Florida law in the areas of probate and guardianship is pretty clear about who can, and cannot, serve as a fiduciary. Convicted felons are barred from serving. Period. But what about a convicted felon who has turned her life around, runs a business and who has devoted her life to taking care of her incapacitated husband? In other words, the perfect guardian for the situation.
In Beckford v. Beckford, 2D22-1405 (2nd DCA 2023), the Court was faced with just that situation. The Ward suffered a brain aneurysm leaving him incapacitated. The Ward’s wife was appointed by the trial court as guardian, even though a convicted felon. The Court explained:
However, the court stated that despite the disqualifying language in section 744.309(3), it had discretion under section 744.312 to appoint Donna Beckford as guardian. After weighing Donna Beckford’s criminal record, her testimony explaining this record, and her past drug addiction together with the evidence that she holds her CNA license and operates a successful home health care business, which supported the Ward and allowed the Ward to remain home for his therapy, the trial court concluded that Donna Beckford did not represent any danger to the Ward.
Section 744.309(3) is clear enough.
Disqualified Persons. – No person who has been convicted of a felony * * * shall be appointed to act as guardian.
The wife pointed to the Florida guardianship code as Section 744.312(2), which sets forth the factors the Court is to apply in selecting a guardian. that Section provides, in part:
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.
(d) Consider the wishes of the ward’s next of kin, when the ward cannot express a preference.
(e) Inquire into and consider potential disqualifications under s. 744.309 and potential conflicts of interest under s. 744.446.
The wife argues, using one of those latin rules of construction,
that a prior felony conviction is not an absolute bar to appointment but rather only a “potential” bar that the trial court must merely consider when appointing a guardian. In arguing that the compulsory bar in section 744.309(3) should be read as a discretionary bar due to the “potential” language in section 744.312(3)(e), Donna Beckford essentially asks this court to read these two sections in pari materia and give the clear felony disqualification in section 744.309(3) a completely different meaning.
Not so fast with the fancy latin.
But “the ‘in pari materia’ canon of statutory construction would be appropriate only if we found the statute ambiguous,” which we do not. See Brown v. State, 848 So.2d 361, 364 (Fla. 4th DCA 2003).
Subsection 744.309(3) on the other hand identifies “Disqualified persons” who “shall” be disqualified and those parties who “may” be disqualified. As to persons convicted of a felony, section 744.309(3) unequivocally states “No person who has been convicted of a felony . . . shall be appointed to act as guardian. . . .” (Emphasis added.) Because section 744.312(3)(e) directs that a court “inquire into and consider potential disqualifications under [section] 744.309,” when a guardian cannot be appointed under section 744.312(1), a court is required to determine whether potentially disqualifying factors, such as a felony conviction, do in fact exist. (Emphasis added.)
It does not direct the court to weigh the felony conviction against other factors and determine whether the court, in its discretion, deems the party disqualified, as the trial court did in this case. To read the statute otherwise would render meaningless the unambiguous felony conviction disqualification in section 744.309(3)- and lead to an impermissible construction of the statute.
Great lawyering, great facts, and a great wife cannot always overcome a statute that is simply too clear on its face to mandate the required result.