In a plenary guardianship, all of the Ward’s delegable rights are delegated to the guardian; no rights are reserved for the Ward.  § 744.102(9)(b), Florida Statutes.  These delegated rights are found in § 744.3215(3)(a-g) and include the following: to contract; to sue and defend lawsuits; to apply for government benefits; to manage property or to make any gift or disposition of property; to determine his or her residence; to consent to medical and mental health treatment; and to make decisions about his or her social environment or other social aspects of his or her life.  A plenary guardianship is the most common type of guardianship.  There are statutory procedures in place wherein the ward may have his rights restored at a later time; however, according to a 1998 study commissioned by the Claude Pepper Foundation, such restoration of rights only occurs in 2.63% of guardianship cases. 

In a limited guardianship, the appointed guardian is appointed to exercise some, but not all, of the delegable rights listed above.  § 744.102(9)(a), Florida Statutes.  The order appointing a limited guardian must state the scope of the guardians delegated rights and duties. 

A preneed guardian may also be appointed in two instances.  First, a person designates who shall serve as his or her own guardian in the event the person becomes incapacitated or needs a guardian for any other reason.  Second, a parent may select the person(s) who will serve as the guardian of their minor children should the parent die or become incapacitated while the child is still in the age of minority.  A preneed guardian eliminates the need for prolonged litigation in the appointment of a guardian because the court must appoint the selected guardian if that person is otherwise qualified to do so, pursuant § 744.3046(7). 

A “standby” guardian may be used by the Court after a guardian is appointed.  A “standby” guardian takes on the duties and powers of the appointed guardian within twenty (20) days of the death or resignation of the appointed guardian.  However, the “standby” guardian has no immediate duties or powers.

In some cases, a parent may see their child go through a sudden, unexpected fight with cancer; a brother may be trying to take advantage of his wealthy but impaired sibling by stealing his financial assets; or a daughter might have witnessed the advisors of her mentally incompetent mother conspiring to misappropriate her assets.   There may be circumstances where immediate action is necessary in order to protect the health and/or financial welfare of such a person.  In these cases, an adult interested in the welfare of a loved-one may wish to petition the court for an emergency temporary guardianship (ETG).  While, the typical ETG is used for incapacitated senior citizens, there are scenarios with teenagers and other young adults who may be abusing drugs and/or alcohol as to warrant the imposition of an emergency temporary guardianship. 

 §744.3031 (1), Florida Statutes, states as follows regarding the requirements for the appointment of an emergency temporary guardian:

The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. 

If appointed with the task of being the emergency temporary guardian, this guardian would be required to take an oath to faithfully perform the duties of a regular guardian.  This temporary guardianship will last for 90 days or until a permanent guardian is appointed, whichever comes first.  Such duties would include the handing of the ward’s finances, the making of medical decisions if no healthcare surrogate had been nominated, and the overall maintenance of the ward’s affairs.  Additionally, the emergency temporary guardian must file a final report of the ward’s financial status no later than 30 days after the expiration of this appointment.    

The most important factor for the court to assess in deciding whether an emergency temporary guardian is necessary is how apparent the “imminent danger” actually is to the person in question.   

The interpretation and application of “imminent danger” is extremely subjective and varies on a case-by-case basis.  Although case law is rather bare on the subject, the court in Batzle v. Baraso, 776 So.2d 1107 (Fla. 5^th DCA, 2001) approved the appointment of an emergency temporary guardian when the ward was diagnosed with a progressive form of cancer.  In this case, the appointment was approved even though there was no adjudication that the ward was mentally incompetent.  The court in Borck v. Borck, 906 So.2d 1209 (Fla. 4^th DCA, 2005) authorized the appointment of an emergency temporary guardian after finding that the ward was suffering from Alzheimer’s disease, was legally blind, and was hearing impaired.  In addition, the petitioner made allegations that the ward was being abused by the respondent and that this abuse was interfering with the nursing staff’s ability to properly care for the ward.

It is always difficult to see a loved-one who is physically or mentally suffering; and it is even worse to see others trying to take advantage of that illness for their own personal or financial gain.  Depending on the specific circumstances, the appointment of an emergency temporary guardian can be a very useful tool to help prevent such a misappropriation of a love-one’s assets and/or protect the ward’s physical health and well-being.

