Summary
The Florida Second District Court of Appeal treated a petition for writ of mandamus as a petition for writ of certiorari and granted relief. The court held that an alleged incapacitated person has a statutory right under section 744.331(2)(b), Florida Statutes, to substitute appointed counsel with counsel of choice during incapacity proceedings, even when an emergency temporary guardianship delegated the person's general right to contract. The court quashed the trial court's order denying the substitution of counsel and striking counsel's notice of appearance.
Topics
Practice areas
Questions Presented
- Whether the district court had certiorari jurisdiction to review the trial court's denial of Foster's motion to substitute counsel.
- Whether an alleged incapacitated person subject to an emergency temporary guardianship may exercise the statutory right to substitute court-appointed counsel with counsel of the person's choice before incapacity is adjudicated.
- Whether the trial court departed from the essential requirements of law by denying Foster's motion to substitute counsel and striking counsel's notice of appearance.
Holdings
- An erroneous denial of a motion to substitute counsel causes irreparable harm that supports certiorari jurisdiction because deprivation of the litigant's chosen counsel for the duration of the proceeding cannot be remedied by a later appeal.
- An alleged incapacitated person may substitute personally selected counsel for court-appointed counsel during proceedings to determine incapacity until the trial court determines incapacity by clear and convincing evidence.
- Although an emergency temporary guardianship may remove or delegate the alleged incapacitated person's general right to contract when that authority is specifically conferred by court order, it may not remove the alleged incapacitated person's statutory right to contract with and substitute counsel under section 744.331(2)(b).
Key quotations
“Thus, while section 744.3031(1) is broad enough to allow removal of the right to contract generally, section 744.331(2)b effectively prohibits the trial court from removing the alleged incapacitated person's right to contract with an attorney.” (at 8)
“A person subject to an emergency temporary guardianship remains an alleged incapacitated person until such time as he is adjudicated incapacitated and is free to exercise all rights not otherwise delegated to a guardian pursuant to an emergency temporary guardianship, including the right to substitute counsel.” (at 10-11)
Factual background
DCF initiated guardianship proceedings alleging that Foster was incapacitated and seeking appointment of a plenary guardian. During the proceedings, the trial court appointed an emergency temporary guardian over Foster's property and delegated his right to contract. Foster nevertheless met with attorney J. Ronald Denman and expressed his desire to have Denman represent him in place of court-appointed counsel. The trial court denied substitution, entered amended emergency temporary guardianship letters nunc pro tunc, and struck Denman's notice of appearance.
Procedural history
The Department of Children and Families filed a petition to determine Foster's incapacity and appoint a plenary guardian. The trial court appointed counsel for Foster and later appointed Christa Radulovich as emergency temporary guardian over Foster's property, with letters delegating his right to contract. Foster sought to substitute attorney J. Ronald Denman as his counsel; the trial court denied the motion, entered amended emergency temporary guardianship letters nunc pro tunc, and struck Denman's notice of appearance. The district court granted certiorari and quashed the order.
Remand instructions
The writ of certiorari was granted and the trial court's order denying Foster's motion to substitute counsel was quashed. No further specific remand instructions were stated.