       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                    BETH ANN ELISA ERLANDSSON,
                             Appellant,

                                     v.

         GUARDIANSHIP OF BETH ANN ELISA ERLANDSSON,
                          Appellee.

                      Nos. 4D19-2521 & 4D19-2522

                               [May 6, 2020]

   Consolidated appeal from the Circuit Court for the Nineteenth Judicial
Circuit, Indian River County; Michael J. Linn, Judge; L.T. Case Nos. 31-
2019-GA000024 and 31-2019-GA000025.

   Charles E. Ray of Charles E. Ray, P.A., Port St. Lucie, for appellant.

   No appearance for appellee.

WALSH, LISA S., Associate Judge.

   Appellant Beth Ann Elisa Erlandsson appeals from an order appointing
her parents as plenary guardians over her person and property. We have
jurisdiction. See Art. V, § 4(b)(1), Fla. Const. For the reasons set forth
below, we reverse and remand for a new hearing with respect to the
parents’ petition for limited guardianship.

                               Background

   Appellant’s parents filed a petition for limited guardianship seeking to
remove their daughter’s rights specified in sections 744.3215(2) and (3),
Florida Statutes (2019), except for her right to vote and right to marry. The
petition alleged that Appellant was not attending to her basic medical and
psychiatric needs and was unable to manage her own finances. The trial
court appointed an examining committee to investigate and provide a
report and recommendation to the court.

   According to the committee’s reports, Appellant was not taking care of
her medical or psychiatric needs. Her diabetes was unchecked, resulting
in significant blood sugar fluctuations, and her inattention to self-care
caused her to become blind in one eye and legally blind in the other. Her
mental health fared no better. She was schizophrenic and extremely
paranoid. She had recently been involuntarily committed to a mental
health facility, and demonstrated a need for long-term psychiatric care.
The examining committee unanimously reported that Appellant lacked the
capacity to exercise her basic rights and recommended that a plenary
guardian be appointed, which was in excess of the relief sought in the
petition for limited guardianship.

   The trial court appointed counsel to represent Appellant in the
guardianship hearings. Appellant asked to discharge her appointed
counsel, objecting throughout the hearing to her lawyer’s representation
and to having a guardianship imposed. Despite her client’s objections,
appointed counsel did not seek to withdraw, believing her client lacked the
capacity to make the decision to fire her. Appellant continued to object to
counsel’s representation, and the trial court denied her request to
discharge her lawyer.

    At the hearing, appointed counsel briefly cross-examined one witness,
but did not object to the admission of evidence and did not cross-examine
the other witnesses. Appellant attempted to cross-examine a witness
herself, but was prohibited from doing so. Appointed counsel declined to
offer any evidence on Appellant’s behalf, and Appellant complained, “I
think my attorney should have some evidence and things in my favor.”
Finally, appointed counsel argued in favor of a plenary guardianship,
against Appellant’s clear and express wish that no guardianship be
established:

      [APPOINTED COUNSEL]: Your Honor, based upon my
      conversations with my client and with her parents and the
      records that I saw I feel that a refusal to take medication for
      her schizophrenia and certain things that she has done to
      harm herself physically and medically.

      ***

      APPELLANT: I have not harmed myself physically and I will
      not have her as the attorney and she has done nothing in my
      support or argued in my favor.

      ***




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      [APPOINTED COUNSEL]: And it’s my understanding that she
      is blind in one eye and legally blind in the other because of
      actions that she took not protecting herself.

      ***

      [APPOINTED COUNSEL]: In addition, she has diabetes and
      because she refuses to apply for SSI and get Medicaid the
      family can’t afford to buy the insulin, and she's sharing her
      father’s insulin.    And because she refuses to take the
      medication for the schizophrenia her condition is only
      worsening. I’m not saying that in the future she might not
      have the capacity to exercise some of her rights, but unless
      she takes the medication she’s never going to improve. So at
      the present time I have to agree with [the Petitioner] that she
      has to be under guardianship.

(emphasis added).

   The trial court ordered a plenary guardianship, appointing Appellant’s
parents as guardians.