What are advance directives?

With about 80 percent of deaths occurring in hospitals or nursing homes, you can use advance directives, in the form of a living will, to let their doctors and family know what kind of treatment you do not want in case you are incapable of making the decision.  A living will does not mean you want to forego life-saving treatment; it simply sets forth how you want, or don’t want, aggressive high technology treatment, feeding tubes, respirators, and other life support measures.

Although the original health care bill provided that Medicaid could pay for consultations about end of life issues, this provision was unfortunately dropped as part of the final bill, due in part to the “death panel” hysteria and the labels that were attached to the issue.

It’s a good idea to sit down with your family and talk about your decisions and instructions.  Another potential area to address is to consult an attorney and discuss the possibility of a pre-need guardian.  A “preneed guardian” is a person named in a written declaration to serve as guardian in the event of the incapacity of the declarant as provided by statute.  Florida’s preneed guardian statute works as follows:

• A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity.  The written declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time.
• The declarant may file the declaration with the clerk of the court. When a petition for incapacity is filed, the clerk shall produce the declaration.
• Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian. The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.
• The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity.
• If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that such preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
• Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian pursuant to ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.

One of the fundamental advantages to the preneed guardian advance directive is it essentially insures that the person or professional you want to serve as your guardian is in fact the one selected by the court.  Of course, this is subject to the qualification and fitness of the person selected.  For example, in Davis v. King, 686 So. 2d 763 (Fla. Dist. Ct. App. 5th Dist. 1997) in a contested guardianship litigation, the court found the preneed guardian unqualified to serve as plenary guardian upon a determination of the ward’s incapacity based on evidence that the preneed guardian had paid off her mortgage using the ward’s money, had purchased real property owned by the ward for less than market value, and that the ward’s bank account had been depleted during the same time period.

An interesting and potentially very difficult element arises in last will and testament contests when the testator has been declared incompetent.  Even though the lawyers in our firm focus their practice on the probate litigation and trust litigation issues,  we recently dealt with a difficult set of circumstances in a will dispute that underscored the importance of being able to prove the decedent’s mental capacity at the time of her signing her estate planning documents.  In this matter the decedent/testator had been appointed a plenary guardian, meaning her rights had been taken away and given to a guardian. 

Our client had been separated from her family (all of whom resided out of state) and a recent friend had petitioned the Court for appointment of a guardian, which the Court approved.  While under the care of the guardian, the testator was moved around so that the out-of-state relatives did not have contact with her and were unable to locate her for substantial periods.  Despite that a guardian was being appointed, the decedent was seen by a physician and psychiatrist and was found to be lucid.  She then signed a will, leaving her recent friend (who had asked for the guardianship in the first place), and charities which he solely controlled, the entirety of her quite substantial estate.

When the last will and testament of the decedent was sought to be probated, based upon the date of this will that was signed during a time she was declared incapacitated by the court, it would seem unlikely that the will would be admitted and administered based upon the decedent having been appointed a plenary guardian at the time the documents were executed.  However, the case of American Red Cross v. Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998) explains how this unusual conclusion may exist.

In Haynsworth the controversy concerned three separate wills, all executed during 1993 on February, July and November.  In July of 1993, a Judge entered an order, nunc pro tunc to May 18, 1993, declaring the testator totally incapacitated.   The testator died in December, 1995, and the following months probate proceedings were instituted seeking to administer the February 1993 last will and testament.  Other beneficiaries in Haynsworth subsequently petitioned for the July and November wills to be admitted, despite the decedent being declared totally incapacitated at the time.   

The law in Florida is that where the subject last will and testament is executed after the testator has been declared legally incompetent, it must be proved that the testator returned to a state of testamentary capacity by demonstrating that the will was executed during a lucid moment.  See In re Estate of Supplee, 247 So. 2d 488, 490 (Fla. 2d DCA 1971)(stating “Florida law is likewise well settled to the effect that although an incompetency adjudication creates a presumption of lack of testamentary capacity as to any will thereafter executed during the continuance of such adjudication, that such presumption may be overcome on proof that the will was executed by the adjudged incompetent during a lucid interval.”)  The terms “lucid moment” or “lucid interval” do not describe a moment when the testator was not patently delusional, rather a “lucid moment” is a period of time during which the testator returned to a state of comprehension and possessed actual testamentary capacity.  Haynsworth at 606.

