IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA 

November 18, 2016 

In re Guardianship of Robert E. Beck, ) 

Deceased. ) 

________________________________ ) 

 ) 

KENNETH E. KEMP, II, and JERALD ) 

J. CHLIPALA, ) 

 ) 

 Appellants, ) 

 ) 

v. ) Case No. 2D15-239 

 ) 

DON R. BERSCHBACK, as Trustee of ) 

the Robert E. Beck Trust, ) 

 ) 

 Appellee. ) 

________________________________ ) 

BY ORDER OF THE COURT: 

 Appellant's motion for rehearing of opinion and order on appellate fees is 

stricken. Appellant's amended motion for rehearing of opinion and amended motion for 

order on appellate fees are granted. The opinion and order on attorney fees issued on 

August 10, 2016, are withdrawn, and the attached opinion and order on fees and 

sanctions are issued in its place. No further motions for rehearing will be entertained. 

I HEREBY CERTIFY THE FOREGOING IS A 

TRUE COPY OF THE ORIGINAL COURT ORDER. 

_______________________________ 

MARY ELIZABETH KUENZEL, CLERK 
 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

In re Guardianship of Robert E. Beck, ) 

Deceased. ) 

 ) 

 ) 

KENNETH E. KEMP, II, and JERALD ) 

J. CHLIPALA, ) 

 ) 

 Appellants, ) 

 ) 

v. ) Case No. 2D15-239 

 ) 

DON R. BERSCHBACK, as Trustee of ) 

the Robert E. Beck Trust, ) 

 ) 

 Appellee. ) 

________________________________ ) 

Opinion filed November 18, 2016. 

Appeal from the Circuit Court for Lee 

County; Alane C. Laboda, Judge. 

Robert L. Donald of Law Office of Robert 

L. Donald, Fort Myers, for Appellant 

Kenneth E. Kemp, II; and Jerald J. 

Chlipala, Fort Myers, for Appellant Jerald 

J. Chlipala. 

Scott A. Beatty and C. Richard Mancini of 

Henderson, Franklin, Starnes & Holt, P.A., 

Bonita Springs, for Appellee. 

SALARIO, Judge. 
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 Kenneth E. Kemp, II, and Jerald Chlipala appeal a final order denying their 

applications for attorney's fees and costs in this guardianship case. The issue 

presented is whether section 744.108(1), Florida Statutes (2013), authorizes an award 

of fees and costs incurred by counsel for an emergency temporary guardian and 

counsel for a ward who was the subject of the emergency temporary guardianship when 

there was no later determination that the ward was actually incapacitated and, as a 

result, no later appointment of a plenary or limited guardian. Relying on our decision In 

re Guardianship of Klatthaar, 129 So. 3d 482 (Fla. 2d DCA 2014), the trial court held 

that section 744.108(1) does not authorize an award in such circumstances. We 

conclude that the trial court misapprehended the statutory text and our decision in 

Klatthaar; accordingly, we reverse as explained below and remand for proceedings 

consistent with this opinion. 

I. 

 On March 24, 2014, Nancy Gribler filed a verified petition seeking the 

appointment of a guardian of the person and property of Robert Edward Beck. The 

petition alleged that Mr. Beck, then ninety-one years old, was incapacitated due to 

dementia and that a plenary guardian was needed to manage his person and property. 

That petition set in motion a process specified in the Florida Guardianship Law, 

§§ 744.101-.1098, to arrive at a judicial determination of whether Mr. Beck was 

incapacitated and, if so, to appoint a guardian for such purposes as the trial court found 

necessary in light of the basis for any determination of incapacity. Section 744.331 sets 

forth the statutory procedures for determining whether a person alleged to be 

incapacitated is in fact incapacitated, including procedures for the appointment of 
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counsel for the alleged incapacitated person, the appointment of an examining 

committee to report to the court on whether the person is incapacitated, and the 

payment of fees and costs for court-appointed counsel to the alleged incapacitated 

person and for the members of the examining committee. 

