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Florida Woman Chooses Own Lawyer In Guardianship Action

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When an individual becomes incapacitated, and is no longer able to handle their own finances or make medical or personal decisions, an interested person may file a petition with the local court for appointment of a guardian and/or conservator. In most states (including Arizona), the court will promptly appoint an attorney to represent the allegedly incapacitated person. The role of that court-appointed attorney should be to advocate for the client’s wishes, even though the evidence of need for assistance may be evident.

When Lutheran Services Florida filed for a guardianship (of the estate—what would be called conservatorship in many other states) on Babette Holmes, they alleged that she was completely unable to understand her finances or the documents she was signing. An attorney, Charla McNally Burchette, was appointed to represent Ms. Holmes.

But Ms. Holmes had other ideas. She wanted to choose her own attorney, and so she contacted Sarasota lawyer John Persse, who agreed to represent her. Mr. Persse secured Ms. Holmes’ signature on the appropriate form and filed it with the court, expecting to take over as her attorney in the guardianship proceeding.

Having a prospective ward hire her own attorney is uncommon, and Ms. Burchette, the appointed lawyer, apparently didn’t think Ms. Holmes had sufficient understanding of what she was doing to even make the selection. She asked the court to order that the hiring of Mr. Persse was ineffective because of Ms. Holmes’ mental limitations, and to confirm that she was Ms. Holmes’ lawyer.

After reading the pleadings (but without taking any evidence), Judge Andrew Owens agreed. He ordered Mr. Persse to cease his attempts to represent Ms. Holmes, based on his finding that she was incapable of selecting her own counsel. Ms. Holmes and Mr. Persse appealed.

The Florida Court of Appeals reversed Judge Owens’ holding. The appellate judges pointed out that no court decision had yet determined Ms. Holmes to be incapacitated, and that there is a presumption that everyone has capacity to enter into their own contracts. In this case, since Judge Owens had taken no testimony about Ms. Holmes’ ability to contract, there was no way to overcome that presumption and her selection of counsel was allowed to stand. Holmes v. Burchette, August 9, 2000.

The same result would probably be reached under Arizona law, though it would be unlikely to require action by an appellate court. Courts are usually supportive of an individual’s right to be represented by counsel of choice. Furthermore, even a marginally competent person who is represented by an attorney he or she selects is much more likely to believe that the court process was fair.

The result in Ms. Holmes’ case is also consistent with another case recently reported in Elder Law Issues. In July we reported on the case of Sonny Lee, whose Maryland attorney decided that she should recommend that a guardian be appointed for her client despite his objections. The Maryland Court of Special Appeals ordered another hearing, and directed that Mr. Lee’s lawyer had a duty to advocate for his wishes (Lawyer For Proposed Ward Must Advocate Client’s Wishes, July 3, 2000). Just as in Ms. Holmes’ case, the subject of a guardianship/conservatorship proceeding has a right to meaningful legal representation by counsel of his or her own choice.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.