Guardianship Law: Change Is In The Air, Will You Be Ready?
By: Glenn M. Mednick
I. CASE LAW UPDATE
Bivins v. Bivins, 223 So. 3d 1006 (Fla. 4th DCA 2017): “When a guardian seeks a discharge, the guardian applying for discharge may retain from the funds in his or her possession a sufficient amount to pay the final costs of administration, including guardian and attorney’s fees regardless of the death of the ward, accruing between the filing of his or her final returns and the order of discharge. Section 744.527(2), Fla. Stat.” The Court there referred to Romano v. Olshen, 153 So. 3rd 912, 920-921 (Fla. 4th DCA 2014) for the proposition “that the death of the ward does not terminate the guardian’s access to the ward’s property. The guardian of the property is not discharged upon the ward’s death, but must continue the administration until a petition for discharge is granted and his or her final accounting is approved. Thus, Chapter 744 contemplates that a guardian will perform services and be able to access the guardianship estate even after the death of the ward.” “[S]ection 744.527(2), Florida Statutes provides that the guardianship may retain funds to pay for fees accruing between the filing of his or her final returns and the order of discharge. Thus, the statute contemplates that a guardian will perform services after the death of the ward. Consequently, a guardian may retain funds to pay for future fees and costs that accrue during the process of winding up the guardianship estate.”
Campbell v. Campbell, 219 So. 3d 938 (Fla. 1st DCA 2017): A Florida lawyer was appointed by the Court, but failed to contact the AIP for months. The AIP and her daughter met with a private attorney who thereafter filed a notice of appearance. The Court entered an order determining the notice ineffective saying a motion for substitution should have been filed. The trial Court also held it would not entertain a substitution counsel motion until the incapacity petition had been heard “to determine whether the alleged incapacitated person had the ability to contract with a new attorney.” The private attorney thereafter filed a motion substitution of counsel with the trial court, but it was stamped “REFUSED –Return to sender Santa Rosa is now ‘PAPERLESS’ Everything must be e-filed.” On behalf of the AIP the private attorney filed a petition for writ of mandamus to compel the Court to accept and rule upon his motion for substitution of counsel. The 1st DCA remarked that “Ms. Campbell has a clear legal right to have counsel of her own choosing. She also has the right to have her motion for substitution to be heard as soon as possible, it would deny her due process … to wait until the final adjudication of her status overall.” The 1st DCA referred to Holmes v. Burchette, 766 So. 2d 387, 388 (Fla. 2d DCA 2000) for the proposition that “a person is presumed competent to contract unless incompetency is established by due process of law.” The court on appeal ruled the AIP through her counsel to the relief requested and directed the clerk of the court to accept the motion for substitution of counsel and directed the lower Court to hold proceedings on the motion.
Cook v. Cook, 260 So. 3d 281 (Fla. 4th DCA 2018)(Motion for rehearing and/or clarification granted, supra at 291): In Cook v. Cook, supra the Fourth DCA reversed an incapacity decision for the failure of the examining committee to base their reports on the type of information required by §744.331, Florida Statutes and the failure of the examining committee to complete all required parts of the examination. The Fourth DCA stated in pertinent part in Cook v. Cook, supra as follows:
“Under the statute, the examining committee’s role is to assess the abilities of the prospective ward and advise the court. The statute requires that each member of the examining committee examine the prospective ward. § 744.331(3)(e), Fla. Stat. The examination must include a comprehensive examination. Id. at § 744.331(3)(f). “The comprehensive examination report should be an essential element, but not necessarily the only element, used in making a capacity and guardianship decision.” Id. If indicated, the comprehensive examination must include a physical and mental health examination. Id. If a mandatory aspect of the comprehensive examination is not indicated or cannot be accomplished, the committee member must expressly explain the reason for the omission. Id.”
“We find that the plain language of section 744.331 requires, at a minimum:
(1) An examination by each member of the committee;
(2) That the examination must include a comprehensive examination; and
(3) That the comprehensive examination must include, if indicated, a physical exam, a mental health exam, and a functional assessment.
The statute does not require three separate comprehensive examinations – rather, the statute requires a comprehensive examination. The statute also does not specify who should perform the comprehensive examination. This leads us to conclude that the requisite three parts of the comprehensive examination could be performed by different specialists. We find that the statute is unambiguous, however, in its mandate that: a comprehensive examination be performed; a report of the comprehensive examination shall be filed; and the report should be an “essential element” in making the capacity decision.