                                 Analysis

   Questions of statutory interpretation are reviewed de novo. Hilton v.
State, 961 So. 2d 284, 288 (Fla. 2007); Borden v. E.-European Ins. Co., 921
So. 2d 587, 591 (Fla. 2006). Similarly, issues as to whether the trial court
satisfied due process are reviewed de novo. VMD Fin. Servs., Inc. v. CB
Loan Purchase Assocs., LLC, 68 So. 3d 997, 999 (Fla. 4th DCA 2011).

   At several points during the hearing, Appellant clearly indicated her
dissatisfaction with appointed counsel and her desire to proceed with
substitute appointed counsel. On appeal, she urges this court to extend
principles of constitutional criminal law to guardianship proceedings and
argues that she was not afforded her right to counsel under the
guardianship statute.

   A trial judge in guardianship proceedings has a mandatory statutory
obligation to appoint counsel for the alleged incapacitated person. This
obligation is established under section 744.331(2)(b), Florida Statutes
(2019):

      (2) Attorney for the alleged incapacitated person.—


                                     3
       ***

       (b) The court shall appoint an attorney for each person alleged
       to be incapacitated in all cases involving a petition for
       adjudication of incapacity. The alleged incapacitated person
       may substitute her or his own attorney for the attorney
       appointed by the court.

Attorneys appointed pursuant to section 744.331(2)(b) are awarded
reasonable fees, either “paid by the guardian from the property of the ward
or, if the ward is indigent, by the state.” § 744.331(7)(b), Fla. Stat. (2019).

   Appellant first argues that she had a constitutional right to discharge
counsel and either represent herself or require a new appointed lawyer.
She argues that when she voiced her displeasure with counsel, the trial
court should have conducted a colloquy under Faretta v. California, 422
U.S. 806 (1974) and Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
Faretta 1 and Nelson 2 enforce the rights of a criminal defendant to the
assistance of counsel and to self-representation under the Sixth
Amendment to the United States Constitution, and Article I, section 16 of
the Florida Constitution. The text of the Sixth Amendment applies
exclusively to criminal matters, and not to guardianship proceedings.3
Under Faretta and Nelson, the trial court had no obligation in a
guardianship proceeding to substitute counsel or allow Appellant to
represent herself. 4

   Similarly, we reject Appellant’s argument that she has a constitutional
right to challenge the effective assistance of her appointed counsel. In
cases applying the due process clause of the Florida Constitution or the

1 In Faretta, the United States Supreme Court enforced a criminal defendant’s
Sixth Amendment right to self-representation in criminal matters as
“independently found in the structure and history of the constitutional text.” 422
U.S. at 819 n.15.
2 In Nelson, we held that when a criminal defendant voices displeasure with

appointed counsel, a trial court is required to inquire whether there is a basis to
believe counsel is ineffective, again, applying the Sixth Amendment. 274 So. 2d
at 258–59.
3 See, e.g., Jones v. State, 69 So. 3d 329, 334 (Fla. 4th DCA 2011) (Faretta inquiry

not required in post-conviction proceedings); Martinez v. Ct. of App. of Cal., 528
U.S. 152, 163 (2000) (no right of self-representation under Faretta in direct
appeal from criminal conviction); see also In re Conservatorship of Joel E., 33 Cal.
Rptr. 3d 704, 708–11 (Cal. Ct. App. 2005) (the Sixth Amendment does not afford
individuals a right to self-representation in civil proceedings).
4 Moreover, Appellant never asked to represent herself.


                                         4
federal constitution, courts have found that the appointment of counsel is
required only in proceedings where incarceration or involuntary
commitment may be imposed 5 or where a parent faces loss of the right to
parenthood, such as in termination of parental rights proceedings. 6 A
right to effective assistance of counsel under the due process clause has
not been extended beyond those areas. See S.B. v. Dep’t of Children &
Families, 851 So. 2d 689, 694 (Fla. 2003) (“[I]n civil dependency
proceedings which do not involve the possibility of criminal charges
against the parent or the permanent termination of parental rights, there
is no right to pursue a collateral proceeding questioning the competency
of court-appointed counsel.”); In re Interest of D.B., 385 So. 2d 83, 87 (Fla.
1980) (constitutional right to counsel for parents in dependency matters
arises only in proceedings which may result in permanent loss of parental
custody).