Upon a determination of incapacity in accord with section 744.331, the trial 

court may appoint a plenary or a limited guardian. See §§ 744.102(9)(a), (b), .3371, 

.344. A plenary guardian is authorized to exercise all delegable powers of the 

incapacitated person, while a limited guardian is authorized to exercise only those 

powers specifically delineated in a court order. See § 744.102(9)(a), (b). 

 Simultaneously with her petition for appointment of a plenary guardian, 

Ms. Gribler filed a verified petition seeking appointment of an emergency temporary 

guardian. Under the Florida Guardianship Law, a trial court may appoint an emergency 

temporary guardian for the person or property of a person alleged to be incapacitated 

before the statutory process for determining incapacity and appointing a guardian just 

described has been completed. § 744.3031(1). Before appointing an emergency 

temporary guardian, the trial court must find that there is imminent danger to the health 

or safety of the alleged incapacitated person or that his or her property is in danger of 

being wasted, misappropriated, or lost. Id. An emergency temporary guardianship lasts 

for ninety days, subject to extension, or until the appointment of a guardian, whichever 

happens first. § 744.3031(3). 

 Ms. Gribler's petition for appointment of an emergency temporary guardian 

averred that Mr. Beck's health, safety, and property were endangered because Mr. Beck 

was incapacitated, his live-in caretaker had moved out, and no replacement caretaker 
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had been hired. It also alleged that appellee Don R. Berschback, the trustee of Mr. 

Beck's living trust and his health care surrogate, checked in on Mr. Beck only 

infrequently because Mr. Berschback resided in Michigan. Ms. Gribler further alleged 

that Mr. Berschback was attempting to move Mr. Beck from his residence in Lee County 

against his will and that Mr. Beck had not received any accountings with respect to the 

$15,000,000 living trust of which Mr. Berschback was trustee. 

 The trial court considered the petition ex parte and thereafter entered an 

order appointing Virginia C. Yates the emergency temporary guardian of Mr. Beck's 

person and property. Mr. Berschback subsequently appeared in the case and made an 

emergency motion to remove Ms. Yates and to terminate the temporary guardianship. 

The trial court denied that motion without prejudice on May 8, 2014. 

On June 3, 2014, Mr. Beck passed away. The parties agree that his death 

rendered moot any further proceedings with respect to a determination of whether he 

was incapacitated or whether a plenary guardian should be appointed. 

Thereafter, three petitions seeking reimbursement for attorney's fees and 

costs were filed with the trial court: (1) a petition by Mr. Kemp seeking reimbursement 

for services provided to Ms. Gribler as petitioner; (2) a petition by Mr. Kemp seeking 

reimbursement for services rendered to Ms. Yates as emergency temporary guardian 

for Mr. Beck; and (3) a petition by Mr. Chlipala, who represented Mr. Beck, seeking 

reimbursement for services rendered in representing him. Each petition was amended 

and, as amended, alleged entitlement to an award of fees and costs under section 

744.108(1) or, alternatively, a theory of unjust enrichment. Mr. Berschback filed 

objections to the petitions asserting that no statute authorized the trial court to award 
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fees and costs incurred prior to a determination that Mr. Beck was incapacitated and the 

appointment of a plenary or limited guardian, which never occurred in this case. He 

also asserted that recovery could not be had by way of unjust enrichment and that any 

fees and costs should be paid by Ms. Gribler, rather than Mr. Beck's estate, because 

she allegedly filed the petition for appointment of a guardian in bad faith. Mr. 

Berschback reserved the right to contest the reasonable amount of fees and costs in the 

event the trial court found that Mr. Kemp and Mr. Chlipala were entitled to such an 

award. 

After a hearing, the trial court entered a final order denying the petitions. It 

held that section 744.108(1) did not permit an award of fees and costs to Mr. Kemp or 

Mr. Chlipala because the statute is "limited to situations where a judicial determination 

of incapacity is found by the court . . . and an appointment of a [plenary or limited] 

guardian over a ward is ordered." It reasoned that this conclusion was required by our 

decision in Klatthaar. The trial court further held that a claim for unjust enrichment 

cannot be used to recover fees and costs where there is no statutory or contractual 

authority for such an award. Because its holdings that Mr. Kemp and Mr. Chlipala 

lacked a legal basis to recover fees and costs disposed of their petitions, the trial court 

did not address Ms. Gribler's alleged bad faith filing or the appropriate amount of fees. 

