his subsequent death |
| Whether In re Klatthaar bars fee awards absent incapacity adjudication | Kemp/Chlipala: Klatthaar is distinguishable because no ETG was appointed there | Berschback: Klatthaar requires adjudication before § 744.108 applies | Court: Klatthaar is distinguishable; it involved no guardian appointment at all; does not control where an ETG was appointed |
Key Cases Cited
- In re Guardianship of Klatthaar, 129 So. 3d 482 (Fla. 2d DCA 2014) (fees under § 744.108 unavailable where no guardian was ever appointed)
- Faulkner v. Faulkner, 65 So. 3d 1167 (Fla. 1st DCA 2011) (an ETG creates a ward/guardian relationship for fee‑allocation contexts)
- Thorpe v. Myers, 67 So. 3d 338 (Fla. 2d DCA 2011) (petitioner’s counsel may recover to the extent services benefit the ward)
- In re Guardianship of Snell, 915 So. 2d 709 (Fla. 1st DCA 2005) (assumes § 744.108 can authorize fees for ETG despite no later adjudication)
- Barrier v. JFK Med. Ctr. Ltd. P'ship, 169 So. 3d 185 (Fla. 4th DCA 2015) (ETG’s powers are limited to protecting the ward’s interests)
- Butler v. Guardianship of Peacock, 898 So. 2d 1139 (Fla. 5th DCA 2005) (fees for petitioner’s counsel denied where services did not benefit the ward)