   We next address whether the trial court should have recognized that a
conflict of interest existed between Appellant and her court-appointed
counsel, and whether the court had a statutory duty to appoint new
counsel. Florida law defines the role of appointed counsel in guardianship
proceedings as follows:

      (1) “Attorney for the alleged incapacitated person” means an
      attorney who represents the alleged incapacitated person.
      The attorney shall represent the expressed wishes of the
      alleged incapacitated person to the extent it is consistent with
      the rules regulating The Florida Bar.

§ 744.102(1), Fla. Stat. (2019) (emphasis added). Representation of a
client’s expressed wishes in a guardianship proceeding is thus required

5 See, e.g., Vitek v. Jones, 445 U.S. 480, 496–97 (1980) (due process right to
counsel in hearings for involuntary commitment of prisoner to mental facility); In
re Gault, 387 U.S. 1, 30–31 (1967) (due process right to counsel in juvenile
delinquency hearings); Pullen v. State, 802 So. 2d 1113, 1119 (Fla. 2001) (due
process right to counsel in involuntary civil commitment proceedings under the
Baker Act); Ivey v. Dep’t of Children & Family Servs., 974 So. 2d 480, 481 (Fla.
2d DCA 2008) (right to counsel in proceedings for the involuntary commitment
of a sexual predator under the Jimmy Ryce Act).
6 See J.B. v. Fla. Dep’t of Children & Families, 170 So. 3d 780, 789 (Fla. 2015)

(due process right to effective assistance of counsel in termination of parental
rights proceedings); see also K.H. v. Children’s Home Society of Fla., 120 So. 3d
104, 107 (Fla. 4th DCA 2013) (due process right to counsel for objecting biological
father in adoption proceedings); O.A.H. v. R.L.A., 712 So. 2d 4, 4 (Fla. 2d DCA
1998) (due process right to counsel for non-consenting parent in an adoption
proceeding).

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by section 744.102(1), Florida Statutes, in accord with Florida Bar Rules
4-1.2(a) and 4-1.14. 7 The language of the statute clearly requires that a
lawyer appointed in guardianship proceedings represents the expressed
wishes and not necessarily the “best interests” of a prospective ward.

    The Florida Bar Rules address the role of counsel where the client
suffers from mental or physical incapacity. Florida Bar Rule 4-1.2(a)
mandates that “a lawyer must abide by a client’s decisions concerning the
objectives of representation,” and “must reasonably consult with the client
as to the means by which they are to be pursued.” (emphasis added).
Moreover, Florida Bar Rule 4-1.14, which governs representation of a
client under a disability, provides that:

      (a) Maintenance of Normal Relationship. When a client’s
      ability to make adequately considered decisions in connection
      with the representation is impaired, whether because of
      minority, mental disability, or for some other reason, the
      lawyer shall, as far as reasonably possible, maintain a normal
      client-lawyer relationship with the client.

      (b) Appointment of Guardian. A lawyer may seek the
      appointment of a guardian or take other protective action with
      respect to a client only when the lawyer reasonably believes
      that the client cannot adequately act in the client’s own
      interest. 8

   Appellant’s counsel struggled with her role because her client was
actively manifesting symptoms of a major mental illness:

      [APPOINTED COUNSEL]: . . . . I have two problems. One is
      because of her medical condition and her refusal to take
      medication I’m not sure she has the capacity right now to
      make the decision about who should represent her. The
      second problem is the only way anyone is going to be able to
      represent her is if that attorney agrees that she is not sick and
      that people are trying to make her sick, is that correct?



7 For ease of reference, this opinion will refer to the Rules Regulating the Florida
Bar as the “Florida Bar Rules,” and will refer to a specific rule as a “Florida Bar
Rule.”
8 We do not read this section to entitle appointed counsel in a guardianship

proceeding to counter her client’s express wishes not to have a guardian
appointed. Such a reading would conflict with section 744.331(2)(b).

                                         6
    While the plain language of section 744.102(1) clearly requires that an
attorney represent the “expressed interests” of an alleged incapacitated
person, there is a dearth of Florida cases addressing the obligation of
appointed counsel in guardianship proceedings. In cases outside of
Florida, courts have held that even where a prospective ward’s wishes are
contrary to their own best interests, counsel is obligated to advocate for
their client’s wishes. In South Dakota, the supreme court opined:
“Traditionally, an attorney is appointed to zealously advocate for a
protected person’s wishes, regardless of whether those wishes are in that
person’s best interests. A court representative (or guardian ad litem), on
the other hand, is appointed to act in a protected person’s best interests.”
In re Guardianship of Stevenson, 825 N.W.2d 911, 914–15 (S.D. 2013).

