IN THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO AND PINELLAS COUNTIES, FLORIDA

 

 

ADMINISTRATIVE ORDER NO. 2009-037 PA/PI-CIR

 

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RE:  INCAPACITY AND GUARDIANSHIP CASES – APPOINTMENT OF ATTORNEY AND RECOVERY OF COSTS

        

Effective July 1, 2009, Chapter 2009-61, Laws of Florida, amends § 57.081, Florida Statutes, to waive payment of filing fees in a guardianship case when the Court or the Clerk has found the alleged incapacitated person indigent. To implement those statutory amendments, the Circuit’s procedures for the recovery of fees and costs in guardianship cases need updating. 

 

            The Clerks of the Circuit Court, the Sixth Judicial Circuit on behalf of the State of Florida, and the Justice Administrative Commission on behalf of the State of Florida incur various costs when a petition to determine incapacity is filed under Chapter 744, Florida Statutes.[1] The filing fees for the petition to determine capacity and the petition for appointment of guardian are to be paid to the Clerk of the Circuit Court (Clerk).  The Sixth Judicial Circuit will expend funds for the guardianship examining committee. The members of the guardianship examining committee are under contract with the Court and, in cases involving an indigent ward, are paid through funds appropriated by the Florida Legislature to the state courts system.

 

An attorney must be appointed for the alleged incapacitated person.  See § 744.331(2)(b), Florida Statutes.  Section 27.511(6)(c), Florida Statutes requires the Court, in consultation with the Clerk to determine, if possible, whether the alleged incapacitated person is indigent. [2]  If the alleged incapacitated person is indigent, the Office of Criminal Conflict and Civil Regional Counsel (Regional Counsel) is to be appointed.  If the alleged incapacitated person is not indigent, or if it is not possible to determine whether the alleged incapacitated person is indigent, counsel from the Registry of attorneys approved by the Chief Judge is to be appointed.  If the Regional Counsel is appointed and it is later determined that the alleged incapacitated person is not indigent, the Regional Counsel must move to withdraw and request appointment of an attorney from the Registry.  If an attorney is appointed from the Registry and it is later determined that the alleged incapacitated person is indigent, the Registry attorney must move to withdraw and request appointment of the Regional Counsel.  The transfer of representation will likely be disruptive to the alleged incapacitated person and may delay needed services for the alleged incapacitated person. 

           

            Whether the Regional Counsel or a private attorney is appointed, the State of Florida Justice Administrative Commission will expend funds for an attorney to represent the alleged incapacitated person if the person is determined indigent or is found not to be incapacitated.    

 

            In order to update procedures for determining whether an alleged incapacitated person is indigent, to minimize disruption to the alleged incapacitated person by withdrawals by attorneys appointed to represent the alleged incapacitated person, and to continue procedures for the recovery of costs that have been incurred by the Clerk, the Sixth Judicial Circuit on behalf of the State of Florida, and the Justice Administrative Commission on behalf of the State of Florida,

 

IT IS ORDERED:

 

1.       When a petition to determine incapacity and for the appointment of a guardian is filed, the Clerk shall prepare an order appointing an attorney from the Registry provided to the Clerk by the Chief Judge, unless the petition is filed by the Public Guardian and the filing meets the requirements of paragraph two.

2.      When a petition to determine incapacity and for the appointment of a guardian is filed by the Public Guardian and the Public Guardian requests waiver of the filing fee because the alleged incapacitated person is known by that office to be indigent, the Clerk shall prepare an order appointing the Regional Counsel.

 

3.      When a suggestion of capacity is filed and the ward is known to have assets based upon a previous inventory, or if an inventory has not yet been filed, the Clerk shall prepare an order appointing an attorney from the Registry provided to the Clerk by the Chief Judge. 

 

4.      When a suggestion of capacity is filed and the ward is known to be indigent based upon a previous inventory, the Clerk shall prepare an order appointing the Regional Counsel.

 

5.      When payment of filing fees is deferred due to the possible indigence of the alleged incapacitated person, the Clerk may file a statement of claim in the guardianship case.  The claim form shall be substantially similar to Attachment A.   The claim shall be accompanied by a proposed order requiring payment.  The order shall be in a form substantially similar to Attachment B.

 

6.      When the Court appoints a guardianship examining committee or other expert to examine the ward, including a physician appointed pursuant to § 744.464, Florida Statutes, and the State of Florida Sixth Judicial Circuit pays such costs, the Clerk shall file a statement of claim on behalf of the State of Florida Sixth Judicial Circuit. The statement of claim shall be substantially similar to Attachment A.  The claim shall be accompanied by a proposed order requiring payment. 