Haynsworth went on to set forth the evidentiary burden in presenting evidence as to the capacity of the individual who had been declared incapacitated; it rests with the will proponent .  Id. at 606, citing In re Estate of Ziy, 223 So. 2d 42, 43 (Fla. 1969); Grimes v. Estate of Stewart, 506 So. 2d 465, 467 (Fla. 5^th DCA 1987) (finding “[a]though a declared incompetent may have sufficient lucid moments during which to execute a valid will, nevertheless, adjudication of incompetency of a testator creates a prima facie case against the proponent of such a will.”).  The result in Haynsworth was striking the wills that were created during the testator’s court-determined incapacity (because there was no direct evidence of the testator’s lucidity on the days he executed the wills) and then invalidating a provision under the February will which was found to be the result of undue influence.  The unduly influenced part of the will was invalidated then reverted to the residuary. 

In the matter with which my firm was recently dealing, the incapacitated individual had in fact been examined by physician and psychiatrist on the date she executed the new will, and immediately thereafter a judicial determination was sought and entered regarding her capacity to make that new last will and testametn.  However, such a determination was made in the decedent’s mental health file not the Guardian case.  This distinction is important because mental health files (and the report of the examining committee) are not available to the general public whereas guardian files are generally available for inspection at the Clerk of Court.  As such, several years later after her passing when the relatives sought to invalidate the will made during the time their aunt was under a guardianship (and declared incapacitated), their challenge was denied based upon the proponent’s ability to satisfy the evidentiary burden that the testator was having a sufficient lucid moment at the time of execution of the new will.

An ordinary or standard power of attorney document provides the authority for another person (the agent or attorney-in-fact) to make decisions and take actions on the principal’s behalf when the principal is unable to do so for himself or herself.  In the event the principal becomes physically incapacitated, and for example, they break a hip and need extensive rehabilitation, then the principal will not be able to attend to their normal monthly payment of bills or banking transactions.  Also, the principal may plan to take an extended trip or vacation, and may need to have documents executed while they are away.  The ordinary or standard power of attorney document would authorize the principal’s chosen agent or attorney-in-fact to sign documents, receive and pay bills and make banking transactions on the principal’s behalf.  An ordinary or standard power of attorney would become invalid if the principal became mentally incapacitated.

A durable power of attorney is a document that would authorize the principal’s chosen agent or attorney-in-fact to execute documents, receive and pay bills and make banking transactions on the principal’s behalf (as well as many other actions), but would remain effective even if the principal became mentally incapacitated.  It is possible to have the power of attorney document drafted to be broad in scope, giving the agent or attorney-in-fact the authority to make any and all property, financial, and personal decisions for the principal; or the power of attorney document could be drafted to authorize the agent or attorney-in-fact to perform very limited, specific duties for the principal.

Florida Statute 709.08 outlines the formalities involved with the creation of a durable power of attorney, who may serve as the agent or attorney-in-fact, and provides information as to the durability of the power of attorney in Florida Statute 709.08(3)(b), which states:  “The attorney in fact may exercise the authority granted under a durable power of attorney until the principal dies, revokes the power, or is adjudicated totally or partially incapacitated by a court of competent jurisdiction, unless the court determines that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact.”

What happens to either of the powers of attorneys mentioned above when a person is incapacitated and someone petitions to have him or her declared a Ward of the State of Florida?  Florida Statute 744.462 provides a guideline for the Court to consider when a person already has a valid Durable Power of Attorney executed.  The law provides that if the Durable Power of Attorney is the least restrictive means that can be used to meet all the needs of the principal (the Ward), then a guardianship would not be necessary.  Florida Statute 744.462 states as follows:  “Any judicial determination concerning the validity of the ward’s durable power of attorney, trust or trust amendment shall be promptly reported in the guardianship proceeding by the guardian of the property.  If the instrument has been judicially determined to be valid or if, after the appointment of a guardian, a petition is filed alleging that there is an alternative to guardianship which will sufficiently address the problems of the ward, the court shall review the continued need for a guardian and the extend of the need for delegation of the ward’s rights.”