II. 

 Mr. Kemp and Mr. Chlipala have not raised any issue concerning the trial 

court's disposition of their claim for unjust enrichment. See Fla. R. App. P. 9.210(b)(5) 

(requiring parties to brief each appellate issue); see also Weaver v. Weaver, 95 So. 3d 

1029, 1030 (Fla. 2d DCA 2012) (deeming unbriefed issues abandoned). We therefore 
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address only whether section 744.108(1) authorizes an award of fees and costs 

associated with an emergency temporary guardianship where, as here, there is 

ultimately no judicial determination of incapacity and, as a result, no appointment of a 

plenary or limited guardian. This appears to be a question of first impression.1 

Because resolution of the question hinges on the construction of section 744.108(1), our 

review is de novo. McDade v. State, 154 So. 3d 292, 297 (Fla. 2014). 

 The starting point for our analysis is the text of section 744.108(1). See 

State v. Burger, 921 So. 2d 847, 848 (Fla. 2d DCA 2006) (explaining that statutory 

construction "begins by examining the statutory language"). That statute, which creates 

a right to fees and costs for certain parties in guardianship cases, provides as follows: 

A guardian, or an attorney who has rendered services to the 

ward or to the guardian on the ward's behalf, is entitled to a 

reasonable fee for services rendered and reimbursement for 

costs incurred on behalf of the ward. 

§ 744.108(1). The issue is whether the petitioners in this case fall into any one of the 

three categories of people—a guardian, an attorney who has rendered services to the 

 1The parties have not cited, and we have not uncovered, any decision 

addressing the question presented by the trial court's order. Other decisions have 

presumed, however, that fees under section 744.108(1) would be available in such 

circumstances. See, e.g., In re Guardianship of Snell, 915 So. 2d 709, 710 (Fla 1st 

DCA 2005) (reversing order awarding fees to emergency temporary guardian under 

section 744.108(1) in case where there was no determination of incapacity based on 

discrepancies in the order but without questioning that the emergency temporary 

guardian was entitled to fees under the statute); In re Guardianship of Schoyann, 637 

So. 2d 81, 82 (Fla. 4th DCA 1994) (reversing order awarding fees to emergency 

temporary guardian and counsel where there was no determination of incapacity 

because "[a]lthough section 744.108, Florida Statutes (1992)[,] entitles the attorney and 

guardian to a reasonable fee, such a fee would not include fees for services that 

appellee was enjoined from providing" (emphasis added)).
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ward, or an attorney who has rendered services to the guardian on the ward's behalf—

entitled to attorney's fees or cost reimbursement under this statute. 

A. 

 We first examine the status of Mr. Kemp in his capacity as counsel for Ms. 

Yates. We hold that, in that capacity, he was an attorney who rendered services to the 

guardian and is entitled to fees and costs to the extent that his services were rendered 

in connection with the guardian's activities "on behalf of [a] ward." § 744.108(1). 

Ms. Yates was the emergency temporary guardian appointed by the court 

to manage Mr. Beck's person and property. The fact that the statutory title of Ms. 

Yates's appointment is "emergency temporary guardian" on its face appears to establish 

that unless or until a plenary or limited guardianship is established or the emergency 

temporary guardianship expires, Ms. Yates is a guardian as described in section 

744.108(1). Cf. § 744.3031 (establishing an emergency temporary guardianship in part 

III of chapter 744 as a type of guardianship); Barrier v. JFK Med. Ctr. Ltd. P'ship, 169 

So. 3d 185, 190 (Fla. 4th DCA 2015) (explaining that an emergency temporary guardian 

"assumes a guardianship over a person not yet declared to be incapacitated and in 

need of a guardian"); Faulkner v. Faulkner, 65 So. 3d 1167, 1169-70 (Fla. 1st DCA 