 

7.      When the State of Florida Justice Administrative Commission has paid for the costs for the Regional Counsel or for a court appointed attorney, the court appointed attorney or the Regional Counsel may file a statement of claim on behalf of the State of Florida Justice Administrative Commission. The value of the fees for the Regional Counsel shall be the amount set forth in the General Appropriations Act, unless otherwise set by the court. The statement of claim shall be substantially similar to the Attachment C and shall be accompanied by a proposed order requiring payment.


8.      If the alleged incapacitated person is found by the court not to be incapacitated and the Court finds that the petition was filed in bad faith, the Court may direct the Petitioner to pay filing fees to the Clerk, to pay the examining committee fees to the State of Florida Sixth Judicial Circuit, and attorneys fees to the State of Florida Justice Administrative Commission. 

 

9.      If the alleged incapacitated person is found to be incapacitated by the court and the ward is determined by the court, either at the time of the guardianship hearing or the filing of the inventory, to have sufficient assets, the filing fees, the fees for the guardianship examining committee, and the attorney’s fees will be paid by the guardian from the assets of the ward.

 

10.  If the alleged incapacitated person is found to be incapacitated by the court and the ward is determined not indigent, but still found by the court at the time of the inventory not to have sufficient assets to pay the claims for the filing fee, guardianship examining committee, and the attorneys fees, and such fees are paid by the State of Florida, the court will defer payment of the claims by the guardian until the ward has sufficient assets to pay the claims.

 

11.  When the Clerk incurs additional costs as specifically provided for in Chapter 744, the Clerk may file a statement of claim for those costs in the guardianship case. Whenever the Clerk files a statement of claim, the Clerk shall prepare a proposed order.  The Order shall be substantially similar to Attachment B.

 

12.  If assets are later discovered or accumulated in the guardianship estate, the guardian may, without further order of the Court, pay claims from the Clerk, the State of Florida Sixth Judicial Circuit, and the Justice Administrative Commission. All checks submitted for such payments by the guardian shall include the case number on the check. Unless the judge in an individual case orders a different priority, payments shall be made in the following order of priority:

 

a.  Filing fees. Checks should be made payable to Clerk of the Circuit Court.  In Pasco County, checks should be forwarded to:

 

Clerk of the Circuit Court

Attention:  Guardianship Section

P. O. Drawer 338

New Port Richey, FL  34654

 

In Pinellas County, checks should be forwarded to:

                                                   

Clerk of the Circuit Court

Attention: Probate Court Records, Room 106

315 Court Street

Clearwater, FL  33756

 

b. Guardianship examining committee fees or fees for other expert appointed by


the Court to examine the ward, including a physician appointed pursuant to


§ 744.464, Florida Statutes. Checks should be made payable to the State of Florida, Sixth Judicial Circuit.

 

            In Pasco County, checks should be forwarded to:

 

            Clerk of the Circuit Court

Attention: Guardianship Section

            P. O.  Drawer 338

            New Port Richey, FL  34654

 

The Clerk will docket receipt of payment and forward it to the Administrative Office of the Courts in New Port Richey.

 

            In Pinellas County, checks should be forwarded to:

 

            Fiscal Office

            Administrative Office of the Courts

            14250 49th Street North

            Clearwater, FL  33762

 

            c. Additional statutory fees including any audit fees assessed by the Clerk. Checks should be made payable to the Clerk of the Circuit Court and forwarded to the address listed in paragraph a.

 

            d. Costs for the Regional Counsel or the court appointed attorney. Checks should be made payable to the State of Florida, Justice Administrative Commission and forwarded to:

 

Justice Administrative Commission

P. O. Box 1654

Tallahassee, FL  32302

 

13.  The Clerk, the Administrative Office of the Courts for the Sixth Judicial Circuit, and the Justice Administrative Commission shall file a notice of receipt of payment in the guardianship case whenever payment is made by the guardian.

 

14.  The Clerk, when conducting the annual accounting, shall review whether any claims for the filing fee, other fees for the Clerk, guardianship examining committee or other expert fees, or attorneys fees are outstanding and include such information with the accounting.

 

15.  The Chief Judge may update or make other amendments to the attachments of this Administrative Order without further amendment to this Administrative Order.

 

Administrative Order 2007-103 PA/PI-CIR and Administrative Order 2008-005 PA/PI-CIR are hereby rescinded.

 

DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this day ______ of June 2009.