If the Ward has a Durable Power of Attorney that the Court determines to be valid, depending on the scope of the language included in the Durable Power of Attorney, the Court may determine that a Guardian is not needed, and that the person appointed as the agent or attorney-in-fact for the Ward can act for the Ward in making decisions without the need for Court intervention and the appointment of a permanent Guardian.

A guardianship is a legally binding relationship where a Probate Court authorizes a Court appointed Guardian to make all personal and/or financial decisions for the incapacitated person as determined by the Court.  The Court could determine that the Ward only requires a Guardian to make decisions regarding the Ward’s finances and property, or health and medical decisions, or both.  The Probate Court determines the extent of the Ward’s incapacity at a hearing held to determine what rights the Ward should retain, if any, and what needs the Ward is unable to meet for his or her health, safety and well being.  If the Probate Court determines that there are essential health, safety, medical, financial or legal needs that are not being met by the Ward due to the Ward’s incapacity, the Court will appoint a Guardian to make those decisions for the Ward. (See Florida Statute 744.3215 regarding Rights of Persons Determined Incapacitated.)  After the Probate Court appoints a Guardian, that Guardian is required by law to report to the Court on an annual basis.  Annual filing fees will be required to accompany any and all reports filed by the Guardian to meet the Court’s reporting requirements.  In the event the Guardian fails to report to the Court on an annual basis, the Court has the power to discharge that Guardian and appoint another person as Guardian who will comply with the annual reporting requirements.

When comparing the Durable Power of Attorney and the Guardianship, the Durable Power of Attorney can be a relatively low cost and private way to determine who will be granted the authority to legally act for the principal in the event the principal can no longer act or speak for themselves.  If there is no Durable Power of Attorney in place, then Court intervention may be necessary if the person is deemed incapacitated, and Court proceedings can become costly.  Also, the principal (Ward) may not be able to chose who they wish to be appointed as their Guardian, as that decision is ultimately made by the Probate Court.

Guardianship litigation and probate litigation usually follow each other although with any amount of luck, a skilled estate and guardianship litigator might structure a global resolution that reaches beyond the Ward’s death to the satisfaction of the fighting relatives.

It is well known and recognized that Florida is home to a large population of older people who have outlived outlived all those who care for them.  Sometimes, because these persons are vulnerable and susceptible to exploitation,  it becomes necessary to seek the protection of the court’s system of guardianship.   Often, I encounter situations where there are individuals who, although they still have relatives and friends who want to manage their finances, their friends and relatives may be fighting among themselves, or may be financially or emotionally exploiting the individual.  These situations also present circumstances that may warrant a court’s examination of what may be in the older person’s best interest.

The first thing to examine when considering whether and to what extent a guardianship is necessary are the alternatives to guardianship.  Many times, my clients goals are achieved by simply having their loved one delegate certain executive functions to a family member or trusted friend who can manage their affairs without the need for a court-ordered guardianship.  Other times, this type of delegation, often achieved through estate planning documents (e.g., Living Trust, Durable Power of Attorney, Health Care Surrogate), can serve as the vehicle through which tragic exploitation occurs.

Nevertheless, when a court is presented with sufficient facts warranting an examination of a person, it will issue an order in accordance with the Florida Guardianship Act, which provides that the court must first consider alternatives to guardianship.  A guardian may not be appointed if the court finds there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person.  Section 744.331(6)(b) of the Act provides:

“Order determining incapacity.–If, after making findings of fact on the basis of clear and convincing evidence, the court finds that a person is incapacitated with respect to the exercise of a particular right, or all rights, the court shall enter a written order determining such incapacity. A person is determined to be incapacitated only with respect to those rights specified in the order.

 * * *

(b) When an order determines that a person is incapable of exercising delegable rights, the court must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. A guardian must be appointed to exercise the incapacitated person’s delegable rights unless the court finds there is an alternative. A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person.”

A Fourth District appellate court decision illustrates how courts jealously guard an incapacitated person’s right to first be afforded alternatives to guardianship before the court will consider appointing a guardian and taking away a person’s substantive rights to manage their own affairs.  In  Smith v. Lynch 82 So.2d 1197, 27 Fla.L.Weekly D1717 (Fla. 4th DCA)  a well intending niece and nephew of their aunt sought the court to determine that she was incapacitated and should be subject to a guardianship.  The aunt’s husband and her step daughter argued that because the aunt had previously given them a durable power of attorney to manage and deal with her property a guardianship wasn’t necessary, even if the aunt was determined to be incompetent. 