    New Jersey adopts a similar approach. In Matter of M.R., 638 A.2d
1274, 1284 (N.J. 1994), the New Jersey Supreme court held that, even
where counsel is concerned that the prospective ward’s illness is causing
impairment, the proper role of an attorney in a guardianship proceeding
“is not to determine whether the client is competent to make a decision,
but to advocate the decision that the client makes.” The court explained:

      An attorney proceeds without well-defined standards if he or
      she forsakes a client’s instructions for the attorney’s
      perception of the client’s best interests. Further, if counsel
      has already concluded that his client needs “help,” he is more
      likely to provide only procedural formality, rather than
      vigorous representation.

Id. at 1285 (citations and internal quotation marks omitted). Still, the New
Jersey high court acknowledged that the attorney’s role “does not extend
to advocating decisions that are patently absurd or that pose an undue
risk of harm to the client.” Id. at 1284–85. The attorney’s role should be
to advocate for the client’s choice, “as long as it does not pose
unreasonable risks for her health, safety, and welfare.” Id. at 1286.

   An Iowa case takes the same approach as the New Jersey case. In an
unpublished decision in In re Guardianship of Fagan, No. 17-0785, 909
N.W.2d 443, 2017 WL 5185449 (Iowa Ct. App. Nov. 8, 2017), an Iowa
appellate court reversed an order establishing a permanent guardianship
over a 71-year-old proposed ward where his appointed attorney, like
appointed counsel for Appellant here, misconstrued her role as his
guardian ad litem.      Mr. Fagan’s appointed attorney filed a report
recommending that it would be in Mr. Fagan’s best interest for the trial
court to establish a guardianship, which was contrary to his “desire to live
independently and manage his own affairs.” Id. at *1. The appointed

                                     7
attorney for Mr. Fagan did not act as his counsel, did not subject the
petitioner’s case to adversarial testing, did not advocate for his desire to
live without a guardian, and did not advocate for a limited guardianship.
Id. The court held that the appointed attorney operated under an actual
conflict of interest by acting as Mr. Fagan’s guardian ad litem, rather than
as his lawyer. Reversal was “necessary due to Fagan not receiving
representation during the course of this proceeding.” Id. at *2.

    Likewise, Appellant did not receive the assistance of counsel as
required by statute. While some of Appellant’s comments reflected the
symptoms of mental illness, many of Appellant’s expressed wishes were
relevant to this guardianship proceeding. For example, Appellant wanted
to confront live witness testimony by cross-examination. She wanted to
present evidence. She wanted to testify. She wanted to present argument
to the judge why a guardianship should not be imposed.

   Section 744.102(1) requires that an appointed attorney “shall represent
the expressed wishes of the alleged incapacitated person to the extent it is
consistent with the rules regulating The Florida Bar.” The statute
manifests an intent to ensure that an alleged incapacitated person’s voice
and wishes are heard and considered. While counsel no doubt believed
that Appellant’s physical and mental conditions required a guardianship,
she still was obligated to represent her client’s expressed wishes rather
than preventing her from expressing her views.

     “[E]ven if an attorney thinks the guardianship would be in the client’s
best interest, the attorney whose client opposes guardianship is obligated
. . . to defend against the guardianship petition.” Vicki Gottlich, The Role
of the Attorney for the Defendant in Adult Guardianship Cases: An
Advocate’s Perspective, 7 Md. J. Contemp. Legal Issues 191, 201–02 (1996)
(emphasis added). In forcing Appellant to go forward with a lawyer
advocating for what counsel perceived to be her client’s “best interests,”
rather than the client’s “expressed interests,” the trial court disregarded
Appellant’s claims of a conflict of interest, and violated section 744.102(1),
Florida Statutes. We therefore reverse the order below establishing a
permanent guardianship and remand with directions to appoint conflict-
free counsel to represent Appellant at a new hearing on the petition for
guardianship.

   Reversed and Remanded for further proceedings consistent with this
opinion.

WARNER and FORST, JJ., concur.


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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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