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Is a Guardianship Necessary to Hire a Personal Injury Lawyer for Minors and Incapacitated Persons?

Written by Jeffrey Skatoff • January 18th, 2010

Guardianship Litigation,  

In Re Guardianship of Deily, (Fla. 2nd DCA January 15, 2010)

Whenever a minor or incapacitated person is injured and a lawsuit is warranted, the question arises as to who has authority to hire a personal injury attorney, and on what terms. 

In the cited-to case, an adult child was injured in a bicycling accident.  His mother hired a personal injury law firm to represent her son in a potential lawsuit, signing a "standard" contingency fee agreement.  The law firm made formal demands on all of the insurance carriers potentially at risk, and the carriers all tendered full policy limits.  While the settlement of the case was pending, the mother filed an incapacity petition and a guardianship petition.  The incapacity petition was granted; however, instead of appointing the mother as the guardian, the court appointed a professional guardian. 

The professional guardian then challenged the law firm's fee arrangement.  The trial court judge rejected the fee arrangement, on the ground that the incapacitated ward's mother was not authorized to act in any capacity on his behalf when she signed the retainer with the personal injury law firm, and that firm had no contract with the guardian. 

The appellate court reversed, holding that, although the guardian had not been appointed, "neither had anyone else."  The appellate court cited to Florida Rule of Civil Procedure 1.210(b), which provides that

[a] minor or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem.

The appellate court remanded the case to the trial court to determine whether the contingency fee agreement was proper, under the authority of Phillips v. Nationwide Mutual Insurance Co., 347 So.2d 465 (Fla. 2d DCA 1977), as follows:

A contingent fee arrangement entered into on behalf of a minor will be binding on the minor if the trial court determines: 1) that it was reasonably necessary to employ an attorney on behalf of the minor; and 2) that the contract by which the attorney was employed was fair and reasonable at the time it was entered into.