PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Standing To Sue The Guardian’s Attorney (Post-Saadeh)

The relevant facts of Saadeh v. Connors, 166 So. 3d 959 (Fla. 4th DCA 2015) are as follows: Saadeh is a wealthy man of advanced years. After his wife passed away, a relative introduced him to a younger woman. Saadeh loaned money to the woman, which alarmed his adult children. In response, the children contacted attorney Colette Meyer (“Colette”) who worked with a professional guardian, Deborah Barfield (“Barfield”). Barfield filed a petition to determine incapacity and attached a neurologist’s report diagnosing Saadeh with “dementia, probably Alzheimer’s.” After a hearing, the court appointed Barfield as the emergency temporary guardian. Colette was Barfield’s attorney. Three days after the guardian’s appointment, Colette and Saadeh’s court-appointed attorney submitted to the court an agreed order to settle the guardianship, agreeing that Saadeh would execute a trust in lieu of plenary guardianship. The agreed order provided that Saadeh would execute the required trust within seven days, and that all pending incapacity proceedings were dismissed. Notwithstanding the agreed order, the trial court never dismissed the underlying emergency temporary guardianship, and the parties and the court continued to conduct themselves as though the subject guardianship proceedings had never been dismissed. Saadeh was found competent by a newly-appointed examining committee.

Saadeh sought an order from the trial court setting aside the establishment of the trust originally required by the agreed order to settle the guardianship. The trial court agreed with Mr. Saadeh and entered a summary judgment setting aside the trust. Subsequently, in 2010, Saadeh brought suit against the guardian and Saadeh’s court-appointed attorney. In addition, Saadeh sued Colette for professional negligence and breach of duty.

Colette moved for summary judgment, arguing that there was no privity of contract between her and Saadeh, and thus she owed no duty directly to Saadeh. She also argued that Saadeh’s interests were adverse to the interests of his children and the guardian. In response, Saadeh argued that he was a third-party beneficiary insofar as he was the ward and thus, by definition, the intended beneficiary of everything connected with the underlying guardianship proceeding. Even though legal services were technically provided to the guardian, Saadeh urged that since his guardianship estate was compensating both the guardian and the guardian’s attorney, the attorney owed him a duty of care. Mr. Saadeh urged that as the “incapacitated ward,” he was the intended beneficiary of services provided by the guardian’s attorney.

After a hearing, the court granted summary judgment in favor of Colette and rejected the argument that Saadeh was an intended beneficiary. The court noted that Saadeh’s court appointed attorney invited Colette to speak to Saadeh, and it compared this situation to a criminal defense attorney and his client engaging in plea negotiations with a prosecutor. The court also relied on section 744.331(2)(c), Florida Statutes, which precludes an attorney for the alleged incapacitated person from serving as either the guardian or the attorney for the guardian. Saadeh appealed the court’s order.

The appellate court, in reversing the summary judgment, reasoned: “Based on the foregoing analysis, we find that Saadeh and everything associated with his well-being is the very essence i.e. the exact point, of our guardianship statutes. As a matter of law, the ward in situations as this, is both the primary and intended beneficiary of his estate. To tolerate anything less would be nonsensical and would strip the ward of the dignity to which the ward is wholly entitled. Whether there was a breach of the duty which caused damages obviously remains to be determined. But Mr. Saadeh has a viable and legally recognizable cause of action against the guardian’s attorney which is available to Mr. Saadeh and which we direct be immediately reinstated.”

The guardian’s attorney’s duties do not extend beyond the ward. For example, in Driessen v. Univ. of Miami Sch. of Law Children & Youth Law Clinic, 260 So. 3d 1080 (Fla. 3rd DCA 2018), Ms. Driessen, the mother of the ward, a developmentally disabled person, sued the guardian’s attorney (“the Clinic”) for legal malpractice. The court dismissed Ms. Driessen’s second amended complaint with prejudice because she was not the ward’s legal guardian, she did not retain the Clinic to represent the ward or the co-guardians (the ward’s sister and grandfather), and she was not and is not the intended beneficiary of the representation of the legal guardians. The appellate court, in affirming the dismissal with prejudice, held that “Ms. Driessen, as Brittany’s next of kin, may have legitimate concerns regarding some of the decisions made by Brittany’s guardians, those concerns do not provide her with the standing to sue the Clinic for legal malpractice in its representation of her daughter’s guardians.” “The exception to this general rule requiring privity of contract between the client and attorney is when the plaintiff is the intended third-party beneficiary of the services performed by the attorney [citations omitted]. The ward, which in this case is Brittany, not the ward’s next of kin, is the intended beneficiary of the attorney’s services.”