 

 

 

                        _________________________________

                        Robert J. Morris, Jr., Chief Judge

 

 

 

cc:        All Judges

The Honorable Bernie McCabe, State Attorney

The Honorable Bob Dillinger, Public Defender

The Honorable Ken Burke, Clerk of the Circuit Court, Pinellas County

The Honorable Paula S. O’Neil, Clerk of the Circuit Court, Pasco County

Suzanne Mucklow, Executive Director, Pinellas County Clerk’s Office

Debbie Gay, Assistant Court Services Director, Pasco County Clerk’s Office

Gay L. Inskeep, Trial Courts Administrator

Jackson S. Flyte, Office of Regional Counsel

Kerry L. Rice, Senior Deputy Court Administrator, Pasco County

Bar Associations, Pasco and Pinellas Counties

Law Libraries, Pasco and Pinellas Counties


Attachment A

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO/PINELLAS COUNTY, FLORIDA

PROBATE DIVISION

 

IN RE: THE GUARDIANSHIP OF                             CASE NO.:______________________

                                                                                      UCN:___________________________

 

______________________________

Incapacitated

 

STATEMENT OF CLAIM

 

COMES NOW the Clerk of the Circuit Court of Pasco/Pinellas County, on behalf of the State of Florida, and herewith files its claim for reimbursement of amounts advanced said guardianship by the State of Florida pursuant to § 744.331 or § 744.464, Florida Statutes, and in support thereof states as follows:

 

1.  The following fees were expended in the above-captioned guardianship case:

 

FEES EXPENDED

              Filing Fees and Costs                                                              $_________

                                                      (Make check payable to

Clerk of the Circuit Court)

 

              Examining Committee Fees                                                     $_________

              (Make check payable to The State of Florida,

Sixth Judicial Circuit)

 

Physician Fees                                                                        $_________

 

(Make check payable to The State of Florida,

Sixth Judicial Circuit)          

 

              TOTAL AMOUNT OF CLAIM                                        $_________

                           

2.  These fees and costs have been incurred as a result of the proceedings to determine capacity of the above-mentioned individual, in guardianship case number _________________.

 

3.  Pursuant to § 57.081, Florida Statutes, the filing fees in a guardianship case  are waived if the ward is indigent and has obtained a certification of indigence under § 27.52 or § 57.082, Florida Statutes.  However, when the ward is found not indigent, the Clerk of the Circuit Court is entitled to file a claim for reimbursement of filing fees waived that were deferred while awaiting determination of the ward’s indigent‑status.   Pursuant to § 744.105, Florida Statutes, costs may be awarded in guardianship proceedings.

 


4.     Pursuant to § 744.331, Florida Statutes, fees for the examining committee of an indigent individual in a guardianship proceeding shall be paid by the State of Florida. After payment of examining committee fees, pursuant to § 744.331(7)(b), Florida Statutes, the State of Florida is entitled to file a claim against the guardianship to recover those fees paid by the State on behalf of the indigent person.

 

5.     Pursuant to § 744.464, Florida Statutes, the Court shall appoint a physician to examine the incapacitated individual when a suggestion of capacity is filed. When the incapacitated person is indigent, the cost of the physician is paid by the State of Florida and the State is entitled to file a claim against the guardianship to recover those fees paid by the State on behalf of the indigent person.

 

6.  The Clerk of the Circuit Court of Pasco/Pinellas County, on behalf of the Clerk and the State of Florida, hereby requests this Court enter an order requiring immediate reimbursement of said fees from, or upon discovery of, any assets, income, or property of the ward or of this guardianship estate.

 

7.  In addition, the Clerk of the Circuit Court of Pasco/Pinellas County, on behalf of the State of Florida, expects the State of Florida to make future expenditures on the estate. Accordingly, the Clerk requests that this Court consider this as a claim for future fees and costs to be reimbursed and that the Court retain jurisdiction of this claim.

 

WHEREFORE, the Clerk of the Circuit Court of Pasco/Pinellas County, on behalf of the Clerk and on behalf of the State of Florida, Sixth Judicial Circuit, requests that this Court consider this as a claim for the amounts set forth above to secure repayment of the respective claims and requests such other and further relief to which it may be entitled.

 

              DATED this______day of                          , 20___.