2011) (holding that an emergency temporary guardian is a guardian for purposes of the 

attorney's fee provisions of section 744.331(7)). Mr. Berschback argues, however, that 

the term "guardian" in section 744.108(1) can refer only to a guardian appointed upon a 

determination of incapacity and not to an emergency temporary guardian appointed 

prior to such a determination. We disagree. 
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Section 744.102(9) defines the term "guardian" for purposes of the Florida 

Guardianship Law as "a person who has been appointed by the court to act on behalf of 

a ward's person or property, or both." We see no indication in section 744.108(1), or in 

chapter 744 generally, that the term "guardian" in section 744.108(1) means anything 

different from the meaning given by the statutory definition. Thus, regardless of whether 

Ms. Yates is a guardian appointed upon a determination of incapacity, she is a guardian 

for the purposes of section 744.108(1) if she (1) is a person appointed by the court (2) 

to act on behalf of the person or property (3) of a ward. 

The first two elements are unquestionably present here. Ms. Yates was 

appointed by the trial court, and the trial court's order, consistent with the emergency 

temporary guardianship statute, appointed Ms. Yates to "act on behalf of" Mr. Beck's 

"person or property." The only question, then, is whether Mr. Beck was a ward within 

the meaning of the statutory definition of the term "guardian."

Section 744.102(22) defines the term "ward" as "a person for whom a 

guardian has been appointed." While that definition may be useful for other purposes, it 

does not help answer the question of whether an emergency temporary guardian is a 

guardian as defined by section 744.102(9); saying that a ward is a person for whom a 

guardian has been appointed provides no useful information when the purpose of 

consulting the definition of ward is to determine whether a particular class of persons—

here, emergency temporary guardians—is a guardian. 

We think it clear, however, that the legislature included the person subject 

to an emergency temporary guardianship within the definition of ward. The current 

statutory definition of the term "ward" and the emergency temporary guardianship 
- 9 - 

statute were both created by the same 1989 legislative enactment. See generally ch. 

89-96, §§ 4, 19, Laws of Fla. The emergency temporary guardianship statute 

unambiguously states that the person subject to an emergency temporary guardianship 

is a ward. It authorizes the court to enter orders to protect "the person who is the ward 

of the emergency temporary guardianship." § 744.3031(4) (emphasis added). It 

requires an emergency temporary guardian for property to "account [for] the receipts 

and disbursements of all the property of the ward." § 744.3031(8)(b) (emphasis added). 

And it requires a temporary emergency guardian of the person to report on, among 

other things, the "medical condition, mental health[,] and . . . social condition of the 

ward." § 744.3031(8)(c) (emphasis added). The understanding of the term "ward" 

conveyed by the same enactment that defined that term is thus that the term includes a 

person who is subject to an emergency temporary guardianship.2

The understanding that the person subject to an emergency temporary 

guardianship is a ward is also the one shared by the cases that have considered the 

 2In looking to the understanding of a person subject to an emergency 

temporary guardianship conveyed by section 744.3031, we acknowledge that we are 

looking to statutory context and not the ordinary, everyday meaning of the term "ward." 

We do so because the statute clearly demonstrates that whatever the ordinary meaning 

of ward is, when that term is used in section 744.102(22), it includes a person subject to 

an emergency temporary guardianship. See Green v. State, 604 So. 2d 471, 473 (Fla. 

1992) ("[W]e give statutory language its plain and ordinary meaning, unless the words 

are defined in the statute or by the clear intent of the legislature."); State, Dep't of Health 

& Rehab. Servs. v. McTigue, 387 So. 2d 454, 456 (Fla. 1st DCA 1980) (explaining that 

a court looks to the ordinary meaning of an undefined term, "unless the wording of the 

statute or the context requires otherwise"). Moreover, notwithstanding the fact that the 

statutory definition of ward is unhelpful to resolving this case, it remains a defined term, 

and the ordinary meaning of that term is even broader than the definition the legislature 

gave it. Compare § 744.102(22) (defining ward only as "a person for whom a guardian 

has been appointed"), with Webster's Third New Int'l Dictionary (1986) (defining "ward," 

inter alia, as "a person who is under guard, protection, or surveillance"). 
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relationship between an emergency temporary guardian and the person subject to such 

a guardianship. In Faulkner, for example, the First District considered whether fees 

