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.

What is a guardian?

Typically, a guardian is a person (or sometimes an entity, such as a financial institution), who is appointed by the court to handle another person’s real and personal property and/or to take care of the person (referred to as “the ward.”)

Why are guardians appointed?

There are a variety of reasons upon which the court’s appointment of a guardian is predicated. First, a guardian is normally appointed to take responsibility over the ward’s business, financial and legal matters. Frequently, the ward is a person who needs a guardian because he or she can no longer manage his or her own affairs due to advanced age or a mental or physical disability. Under Florida law, a guardianship is usually an involuntary proceeding when family members or others ask the probate court to protect someone who appears to be incompetent. Florida courts also strive to impose the less restrictive means for persons who are limited in what they can manage, but are still competent.

What does a guardian do?

Simply stated, a guardian is a trusted fiduciary, and always acts in the best interests of the ward, rather than in the best interests of the guardian, the court, or anyone else. The conflicting roles that a guardian faces when trying to make decisions in the name of the ward was explored in detail by Lawrence A. Frolik in his article, Is a Guardian the Alter Ego of the Ward? 37 Stetson L.Rev. 53 (2007).

Frolik notes that given that the ward is often a person who is mentally incapacitated, the ward derives no pleasure from knowing that the guardian has acted as the ward would have acted. However, the most striking view that Frolik presents in his article is his point that the guardian serves the best interest of the ward, even over popular best interests of society. According to Frolik, the ability or desire of society to interject its values into the life of the ward is also undercut by the newest form of proxy decisionmaking: state surrogate-healthcare-decisionmaking statutes. Frolik argues that these statutes, although originally designed to provide a surrogate decisionmaker for patients whose diminished capacity does not allow them to give informed consent, represent a revolutionary approach and a sharp rebuke to traditional guardianship law.

Florida has its own health care surrogate act. See Fla.Stat. §§765.202 et seq. Many other states have them too, and although the statutes vary in detail, all are premised on the need for informed consent for medical care by the patient or the patient’s proxy. This is necessary because without informed consent, the physician, nurse, or hospital, can’t do anything without technically committing the crime of battery. What happens then when the patient is mentally incompetent and can’t provide the consent? Many states, including Florida, permit an individual to appoint a surrogate healthcare decisionmaker either through a durable power of attorney or a healthcare power of attorney.

Frolik astutely observes that “[t] he automatic creation of a surrogate healthcare decisionmaker is a dramatic shift in the societal approach to dealing with incapacitated persons as it represents a recognition that identifying an individual to provide informed consent is not a task that requires judicial intervention. Rather, it is a commonplace act that the physician and the family or friends of the patient can handle routinely.” Id. at 75. Frolik draws a parallel between intestacy laws, which are the state government’s method for distributing property to those most likely to have been heirs under a will, and the appointment of a statutory surrogate healthcare decisionmaker as an attempt to appoint the person that the patient would most likely have appointed by an advance healthcare directive.

Absent the right of individuals to name a surrogate or for the law to automatically designate one, Frolik accurately predicts that the courts would be overwhelmed by guardianship petitions: “The need for informed consent in healthcare decisions meant that someone had to be able to speak for an incapacitated patient. Imbedded in the doctrine of informed consent was the need for efficient, timely ways of identifying the proxy decisionmaker. The ultimate result was not only the creation of advance healthcare directives and statutorily designated proxies, but a redefining of the proper role of a guardian from being a representative of the court to being more akin to a judicially appointed agent of the ward. The need for property management of the assets of incapacitated persons, while not as dramatic a need as healthcare decisionmaking, was compelling enough to justify the creation of the durable power of attorney. Once courts recognized the right of agents to act solely in the best interests of the principal, it was only a short step to permitting guardians to act as if they were agents, especially as the need for a guardian merely represented a failure to use a durable power of attorney. The result has been a subtle, but significant, change in the role of guardians from agent of the court to representative of the interests of the ward.” Id. at 78.

Frolik answers his own question posed by the title of his article, yes, a guardian is now apparently the alter ego of the ward.