The court first observed that the aunt was competent when she made and delivered her durable power of attorney (DPOA) event though there was a physician who testified that he examined her at the same time and that he concluded she had a moderate dementia of the Alzheimer’s type.  He added that he did not believe that she had the mental capacity “to make those kinds of decisions.” Her husband testified that at that time she had both good and bad days; she had times when she was lucid and times when she forgot where she was and what she was doing. The step-daughter testified that on the precise day when she executed the DPOA the aunt was lucid.

Next, the court turned to the issue of whether a guardian was necessary.  The court emphasized the following statement codified by the Florida legislature at Fla.Stat.§744.344(2):

“The Legislature finds that adjudicating a person totally incapacitated and in need of a guardian deprives such person of all her or his civil and legal rights and that such deprivation may be unnecessary. The Legislature further finds that it is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs. Recognizing that every individual has unique needs and differing abilities, the Legislature declares that it is the purpose of this act to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf. This act shall be liberally construed to accomplish this purpose.”

The Court examined all the circumstances, including the close relationship of the husband and step-daughter, and found that the expense and intrusion of a formal Guardian into this family was not indicated by the circumstances. 

Generally, it has been my experience that courts will carefully balance all the circumstances of each individual and unique case and will not appoint a guardian when it will serve no useful purpose and will unnecessarily interfere with the family.   When an issue arises concerning whether and to what extent a guardianship or alternatives to guardianship should be considered, it is imperative to consult a probate attorney to explore all of the options and the implications involved in this complicated judicial process.

The decision of whether and when to petition for incapacity of an elderly relative is challenging and can rarely be accomplished without the assistance of an experienced practitioner. However, even with an experienced attorney the frustration level is high for parties involved in the guardianship process, due in part to the lack of clarity and direction contained in the relevant portions of the law.

The procedure for asking a Florida court to declare someone incapacitated is codified in Florida Statute §744.331(4) which explains the process following the petition to determine incapacity:

“Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion[.]“

The statute also provides that “[e]ach member of the examining committee shall examine the person. Each examining committee member must determine the alleged incapacitated person’s ability to exercise those rights … [citation omitted].”

“Each member of the examining committee must submit a report within 15 days after appointment.” Importantly, the statute provides that if a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.
The Fifth Circuit recently illuminated some of the probate code’s deficiencies in its examination of an incapacity proceeding in Levine v. Levine, –So.2d–, 2009 WL 482260 (Fla. 5th DCA, February 27, 2009), 34 Fla.L.Weekly D452a. Levin was commenced through the filing of an incapacity petition by Dr. Scott Levine seeking guardianship over his father, Norman Levine. Pursuant to the statute detailed above, the probate court appointed a three-member examining committee.

The examining committee members concluded that Mr. Levine was not incapacitated. Thereafter, Bonnie Stimmel, Norman’s daughter, moved to dismiss the incapacity petition pursuant to section 744.331(4), which provides “[i]f a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.” Bound by the language of the statute, the probate court had no choice but to dismiss the petition, and an appeal was filed by Dr. Levine to the Fifth District.

The Court of Appeals took advantage of the opportunity to discuss the problematic statute and made some practical suggestions for overcoming some of the statute’s shortcomings. First, the court of appeals suggests that in order for a petitioner to have the issue of incapacity heard when the report of the examining committee concludes no incapacity but contains material defects, a party should:

“Rather than conducting an evidentiary hearing to test the examining committee’s report, an action that would violate the statute as discussed above, a more appropriate remedy would be for the court, or any interested party, to move to strike the report. If such a motion is granted, the court could then order a re-examination by the existing committee (or committee member) or appoint a new committee (or committee member) and order a re-examination.”