Here, none of the members of the examining committee performed a physical examination of Cook; none filed a report of a physical exam of Cook; and none explained the reason for their omission of the requisite physical exam. Not only is the physical examination mandated by the guardianship statute, a physical exam could reveal a physiological reason for Cook’s behaviors. Because a person’s physical condition can have a profound impact on his mental health, a physical examination should be made in every case unless there is an express finding by the examiner that the exam was not indicated or could not be accomplished for any reason. The committee’s failure to include the physical examination in this case means the members reached their capacity determinations and advised the court without considering all of the “essential elements.”
We also find that the requisite mental health examination was not performed. A prospective ward deserves a thorough mental health examination to determine whether his condition is curable or treatable.”
The Opinion granted Appellant’s motion for rehearing and/or clarification, and further observed that “[t]he Chief Judges of the Eleventh, Fifteenth, and Seventeenth Judicial Circuits . . . moved for clarification concerning the extent of the physical examination that must be undertaken by the examining committee.“ The Opinion which granted the motion for rehearing and/or clarification struck the last sentence of the majority opinion and further stated: “
*Covey v. Shaffer, 2019 Fla. App. LEXIS 10563 (Fla. 2d DCA 2019): The issue here is whether a petition to appoint an emergency temporary guardian can be appointed without a hearing. During the course of the appeal, permanent guardians of Beulah Covey were appointed. The Emergency Temporary Guardian, Linda Shaffer, was appointed Guardian of the Person and a professional Guardian appointed Guardian of her Property. The Second DCA noted that the appointment of a permanent guarding would moot a challenge to the appointment of an emergency temporary guardian. However, because the issues there are capable of repetition, they declined to dismiss the appeal as moot. Based on references to a hearing in Section 744.3031, Florida Statutes and deletion of the word “any” before “hearing” in the 2015 amendment to Florida Probate Rule 5.648, the Second DCA held that Florida Statute 744.3031 requires a circuit court to hold a hearing before ruling on a petition to appoint an emergency temporary guardian. The lower court order appointing Linda Shaffer as emergency temporary Guardian was therefore reversed?
Driessen v. University of Miami School of Law Children and Youth Law Clinic, 260 So. 3d 1080 (Fla. 3d DCA 2018): The mother of Brittany, a developmentally disable person, appealed the trial court’s final order dismissing with prejudice her second amended complaint for legal malpractice against the University of Miami’s Clinic. The Clinic represented Brittany’s co-legal guardians, neither of which were Brittany’s mother. The 3d DCA found that the Clinic owed no duty to Brittany’s mother because she was not the Clinic’s client nor the intended beneficiary of the Clinic’s relationship with the co- guardians. While the mother as Brittany’s next of kin may have legitimate concerns regarding some of the decisions made by Brittany’s guardians, those concerns do not provide her with the standing to sue the clinic for legal malpractice. The dismissal with prejudice was affirmed on appeal.
Hernandez v. Hernandez, 230 So. 3d 119 (Fla. 3d DCA 2017): One of the Ward’s three children, Antonio whose own actions caused the need for the Guardianship and the petitions to engage litigation counsel to file an ejectment action against Antonio and his family, a law suit for damages against Antonio and his family appealed the probate court’s finding that Antonio lacked standing to object to several court orders authorizing payment of attorney’s fees from his mother’s/Ward’s assets. The Guardian was one of his two sister’s. The petitions to engage litigation counsel were granted as was the Guardian’s subsequent petition for authorization to file an adversary proceeding for damages and equitable relief which the Guardian claimed resulted in dissipation of significant assets of the Ward. The periodic petitions for fees filed by the Guardian with her sister’s consent were ruled upon without notice to Antonio. Antonio moved to vacate the attorney’s fees awards based on the failure to serve notice on Antonio. The probate court denied Antonio’s motion to vacate finding that Antonio was not an interested person within the definition of Section 731.201(23), Florida Statutes and Hayes v. Guardianship of Thompson, 952 So. 2d 498 (Fla. 2006). Antonio claimed he was an active participant in the guardianship proceedings and filed a request for copies under Florida Probate Rule 5.060, and therefore was entitled to notice and to object to the fees.