incurred by an examining committee evaluating the alleged incapacity of a person 

placed in an emergency temporary guardianship were reimbursable under the fee 

award provision of section 744.331(7). 65 So. 3d at 1168. The court observed that 

there is a gap in section 744.331(7) in that it provides that fees and costs incurred by 

members of an examining committee or counsel for an alleged incapacitated person are 

to be paid from "property of the ward" and that there would be no property of the ward 

from which to pay such fees and costs unless the person alleged to have been 

incapacitated was made a ward by the appointment of a guardian—leaving members of 

an examining committee or counsel for an alleged incapacitated person out of luck if no 

guardian is appointed. Id. at 1169. The court reasoned that the gap was not a problem 

for the examining committee in the case before it, however, because an emergency 

temporary guardian had been appointed. It held that the alleged incapacitated person 

was "a ward during the pendency of the incapacity proceeding because an emergency 

temporary guardian was appointed for her." Id. (citing § 744.102(22)). 

The understanding that the person subject to an emergency temporary 

guardianship is a ward is shared by other judicial decisions and the Florida Rules of 

Probate. See generally Fla. Prob. R. 5.648(e), (f); Barrier, 169 So. 3d at 190 

(concluding that an emergency temporary guardian's "powers should be limited to only 

those that are necessary to protect the ward's interests"); Jasser v. Saadeh, 97 So. 3d 

241, 248 (Fla. 4th DCA 2012) ("[W]hen the court conferred the ward's rights on the 

[emergency temporary guardian], it removed them from the ward . . . . "). In contrast, 
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we have been unable to locate any authority saying that the person subject to an 

emergency temporary guardianship should be regarded as something other than a 

ward. 

Mr. Berschback contends that the person subject to an emergency

temporary guardianship is regarded by the Florida Guardianship Law as an alleged 

incapacitated person and not as a ward. See § 744.3031(1) ("A court, prior to 

appointment of a guardian but after a petition for determination of incapacity has been 

filed . . . , may appoint an emergency temporary guardian for . . . an alleged 

incapacitated person."). Although Mr. Berschback is correct that the person subject to 

an emergency temporary guardianship is an alleged incapacitated person, it does not 

follow that an alleged incapacitated person for whom an emergency temporary guardian 

is appointed is not also a ward of that emergency temporary guardian. The person is an 

alleged incapacitated person in that he or she has been alleged by a petitioner to be 

incapacitated and the question of incapacity has not yet been judicially determined. 

See Barrier, 169 So. 3d at 190 (explaining that an emergency temporary guardian 

"assumes a guardianship over a person not yet declared to be incapacitated and in 

need of a guardian"). He or she is also a ward if an emergency temporary guardianship 

is established because a court order appointing an emergency temporary guardian 

creates that relationship between the two parties. See Faulkner, 65 So. 3d at 1169-70. 

The terms "alleged incapacitated person" and "ward" thus serve different purposes—

one related to the judicial determination of capacity, the other related to the relationship 

to the emergency temporary guardian and the person he or she protects—and we see 

no inconsistency in their simultaneous application to the same person in circumstances 
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where an alleged incapacitated person has been made a ward by virtue of the 

appointment of an emergency temporary guardian. 

Having concluded that a person subject to an emergency temporary 

guardianship is a ward, it follows that the emergency temporary guardian is a guardian 

as described in section 744.108(1) when an emergency temporary guardianship is at 

issue and that counsel to such a person is "an attorney who has rendered services to 

. . . the guardian" within the meaning of that same statute. As such, an attorney for the 

emergency temporary guardian is entitled under that statute to recover fees and costs 

even where, as here, the ward is not later determined by the court to be incapacitated 

and a plenary or limited guardian is not appointed. 

