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Next of Kin – No Standing to Petition Florida Guardianship Court to Change Residence

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Standing in a guardianship proceeding can be confusing, and depends on the particular issue or petition at hand.  The guardian is granted certain authority, and interested persons and next of kin have certain rights as well.  In Bivins v. Rogers (4th DCA 2014), the Florida guardianship court ruled that the son of a ward lacked standing to petition to change the ward’s residence, holding that only the guardian can apply for court approval to change the residence of the ward.

The Facts of Bivins v. Rodgers

The ward’s son petitioned to change the ward’s residence to Texas, where all of the ward’s family resided.  The guardian moved to dismiss the petition for lack of standing, arguing that only a guardian could petition to change a ward’s residence under section 744.2025 of the Florida Guardianship Code.

The Florida guardianship court agreed with the guardian and dismissed the son’s petition, concluding that although the son might have standing to object to a petition by the guardian to change the ward’s residence, the son did not have standing to initiate proceedings to change the ward’s residence.

The Florida appellate court affirmed the Florida guardianship court’s dismissal, holding that section 744.2025 does not authorize anyone other than the guardian to apply for court approval to change the residence of the ward.

At the time of the Bivins case, section 744.2025 stated:

(1) PRIOR COURT APPROVAL REQUIRED.A guardian who has power pursuant to this chapter to determine the residence of the ward may not, without court approval, change the residence of the ward from this state to another, or from one county of this state to another county of this state, unless such county is adjacent to the county of the ward’s current residence. Any guardian who wishes to remove the ward from the ward’s current county of residence to another county which is not adjacent to the ward’s current county of residence must obtain court approval prior to removal of the ward. In granting its approval, the court shall, at a minimum, consider the reason for such relocation and the longevity of such relocation.

(2) IMMEDIATE COURT NOTIFICATION REQUIRED.Any guardian who wishes to remove the ward from the ward’s current county of residence to another county adjacent to the ward’s county of residence shall notify the court having jurisdiction of the guardianship within 15 days after relocation of the ward. Such notice shall state the compelling reasons for relocation of the ward and how long the guardian expects the ward to remain in such other county.

Section 744.2025 can now be found at section 744.1098 (2019).

Why Can’t Next of Kin Petition To Change The Ward’s Residence in a Guardianship Proceeding?

The Florida appellate court explained that the ward’s son is entitled to certain things as “next of kin,” which is defined in the Florida Guardianship Code as “those persons who would be heirs at law of the ward or alleged incapacitated person if the person were deceased and includes the lineal descendants of the ward or alleged incapacitated person.”

For example, as “next of kin” the ward’s son is entitled to notice of the petition to determine incapacity and to appoint guardian, to file objections to guardianship reports, and to notice of a petition by the guardian to perform any act requiring a court order (such as a petition to change the ward’s residence to a different state or non-adjacent county).

But, the issue is whether the son has standing to “initiate” proceedings to change the residence of the ward.  On this point the Florida appellate court stated that:

“no statute, rule, or Florida case has determined that the next of kin or any other interested person has standing to initiate proceedings to compel the guardian to change the residence of the ward or to act in a certain manner.”

But the statutory scheme does give the son, as an interested person, the right to petition for interim judicial review if the guardian is exceeding his powers under the annual guardianship plan and is not acting n the ward’s best interest, or to petition for removal of the guardian.

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