Based on Hayes v. Guardianship of Thompson, the 3d DCA held that simply being next of kin does not confer “interested person” status. An “interested person” is “any person who may be reasonably expected to be affected by the outcome of the particular proceeding involved and requires the trial court to evaluate “the nature of both the proceeding and the interest asserted.” Antonio’s involvement was necessitated by his alleged mistreatment of his mother, the Ward, and misappropriation of her funds, and did not entitle him to participate in the attorney’s fees proceedings. Antonio had claimed the fees awarded were excessive. Based on the finding of the trial court, the 3d DCA observed that “the fees they now claim are excessive came as a result of their own misconduct. Petitioner’s concern about potentially excessive fees sounds a bit like the apocryphal story of the man who kills both his parents and begs the court for mercy because he is an orphan.” The probate court considered the nature of the proceedings before concluding that Antonio was not entitled to notice and lacked standing to object to the attorney’s fees requests. The 3d DCA found no error in the probate court’s determination and affirmed. They concluded Antonio lacked standing to contest the attorney’s fees necessitated by his unsuccessful objections to these petitions, and strikes the balance suggested by the Florida Supreme Court. “It permits the probate court and the guardian to carefully scrutinize the fee requests but limits the ‘endless challenges by those whose only interest is to maximize their potential inheritance.’”
*Hernandez v. Hernandez-Kucey, 2019 Fla. App. LEXIS 10004 (Fla. 3d DCA 2019):
The underlying action was for partition, and the Third DCA affirmed as they found that the Appellant failed to establish that he had an interest in the property sought to be partitioned. Of interest to us is the Court’s quotation to the following language from Midland National Bank and Trust v. Comerica Trust Company of Florida, N.A., 616 So. 2d 1081 (Fla. 4th DCA 1993): “[a] ward’s death does not prevent a trial court from enforcing orders previously entered in the guardianship case.” Otherwise valid orders are not dependent on whether the ward is alive. The Third DCA’s opinion also relies upon the holding in Sowden v. Brea, 47 So. 3d 341 (Fla. 5th DCA 2010), which held that the trial court had the authority to enforce its prior order requiring the parties to comply with the court-approved mediation settlement agreement despite the Ward’s death.
Jacobsen v. Busko, 262 So. 3d 238 (Fla. 3d DCA 2018): A Florida attorney contracted with a ward, whose right to contract was removed by the Court’s prior order determining the ward was incapacitated. The attorney filed a petition for certiorari, which designated the ward as co-petitioner. The petition was denied as only the ward’s plenary guardian could enter into a contract with an attorney on behalf of the ward, and she hired other counsel to represent the ward.
Lyublanovits v. Zebny (In re Jones), 243 So. 3d 503 (Fla. 2d DCA 2018): A Florida professional guardian was the best person to serve as the Ward’s permanent guardian, despite having already served as the ETG. “We review a probate court’s determination regarding the appointment of a guardian under an abuse of discretion standard.” Section 744.312(4)(b), Fla. Stat., “makes clear that a trial court ‘may waive’ thise limitations and appoint the professional guardian as the permanent guardian ‘if the special requirements of the guardianship demand that the court appoint a guardian’ with ‘special talent or specific prior experience.’” “Notably, the record reflects that Ms. Zebny’s special skill set and qualifications include being a case manager for twenty-five years in the areas of grief, bereavement, and crisis intervention. She holds a master’s degree and is also a licensed clinical social worker, a hospice end-of-life counselor, and a practicing therapist and counselor who can both diagnose mental illness and develop plans to assist Mr. Jones with his memory loss and decision making. The record reflects that this expertise makes Ms. Zebny specially equipped to counsel Mr. Jones on end-of-life situations, as well as deal with Mr. Jones’ daily struggle with his wife’s death.” Further, the appellate court held that “the trial court found, as contemplated by section 744.312(3)(a), that Mr. Jones expressed his wish that Ms. Zebny remain as his guardian.”
Meyer v. Watras, 223 So. 3d 1010 (Fla. 4 th DCA 2017): The former counsel for the Guardian of an incapacitated minor had already received compensation of approximately $155,000.00 at the time she filed three (3) additional petitions for compensation, which amounts increased the total compensation sought to approximately $250,000.00. Shortly before filing the three additional petitions for compensation she withdrew as counsel for the Guardian. The attorney’s own expert testified at the evidentiary hearing that asking for a total of $250,000.00 in attorney’s fees for representing a guardianship worth approximately $400,000.00 for just over two years appeared excessive. Some of findings by the lower court were that:
a) the law firm billed in no less than quarter hour increments when tenths of an hour would be more appropriate in a guardianship matter;
b) time spent researching and drafting documents to convert this guardianship into a trust should not be charged to the guardianship;
c) time spent on a foreclosure matter for the ward’s mother should not be charged against the guardianship;
d) work by paralegals, which appears essentially secretarial, should not be
charged to the guardianship;
e) billings for meetings between the attorney and her paralegals should not be charged to the guardianship; and
f) billing entries which were not clearly defined should not be charged to the guardianship.