In reaching the opposite conclusion, the trial court found our decision 

Klatthaar controlling. In Klatthaar, we considered whether counsel appointed by the 

court pursuant to section 744.331 to represent an alleged incapacitated person in a 

proceeding to determine capacity was entitled to fees under section 744.108(1) where 

the alleged incapacitated person had died before the capacity determination could be 

made. 129 So. 3d at 484-85. The petitioner in that case sought the appointment of an 

emergency temporary guardian pending a capacity determination, but the trial court 

denied that request. Id. at 483. We reversed the trial court's order awarding fees and 

costs, holding that "since a guardianship was never established and a guardian was 

thus not appointed, section 744.108 is not triggered in this case." Id. at 485. We 

observed that section 744.108 does not authorize an award of fees to court-appointed 

counsel for an alleged incapacitated person because that term is not used in that 

statute, although the term "incapacitated person" is used in various sections. Id. at 485. 
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We also explained that both a guardian and a ward must exist before fees and costs 

may be awarded under section 744.108(1).3 Id. at 486. 

Klatthaar is not applicable here. The trial court in Klatthaar denied the 

petitioner's request for a temporary emergency guardian, and the alleged incapacitated 

person died before the trial court could decide whether to appoint a plenary or limited 

guardian. Id. at 483. Because no guardian of any type was ever appointed, there was 

never a ward that was represented by the court-appointed lawyer. There was only an 

alleged incapacitated person that the lawyer was appointed to represent for purposes of 

the capacity determination, and no determination of capacity was ever made. Under no 

interpretation of section 744.108(1) would the court-appointed lawyer have been entitled 

to a fee because under no interpretation could the lawyer have been deemed to 

represent either a guardian or a ward. The Klatthaar court thus had no occasion to 

consider how the terms "guardian" and "ward" in section 744.108(1) apply to a 

temporary emergency guardianship. That question simply was not presented.4

 3Klatthaar also held that the attorney for the alleged incapacitated person 

and the members of an examining committee were not entitled to fees and costs under 

section 744.331(7) due to the statutory gap described in Faulkner. 129 So. 3d at 484-

85; see also In re Steiner, 159 So. 3d 253, 254-55 (Fla. 2d DCA 2015) (same). This 

aspect of Klatthaar is not relevant to this case, however, because neither Mr. Kemp nor 

Mr. Chlipala sought fees under section 744.331(7). 

4Mr. Berschback points to a statement in Klatthaar that "the one

underlying consistency in the case law pertaining to fee awards under section 744.108 

is that the alleged incapacitated person was adjudicated as such, thus becoming a 

ward," 129 So. 3d at 486, and characterizes it as a holding that there must always be an 

adjudication of incapacity before fees may be awarded. That characterization ignores 

the fact that Klatthaar involved circumstances in which the only way a ward could exist 

was upon a determination of incapacity and the appointment of a guardian; incapacity 

was the basis for the petition, and the trial court denied appointment of an emergency 

temporary guardian. Whether fees could be awarded upon the appointment of an 

emergency temporary guardian was not at issue. Neither Klatthaar nor the cases it 
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This case, however, does present that question, and we hold that in the 

context of an emergency temporary guardianship, the emergency temporary guardian is 

a guardian and the subject of the guardianship is the ward for purposes of section 

744.108(1). The trial court's conclusion that Mr. Kemp, as counsel to the emergency 

temporary guardian, Ms. Yates, was not entitled to fees and costs simply because no 

plenary or limited guardian was appointed was thus in error, and we therefore reverse. 

On remand, the trial court should determine the extent to which the fees and costs 

incurred by Mr. Kemp while representing Ms. Yates are compensable under section 

744.108(1), the reasonable amount of any such fees and costs, and the factual and 

legal merits, if any, of the bad faith issue raised by Mr. Berschback. 

B. 

 Mr. Kemp's service as counsel to Ms. Gribler as petitioner is a different 

matter. Ms. Gribler was, under the facts of this case, solely a petitioner seeking a 

determination of incapacity and the appointment of a guardian for an alleged 

incapacitated person. Even though an emergency temporary guardian was appointed, 

Ms. Gribler was never a guardian or a ward under section 744.108(1). Mr. Kemp's 

representation of Ms. Gribler was thus not, under the plain language of the statute, 

directed toward the categories of persons—either guardian or ward—covered by section 

744.108(1). We recognize, however, that in Thorpe v. Myers, 67 So. 3d 338, 345 (Fla. 

