Probate, trust, guardianship and inheritance litigation
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Governor Signs Florida Guardianship Overhaul Bill Into Law (HB 5)

By:  Jeffrey Skatoff, Esq.

Florida Governor Rick Scott today signed into law a bill (HB 5) which significantly changes Florida guardianship law.  The Act explicitly amends the text of seventeen Florida Statutes and creates two new statutes altogether. 

The text of the bill is here, and the analysis of the bill from the House is here.

New Statute Expressly Prohibits Abuse, Neglect, and Exploitation by Guardian

Fla. Stat. § 744.359 has been created and is titled Abuse, neglect, or exploitation by a guardian.

Under the new law, abuse, neglect, and exploitation of a ward are expressly prohibited and punishable as set forth in Fla. Stat. § 825.103.  Exploitation under new statute 744.359 is defined as (i) commission of fraud in obtaining appointment as guardian; (ii) abuse of power as guardian; or (iii) waste, embezzlement, or intentional mismanagement of the ward’s assets.

Considerations in Appointment of Guardian

If more than one person applies for appointment as guardian, who has preference in appointment?  Often times, there is no single answer because there is more than one qualified option.  Preference is given to blood relatives and spouses, and beyond that, to those with relevant knowledge and/or experience.

Under the new law, the courts are provided with more guidance in terms of where they should look to resolve disputes concerning preference in appointment.  Now, courts are expressly permitted to consider the wishes of the ward’s next of kin when a ward is unable to express a preference.  Apparently in an effort to ensure that family members are appointed in cases where available and qualified to serve, the courts are now required to make specific findings of fact before appointing a professional guardian who is not randomly selected through a rotation system.  Further, where a professional is appointed as emergency temporary guardian, that individual cannot be appointed permanent guardian unless (i) the appointment is requested by the ward’s next of kin or (ii) the court finds that the professional possesses unique abilities which merit waiver of the aforementioned limitations.

Suspension of Power of Attorney During Pendency of Incapacity Proceedings

A power of attorney is defined in Florida as “a writing that grants authority to an agent to act in the place of the principal.”  Fla. Stat. § 709.2102(9).  Because of the decision making power which is vested in an agent by such a document, the appointment of a guardian for an incapacitated individual often encroaches upon a pre-existing power of attorney.  To that end, Florida law has long provided that powers vested in an agent by a power of attorney are suspended upon commencement of proceedings to determine the principal’s incapacity. 

Under the new law, if the agent is the principal’s spouse, parent, child, or grandchild, the agent’s powers are not automatically suspended pending the determination of incapacity.  Instead, a party seeking to suspend powers of an agent who is a spouse/parent/child/grandchild must file a verified motion under penalty of perjury pursuant to newly enacted Fla. Stat. § 744.3203 setting forth facts which suggest one or more of the following:  abuse of power by the agent; invalidity of the power of attorney document; the agent’s actions conflict with the principal’s known desires; the principal’s assets are in danger of being wasted, misappropriated, or lost; the agent failed to discharge his or her duties.  Importantly, the mere existence of a conflict between the agent and the party seeking to suspend the agent’s powers do not constitute the requisite grounds to suspend the agent’s powers.

Notice in Proceedings to Appoint Emergency Temporary Guardian

Florida law provides for the appointment of Emergency Temporary Guardians (ETG) to serve in increments of not more than ninety (90) days where “there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.”  Fla. Stat. § 744.3031(1).  This statute required that the court appoint counsel to represent the alleged incapacitated person during any hearing in which appointment of an ETG was sought.

Under the new law, the alleged incapacitated person and his/her attorney must be served with written notice of the filing of a petition to appoint an ETG at least 24 hours before the hearing on such a petition, absent limited circumstances where the petitioner can show that giving such notice would cause harm to the alleged incapacitated person.

Corporate For-Profit Guardians

Florida law previously provided that only Florida nonprofit corporations organized for religious or charitable purposes were qualified to serve as guardians. 

Under the new law, a Florida for-profit corporation can serve as guardian if one of the following prerequisites are met: 

(i)         Maintenance of a blanket fiduciary bond of at least $250,000.00 with the clerk of court in the county where the corporation maintains its principal place of business. OR

(ii)        Maintenance of a liability insurance policy covering losses up to $250,000.00 where such policy covers losses sustained by the guardianship caused by errors, omissions, or intentional misconduct by the corporation’s offices and agents.  Such policy must cover all officers and agents who have contact with or access to the ward.

Guardianship for Ward who Already Has Advanced Healthcare Directive

One of the policies which courts adhere to in implementing Florida’s Guardianship Law is employing the least restrictive means of securing a ward’s welfare.  To that end, courts must be mindful of and recognize the ways in which individuals can plan for their own incapacity by executing the following documents: (i) a revocable trust; (ii) a living will; (iii) a durable power of attorney which survives incapacity; or (iv) an advanced healthcare directive which vests medical decision making in someone known as a healthcare surrogate. 

Under the new law, for cases where the ward is found to have executed an advanced healthcare directive, the courts are to expressly state which rights remain with the healthcare surrogate and which are to be vested in the guardian.  To the extent that an order is entered modifying or revoking the authority of the surrogate, the court must articulate in writing the factual findings upon which the order was issued.

Orders Determining Incapacity

Under the new law, the court’s order determining incapacity must explicitly set forth which rights are being removed from the ward and vested in the guardian.  The court is instructed to remove only those rights which the court finds the person lacks capacity to exercise.

Fees and Expenses to Guardians and their Attorneys

Under the new law, circuit courts sitting in guardianship are now explicitly empowered to make a finding, in the absence of expert testimony, as to the reasonableness of fees requested by (i) a guardian; (ii) an attorney for the guardian; (iii) an attorney who represents an alleged incapacitated person; and (iv) an attorney who has rendered services to the ward.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

Probate, Trust & Guardianship Litigation

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