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Due Process Required in Guardianship Proceedings

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In the 2015 decision of Zelman v. Zelman (4th DCA July 1, 2015), the Court held that a non-party to a guardianship proceeding must be afforded due process, which includes sufficient prior notice and a full and fair opportunity to be heard.  We have written about due process in guardianships here – due process is regarded with great importance by Florida appellate courts.

The case involved Lois Zelman, the wife of Martin Zelman, an alleged incapacitated person (AIP).  Martin’s son, Robert Zelman, previously had petitioned the probate court for a determination that his 85-year-old father was incapacitated.  The Court, in turn, appointed limited guardians over Martin’s person and property, after a determination that Martin was incapacitated.

Martin’s children sought this determination of incapacity upon a belief that Lois was taking advantage of Martin’s feeble state, isolating him from his children, and taking control of substantial assets.

As evidence of Martin’s incapacity was an allegation that Martin accidentally deposited $3 million in his joint bank account shared with Lois.  Although the petitions pending before the trial court did not request a return or transfer of the $3 million from the couple’s joint bank account, the trial court ordered this transfer sua sponte.  The order was made without providing Lois, a joint holder of the couple’s bank account, sufficient notice nor an opportunity to be heard.  Notice and opportunity are basic tenets of due process for any party or non-party whose rights will be impacted in a Florida guardianship or other proceeding. Further, Lois was not permitted to call witnesses, submit evidence, or properly cross-examine witnesses.

On appeal, the Fourth District reversed the order compelling the transfer of $3 million from Martin and Lois’s joint account to Martin’s Revocable Trust.  In so doing, the Court noted that due process is a constitutional guarantee which affords all litigants with a full and fair opportunity to be heard.  In addition, the Fourth District was critical of the trial court’s sua sponte action compelling the transfer because that relief was not requested in the operative pleadings.

In short, a litigant, party or non-party, must be afforded notice and an opportunity to be heard.  It is a direct contravention of the constitutional guarantee of these due process principles when a court decides matters or awards relief not the subject of pleadings nor the subject of a noticed hearing.

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