Another issue clarified by the Fifth District was the payment of committee’s fees following their finding of no incapacity. The court noted: “[w]hile section 744.331(7)(a) allows the trial court to award members of the examining committee reasonable fees, subparagraph (c) of that section provides that the cost and attorney’s fees of a dismissed petition are to be assessed against the petitioner only if the court finds the petition to have been filed in bad faith. The court made no such finding here. We recognize that the statute has a gap in determining responsibility for payment of the examining committee fees when a good-faith petition is denied or dismissed. See Ehrlich v. Severson, 985 So. 2d 639, 640 n.1 (Fla. 4th DCA 2008). As did the Ehrlich court, we urge the Legislature to specify who pays the examining committee fees in this circumstance.

I am hopeful that the probate bar and legislature can work together to close these gaps in the code and applaud the Fifth Circuit for their direction and encouragement to do the same.

The decision of whether and when to have a loved one declared incompetent is a difficult and challenging process, and should involve an attorney who is familiar with the issues and procedures of guardianship law. In Florida, the guardianship statutes provide for certain procedures to protect the rights of the person who is allegedly incompetent.

The process generally involves the filing of a Petition to Determine Incapacity. Fla.Stat. §744.331(1). Thereafter, the Court will appoint an examining committee to assess the mental and physical condition of the person who is allegedly incapacitated. Fla.Stat. §744.331(4). Depending on the report presented to the Court, a hearing will be conducted wherein testimony and other evidence is heard, and the Court decides if the alleged incapacitated person is actually incapacitated and then whether a guardian is necessary.

When a person is declared incompetent by a Florida court, the judge often is presented with conflicting applications by different persons, often family members of the incompetent person, who propose to be guardian and look after the financial and medical affairs of the incompetent.

Although Florida judges are afforded wide discretion in these difficult decisions, there are some statutory guidelines regarding the considerations in the appointment of guardians. Florida law directs that a person related by blood or marriage receives preferential treatment. The law also directs courts to consider the following:

“(1) Subject to the provisions of subsection (4), the court may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not.
(2) The court shall give preference to the appointment of a person who:
(a) Is related by blood or marriage to the ward;
(b) Has educational, professional, or business experience relevant to the nature of the services sought to be provided;
(c) Has the capacity to manage the financial resources involved; or
(d) Has the ability to meet the requirements of the law and the unique needs of the individual case.
(3) The court shall also:
(a) Consider the wishes expressed by an incapacitated person as to who shall be appointed guardian;
(b) Consider the preference of a minor who is age 14 or over as to who should be appointed guardian;
(c) Consider any person designated as guardian in any will in which the ward is a beneficiary.
(4) If the person designated is qualified to serve pursuant to s. 744.309, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.” Fla. Stat. § 744.312.

Even though the statute directs that “a person who is related by blood or marriage to the ward” receives preference in appointment; the inquiry does not end there. The court also has the discretion to give preference to a non-relative who possesses particular experience or ability to serve as guardian. See, e.g., Treloar v. Smith, 791 So. 2d 1195 (Fla. 5th DCA 2001) (finding that while next of kin are given first consideration, statute does not mandatorily require that such an appointment be made; rather, statute specifically provides that court may appoint any person who is qualified, whether related to the ward or not). Moreover, it is the best interest of the ward that trumps other considerations in the appointment of a guardian. See, e.g., In re Guardianship of Stephens, 965 So. 2d at 852 (“The best interests of the Ward — which include choosing a qualified guardian for the Ward — come first. Family member preference in and of itself is secondary, regardless of how well qualified the family members are.”).

These principals were recently examined by the Florida Third District court of Appeals when it reviewed the decision of a Palm Beach County Probate Judge in Morris v. Knight, 34 Fla.L.Weekly D321a; –So.2d–; 2009 WL 321586, February 11, 2009 (Fla.3rd DCA) which involved an appeal of Judge Karen Martin’s decision to appoint a guardian over Estelle Pratt Barker, a ninety seven year old woman who was found to be incapacitated.

Judge Martin of the Palm Beach County Probate Court was faced with three individuals who petitioned for guardianship and control of Ms. Barker’s person and property: Ms. Glinton, who is Barker’s first cousin; Ms. Morris, whose mother is Barker’s first cousin; and Mr. Knight, who is a neighbor and friend of Barker. A hearing was held on the three competing petitions.

The testimony revealed that Glinton and Morris were related to Ms. Barker, however, there was also testimony from Barker’s attorney that in the thirty years that he served Barker, she never talked about or came in with any family member except Ms. Morris.