 

COPIES HAVE BEEN FURNISHED TO:

 

Guardian:

Attorney for Guardian:

Court File

         CLERK OF THE CIRCUIT COURT OF

                     PASCO/PINELLAS COUNTY, FLORIDA

                   

 

                              By:________________________________

                                              DEPUTY CLERK

 

 

Attachment B

IN THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO/PINELLAS COUNTY, FLORIDA

PROBATE DIVISION

 

 

IN RE: THE GUARDIANSHIP OF                         CASE NO.:______________________

                                                                                    UCN:___________________________

 

____________________________

Incapacitated

 

ORDER REQUIRING PAYMENT OF FILING FEES AND COSTS

 

THIS CAUSE coming on to be heard on the motion of the Clerk of the Circuit Court and the Court having reviewed the file and being otherwise fully advised in the premises, the Court finds that filing fees and costs were previously deferred by the Clerk of the Circuit Court of Pasco/Pinellas County in the above-captioned guardianship after it was alleged that the ward was indigent. Pursuant to §§ 27.52 and 744.105, Florida Statutes, the Clerk of the Circuit Court has a right to recover these filing fees and costs in the event assets, income, or property are identified as part of the guardianship estate.   Therefore, it is

 

ORDERED AND ADJUDGED that, in the event sufficient funds are identified as part of the guardianship estate, the guardian shall be required to pay the Clerk of the Circuit Court of Pasco/Pinellas County for the filing fees and costs deferred in the guardianship.

 

DONE AND ORDERED in Chambers at___________________________, Pasco/Pinellas County, Florida, this ______ day of_____________________, 20___.

           

 

 

 

 

                                                                                    ______________________________

                                                                                    CIRCUIT COURT JUDGE

 

cc:       Guardian:

            Attorney for Guardian:

 

 

 

 

 

 

 

 

 

 

Attachment C

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO/PINELLAS COUNTY, FLORIDA

PROBATE DIVISION

 

IN RE: THE GUARDIANSHIP OF                                 CASE NO:_____________________

                                                                                          UCN NO:______________________

 

_____________________________

Incapacitated

 

STATEMENT OF CLAIM

 

COMES NOW _________________________, the attorney appointed by the Court to represent the incapacitated person named above, on behalf of the State of Florida Justice Administrative Commission, and herewith files a claim for reimbursement of amounts advanced said guardianship by the State of Florida pursuant to § 744.331 or § 744.464, Florida Statutes, and in support thereof states as follows:

1.     The following fees and costs were expended in the above-captioned guardianship case:

 

FEES EXPENDED

              Attorney Fees and Costs                                                         $________

                                                      (Make check payable to State of Florida,

Justice Administrative Commission)

 

              TOTAL AMOUNT OF CLAIM                                        $________

 

 

2.     These fees and costs have been incurred as a result of the proceedings to determine capacity of the above-captioned individual, in guardianship case number__________________.

 

3.  Pursuant to §§ 27.511 and 744.331, Florida Statutes, fees for the regional counsel or for a private attorney appointed to represent an individual in a guardianship proceeding may be paid by the State of Florida in certain circumstances. After payment of such attorney fees, pursuant to § 744.331(7)(b), Florida Statutes, the State of Florida is entitled to file a claim against the guardianship to recover those fees paid by the State on behalf of the ward or alleged incapacitated person.

 

4.     Pursuant to § 744.464, Florida Statutes, when an objection to the suggestion of capacity is filed or when the medical examination suggests that a full restoration of rights is

 

not appropriate, the Court shall appoint the regional counsel or a private attorney to represent the ward if the ward does not have an attorney.  Fees for the regional counsel or for a private attorney appointed to represent an individual in a guardianship proceeding may be paid by the State of Florida in certain circumstances.

                                                                                                                                                                                                                

5.     Therefore, _______________________, the attorney appointed to represent the ward or alleged incapacitated person in the above-captioned guardianship case, on behalf of the State of Florida, Justice Administrative Commission, hereby requests this Court enter an order requiring immediate reimbursement of said fees from, or upon discovery of, any assets, income, or property of the ward or of this guardianship estate.

 

WHEREFORE, ____________________________, the attorney for the above-captioned incapacitated person, on behalf of the State of Florida, Justice Administrative Commission, requests that this Court consider this as a claim for the amount set forth above to secure repayment of the claim and requests such other and further relief to which it may be entitled.

             

              DATED this _____ day of                             , 20___.

 

COPIES HAVE BEEN FURNISHED TO:

 

Guardian:

Attorney for Guardian:

Court File

 

                        BY:______________________________

                                    ATTORNEY FOR THE

                                    INCAPACITATED WARD

 

 

 

 



[1] Guardian Advocate proceedings filed pursuant to section 393.12, Florida Statutes, are governed by Chapter 744 and accordingly the provisions in this Administrative Order apply to such proceedings.

[2] Governor Crist noted in his letter of June 19, 2007, to the Secretary of State regarding this legislation (SB 1088), that the determination of indigent status cannot be accurately made prior to the filing of an inventory by the guardian.