The attorney received awards from the Court for less than the amount she petitioned for. One of the errors raised by the former attorney for the guardianship was that the trial court erred by failing to consider the nine factors in Section 744.108(2), Florida Statutes when it determined the fees petitioned for in one of the petitions was excessive. The 4th DCA disagreed and held that even though Section 744.108(2) was not expressly referenced the lower court explained why it found the amount to be excessive. However, the appellate court found regarding the first petition that the court’s order lacked sufficient factual findings concerning the reasonable hourly rate and the number of hours on which the award was based, and at the least had to identify the number of hours and hourly rate on which the award was based. The appellate court reversed that award because the record on appeal was devoid of any specific evidence on how the lower court arrived at its award, and required the written order to specify the number of hours and the hourly rate on which the award was based. The denial of the second petition was reversed because the lower court mistakenly believed all of the time for which compensation was sought incurred subsequent to the date of the attorney’s withdrawal. The 4th DCA remanded to the trial court for findings whether the compensation was compensable and, if so, the number of hours and hourly rate on which the award is based. With regard to the third petition, the 4th DCA affirmed the court’s order because it contained all the required elements including the number of hours and the hourly rate which were compensable and considering the attorney’s own expert testified that petition was probably excessive, the trial court was did not abuse its discretion in making its reductions.
Pigna v. Messianu, 2018 WL 4762373, 2018 Fla. App. LEXIS 13951 (Fla. 3d DCA October 3, 2018): The Guardians moved to dismiss the estate’s appeal of 1) an order granting partial summary that found the minor child of the Decedent was entitled to child support payments and nanny expenses, and 2) an order granting final summary which found that two (2) of the Decedent’s children were entitled to one-third (1/3) of the Decedent’s worldwide estate. The issue there was whether the orders were appealable as the Appellees contended both orders were non-final orders. Appeals of orders rendered in probate and guardianship matters are governed by Florida Rule of Appellate Procedure 9.170(b). Specifically, Fla. R. App. P. 9.170(b)(5) which limits appeals of probate and guardianship orders to those “that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.” These include but are not limited to orders that “grant heirship, succession, entitlement, or determine the persons to whom distribution should be made.” Both of the subject orders were held to be appealable orders under Rule 9.170(b)(5), and the motion to dismiss the appeal was denied.
Sarfaty v. M.S., 232 So. 3d 1074 (Fla. 3d DCA 2017): A Florida family convinced a trial court to dismiss a guardianship petition because the court appointed counsel allegedly did not read the petition to the AIP, and the examining committee reports were filed after the 15 day deadline. The verified petition sought a plenary guardianship and the appointment of a professional guardian, not the petitioner or other family members. After the appointment of the examining committee members and the court appointed attorney, attorneys and their law firm appeared in the case purporting to be appearing on behalf of the AIP and moved to be substituted for the court-appointed attorney. The motion for substitution was signed by the AIP. The court appointed attorney expressed concern regarding the AIP’s capacity and noted uncertainty as to who actually hired private counsel for the AIP. The trial court entered an order granting private counsel’s emergency petition to be substituted in place of the court appointed counsel. After the AIP’s court appointed counsel terminated her services, the private independent counsel filed a declaration that the petition for a determination of incapacity was adversary and moved to dismiss the petition for procedural reasons.
The thrust of the AIP’s objections were that the court-appointed counsel did not read the petition to the AIP, and that the examining committee reports were not filed within the fifteen (15) days period allowed by the form notice and Section 744.331(3)(e), Fla. Stat. The trial court determined the proceedings had to start anew and that the petitioner would not be allowed to amend the petition. The appellate court observed that the order of dismissal and the oral ruling that amendment would not be allowed was grounded on arguments that may constitute defenses to the petition, but failed to establish the legal insufficiency of the petition. They found the AIP’s reliance on strict adherence to the time and notice requirements in Section 744.331(3)(e), Fla. Stat. and in the lower court’s standard notice was not persuasive in light of the unusual record. Rather than seeking to defer the examining committee members’ assessments or to expedite them, the private counsel for the AIP made the AIP available and sat with him as each professional assessed him. The 3d DCA could not identify any Florida case holding that the timing set forth in the statute cannot be waived by the AIP or his private counsel; nor could they identify a case holding that the timing set forth in the statute is so significant to the process and parties that a petition must be dismissed without leave to amend when the time requirements are not strictly fulfilled. They found a few days delay in filing of the examining committee reports during the end of the year holiday season following a change of counsel is distinguishable. They held the petition and its attachments were facially sufficient, and reversed the dismissal of the petition without leave to amend.