Regarding Knight, Glinton asserted that he used Barker’s money to purchase a new car for himself and that he had been Baker Acted for mental illness. Glinton, however, could not offer any evidence of such allegations during her testimony, and the court thus found them to be false. The court also determined that Glinton made other representations not supported by evidence and ultimately found her unfit to serve as guardian.

The testimony revealed that Mr. Knight had known Barker since he was a child visiting his grandmother who lived across the street from Barker in the 1960s. “Knight is a former U.S. Marine and retired sanitation worker for the City of West Palm Beach. He has also worked as a mental health technician and as an aide in a nursing home. He now receives both Veteran’s Administration benefits and a pension from the City of West Palm Beach. At trial, Knight stated that from about 1999 to 2002, Barker’s family did not visit her much. Knight would see Barker come out on the porch of her home around 7:00 a.m. each day and sit alone all day. Knight began stopping by to bring Barker coffee and food, to visit with her, and to wash her clothes and clean her house. When Barker’s doctor made the decision to place Barker in a nursing home, Knight continued to visit her there six days a week for two hours each day. Knight testified that he intends to continue visiting Barker, washing her clothes, and bringing her snacks whether he is appointed guardian or not.”

“Grace Morrow (“Morrow”), an adult protective investigator with the Department of Children and Families, described Barker and Knight’s relationship as being “like a mother-son relationship.” Morrow also added that Knight was always there for anything that she or Barker needed and that Barker was happy with Knight’s care and companionship.”

Judge Martin of the Palm Beach County Court denied Morris and Glinton’s petitions for guardianship and appointed Knight as Barker’s guardian. The court considered the fact that Morris and Glinton are related to Barker, but did not find that fact to be dispositive. Instead, based on Knight’s fitness to serve as guardian and Barker’s demonstrated wish to entrust her care to Knight, the court determined Knight to be the most appropriate person to serve Barker’s best interests.

The Court of Appeals agreed with Judge Martin. Applying the abuse of discretion standard of review, the appellate court confirmed Judge Martin’s decision.

Mrs. Thomas was named as plenary guardian for her daughter, Tammy, after Tammy suffered a heart attack and brain damage while giving birth to her baby.  Mrs. Thomas claims that Tammy wouldn’t have been hurt, except for the doctor taking too long to deal with Tammy’s high blood pressure.  On Tammy’s behalf, and she sued the doctor, the hospital, and others.

The trial court ruled that Mrs. Thomas took too long to bring the lawsuit, and it was barred as a matter of law by the Florida Medical Malpractice Statute of Limitations.  Under that Florida law, Mrs. Thomas has two (2) years to file suit.  Calculating  that deadline is key: on what date does time begin to run for the plenary guardian?

The appellate court answered that question by sending the case back to trial, ruling: (1) Guardians have a special limitations statute (744.394, Florida Statutes (2003)) that needs the exact date that the cause of action accrued for calculation; (2) when someone is incapacitated, the limitations deadline is put on hold so the defendant cannot unjustly benefit; (3) when an adult is incapacitated, it cannot be assumed that anyone else acts for them until they are legally appointed to do so; and (4) it becomes a question of fact in these situations as to when the adult’s legal guardian should have known or discovered with reasonable diligence that there was a possibility of a doctor’s error or medical negligence.  Back in the courtroom, Mrs. Thomas would have to prove that the date she knew or should have discovered the medical errors was within the limitations period.

Practitioner Point: Statutes of limitations are complicated, and suits over when that time bar truly exists are expensive for all involved.  From a probate litigation standpoint, the faster that investigations begin and facts are accumulated, the better the chances of victory in any limitations fight.

Real World Point: Guardians like Mrs. Thomas, acting on behalf of a loved one’s best interests, deal with such a burden: there’s the emotional toll, as well as the decision-making, record-keeping, and other details and duties.   Still, the adage is true:  the earlier the better when it comes to filing suit.

Sarah Thomas, as Plenary Guardian, etc., Appellant, v. Fernando Lopez, M.D., et al., Appellees, 33 Fla. L. Weekly D 1072 (April 18, 2008)
Appeal from Orange County Circuit Court Judge Reginald Whitehead, to the Fifth District Court of Appeals (Opn: Justice Orfinger, Justices Torpy and Lawson concurring)