2d DCA 2011), our court held that counsel to such a petitioner might be entitled to fees 

to the extent that the petitioner's request for the determination of incapacity and the 

 

cited held, stated, or implied that section 744.108(1) prohibited an award of fees where 

an emergency temporary guardian was appointed but no subsequent determination of 

incapacity was made. 
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appointment of the guardian redounds to the benefit of the ward—a party recognized 

under the statute. 

 The trial court denied all of the fee requests in this case based upon its 

erroneous conclusion that the statute could not apply unless and until Mr. Beck was 

determined to be incapacitated and a plenary or limited guardian was appointed. The 

trial court thus never had occasion to consider whether Mr. Kemp's services to Ms. 

Gribler as petitioner benefitted Mr. Beck as the ward of the emergency temporary 

guardianship. See Thorpe, 67 So. 3d at 345 ("[T]he attorney's entitlement to payment 

of reasonable fees and costs is subject to the limitation that his or her services must 

benefit the ward.").5 Accordingly, we reverse the denial of Mr. Kemp's fee request made 

for his representation of Ms. Gribler and remand for the trial court to consider whether 

any portion of that representation benefitted the ward—a category of represented 

person for which fees might be awarded under section 744.108(1)—such that he might 

be entitled to seek fees under the statute. 

C. 

 Last, we address Mr. Chlipala's petition for fees and costs incurred in 

representing Mr. Beck. As stated earlier in this opinion, as soon as Ms. Yates was 

 5Unlike here, where the proceedings were interrupted by the death of the 

ward, the ultimate determination of incapacity and guardianship in Thorpe was 

completed. The benefit to the ward from the filing of the petitions by her children, and 

the resulting entitlement to some portion of fees for those services, was therefore 

deemed "unquestionable" under the facts of that case. 67 So. 3d at 345. However, we 

note that in Butler v. Guardianship of Peacock, 898 So. 2d 1139, 1141 (Fla. 5th DCA 

2005), the case on which Thorpe relied, the ward's daughter sought to be appointed 

instead of an independently appointed temporary guardian. Because this petition was 

ultimately denied, the fees sought were determined to be for services that were not for 

the benefit of the ward under the facts of that case. 898 So. 2d at 1141. 
- 16 - 

appointed as Mr. Beck's emergency temporary guardian, Mr. Beck became a ward. 

Under section 744.108(1), an attorney rendering services to a ward is entitled to an 

award of fees and costs incurred in that representation. It was error for the trial court to 

decide that Mr. Chlipala was not entitled to fees and costs under section 744.108(1) 

solely because Mr. Beck died before his capacity was judicially determined and before a 

plenary or limited guardian was appointed. 

 Mr. Berschback argues, however, that Mr. Chlipala was appointed by the 

trial court pursuant to section 744.331 and that his entitlement to fees and costs must 

arise, if at all, exclusively from section 744.331(7)—a statute under which Mr. Chlipala 

never sought fees and costs. We are unable to resolve this argument because our 

record does not disclose the purpose for which Mr. Chlipala was appointed or the 

services the trial court contemplated he would provide. Further, after this case was 

argued, Mr. Berschback filed a notice of suggestion of Mr. Chlipala's death, and no 

party has filed a motion for substitution. See Fla. R. App. P. 9.360(c)(3). On remand, 

the trial court should determine whether there is a basis to proceed with respect to Mr. 

Chlipala in keeping with this opinion and in relation to his subsequent death. 

III. 

 In sum, we hold that even where there is no ultimate determination of 

incapacity and no ultimate appointment of a plenary or limited guardian, counsel to an 

emergency temporary guardian and to the ward of such a guardianship are entitled to 

an award of fees and costs under section 744.108(1). We reverse the trial court's order 

insofar as it denied fees to Mr. Kemp in his capacity as counsel to Ms. Gribler, fees to 

Mr. Kemp in his capacity as counsel to Ms. Yates, and fees to Mr. Chlipala in his 
- 17 - 

capacity as counsel for Mr. Beck. We remand for such further proceedings as are 

described in and otherwise consistent with this opinion. 

 Reversed and remanded. 

KHOUZAM and BADALAMENTI, JJ., Concur.