Schlesinger v. Jacob, 240 So. 3d 75 (Fla. 3d DCA 2018): Two Florida attorneys filed an appeal after the trial court denied their motions for attorneys’ fees under Section 744.108(1), Fla. Stat., despite their successful representation of a guardianship petitioner. “Case law construing this provision uniformly holds that ‘an attorney’s entitlement to payment of reasonable fees and costs is subject to the limitation that his or her services must benefit the ward or the ward’s estate.’” The 3d DCA held that the trial court’s conclusion that none of the services rendered by appellants benefitted the ward was unsupported by competent substantial evidence in the record. Appellants’ services included a successful petition to determine incapacity and a successful petition to establish a plenary guardianship. The 3d DCA stated that “[t]he trial court’s order appears to have conflated the separate determinations of entitlement to attorney’s fees with the reasonable amount of fees to be awarded.”
*Schwartz v. Banks, 2019 Fla. App. LEXIS 7884 (Fla. 3d DCA 2019): In this case the attorney for the Guardian, Miriam Banks, sought to withdraw as her counsel. The Guardian counsented to her counsel’s withdrawal. After setting his motion for hearing, the Judge’s Judicial Assistant cancelled the hearing. The lower court never entered an order regarding the hearing or upon the motion. The Third DCA treated the attorney’s certiorari petition as a petition for writ of mandamus and granted the attorney’s petition. However, they withheld issuance of a writ in reliance upon the trial court to adjudicate the attorney’s motion to withdraw in a timely manner.
Smith v. Smith, 224 So. 3d 740 (Fla. 2017): A Florida Ward married his fiancé, but did not seek prior court approval to do so. The right to marry was not removed, but the right to contract was removed and delegated to the limited guardian of the property. The Court specifically found there was no incapacity that would warrant a guardian of the person. The Ward and his spouse met and became engaged before he was deemed incapacitated, but were married after he was declared to be incapacitated. Court approval was not obtained prior to the marriage ceremony, although the spouse requested the limited guardian on two occasions to seek court approval, but the limited guardian refused. Sections 744.3215(2)(a), Fla. Stat. states “Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right . . . To marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval.” The certified question asked whether the failure to obtain court approval pursuant to Section 744.3215(2)(a) rendered the ward’s marriage void or voidable. The Supreme Court of Florida held that the plain language of that section reflects that the Legislature did not intend for the type of invalid marriage at issue to be classified as void or voidable. The critical language of that Section should be given its plain meaning: “the ward’s right to marry is contingent on court approval when the right to contract is removed. However, the statute does not use the term ‘void’ or expressly require prior court approval . . . Therefore, to interpret the statute as requiring court approval prior to the marriage ceremony would impermissibly ‘extend, modify or limit its express terms or its reasonable and obvious implications’ . . . We hold that section 744.3215(2)(a) does not preclude the possibility of ratification of a marriage if the court subsequently gives its approval, but an unapproved marriage is invalid and can be given legal effect only if court approval is obtained.”
The Florida Supreme Court answered “the certified question by holding that a ward’s failure to obtain court approval prior to exercising the right to marry does not render the marriage void or voidable. Instead, we conclude that under section 744.3215(2)(a) court approval is required before a ward whose right to contract has been removed may enter a valid marriage. Any marriage entered into without court approval is invalid. However, the statute does not prevent the ward or the intended spouse from seeking court approval after marrying in order to ratify the marriage.”
Tenzer v. Tenzer, 240 So. 3d 754 (Fla. 4th DCA 2018): Veronica Tenzer as natural parent and guardian of the property of her son appealed a final order striking Appellant from the Trust proceeding because she was not an interested party. She failed to timely appeal. The 4th DCA held that order was a final order because it removed Appellant from the action pertaining to the establishment of the trust, and dismissed Appellant’s appeal.
II. RULES OF PROCEDURE AND STATUTORY UPDATE
*Florida Statutes Section 39.6225, effective July 1, 2018: Section 10 of Chapter 2018- 103 established Section 39.6225, Florida Statutes. While effective July 1, 2018 the program did not take effect until July 1, 2019. The program authorizes the
(a) The child’s placement with the guardian has been approved by the court.
