Blogs from August, 2009


With the recent news involving Michael Jackson’s children becoming the subjects of guardianship, many people are asking questions about this function of the law, and its meaning and application in connection with their older friends and relatives who are residents of Florida.

It is well known and recognized that Florida is home to a large population of older people who have 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 maybe 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 guardianship is necessary are the alternatives to guardianship.  Many times, my client's 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.

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(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 guardianship.  The aunt’s husband and her stepdaughter 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 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.


Most Recent Posts from August, 2009