Blogs from January, 2009


Guardianships are an area of my practice that requires a lot of finesse when counseling clients who are serving conflicting roles when trying to make decisions in the name of the ward.

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 for 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 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 were 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 a 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 the 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 consent? Many states, including Florida, permit an individual to appoint a surrogate healthcare decisionmaker either through a durable power of attorney or 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 an agent of the court to a 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.


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