(b)The court has granted legal custody to the guardian pursuant to Florida Statutes 39.521 or 39.522.
(c)The guardian has been licensed to care for the child as provided in Florida Statutes 409.175.
(d)The child was eligible for foster care room and board payments pursuant to Florida Statutes 409.145 for at least 6 consecutive months while the child resided in the home of the guardian and the guardian was licensed as a foster parent.
A guardian who has entered into a guardianship agreement for a dependent child can also receive guardianship assistance payments for a dependent sibling of that dependent child as a result of a court determination of child abuse, neglect, or abandonment and subsequent placement of the child with the relative. Assistance payments are not contingent upon continued residence in the state, and re-licensure of the out of state guardian’s home is not required for continuity of payments. Guardianship assistance payments are statutorily set at $4,000.00 annually, paid on a monthly basis. A child receiving assistance payments is also eligible for Medicaid coverage until the child becomes 18, or, under limited circumstances, until the child turns 21.
What is a “fictive kin”? It is defined in Florida Statute Section 39.01(29) as a person unrelated by birth, marriage, or adoption who has an emotionally significant relationship, which possesses the characteristics of a family relationship to a child.
Florida Statutes Section 744.368(5), effective July 1, 2018: A Florida Clerk may conduct an audit of the initial and annual guardianship accountings; the Clerk is required to advise the Court of the results of the audit. “Any fee or cost incurred by the guardian in responding to the review or audit may not be paid or reimbursed by the ward’s assets if there is a finding of wrongdoing by the court.”
Florida Statutes Section 825.1035, effective July 1, 2018: A Florida vulnerable adult, the guardian of a vulnerable adult, a person or organization acting on behalf of the vulnerable adult, and a person who simultaneously files a petition for determination of incapacity and appointment of an emergency temporary guardian can now seek an injunction for protection against exploitation. A “[v]ulnerable adult” for purposes of Chapter 825 has the same meaning as in Section 415.102(28), Florida Statutes. See, Section 825.101(14), Florida Statutes. “The cause of action may be sought in an adversary proceeding . . . .” Section 825.1035(2)(a), Florida Statutes.
Florida Statutes Section 825.1036, effective July 1, 2018: “[A] person who willfully violates an injunction for protection against exploitation of a vulnerable adult commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A person may violate such injunction by:
1. Refusing to vacate the dwelling shared with the vulnerable adult;
2. Going to or being within 500 feet of the vulnerable adult’s residence;
3. Exploiting or unduly influencing the vulnerable adult;
4. Committing any other violation of the injunction through an intentional unlawful threat, word, or
act to do violence to the vulnerable adult;
5. Telephoning, contacting, or otherwise communicating with the vulnerable adult directly or indirectly, unless the injunction specifically allows indirect contact through a third party;
6. Knowingly and intentionally coming within 100 feet of the vulnerable adult’s motor vehicle,
regardless of whether that vehicle is occupied; or
7. Defacing or destroying the vulnerable adult’s personal property. Florida exploiter who violates an injunction, can be criminally charged.
A person who has two or more prior convictions for violation of an injunction against the same victim and who subsequently commits a violation of any injunction against the same victim commits a felony of a third degree. A vulnerable adult who suffers an injury or loss as a result of a violation of an injunction “may be awarded economic damages and attorney fees and costs for enforcement of such injunction.”
In re Amendments to Florida Probate Rules, 253 So. 3d 983 (Fla. 2018), effective September 27, 2018: Based upon the enactment of Section 825.1035, Florida Statutes, the Florida Supreme Court approved the Florida Probate Rules Committee’s amendments to Florida Probate Rule 5.025 to include “obtain an injunction or temporary injunction pursuant to section 825.1035, Florida Statutes” as a Specific Adversary Proceeding under Florida Probate Rule 5.025(a). In addition, Subsection (d) was amended to exclude proceedings pursuant to Section 825.1035, Florida Statutes from the requirement to serve formal notice.
In re Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, and the Florida Rules of Appellate Procedure, 257 So. 3d 66 (Fla. 2018), effective January 1, 2019: Rule, 2.514, Fla. R. Jud. Admin. Computing and Extending Time was amended to remove “or e-mail” so that service by mail and e-mail are no longer treated identically. Therefore, five (5) days are no longer added when service is made by e-mail.
*Florida Statutes Section 394.464, effective July 1, 2019: Chapter 2019-51 created Section 394.464, Florida Statutes. This section establishes that all petitions for voluntary and involuntary admission for mental health treatment under the Baker Act, court orders and related records filed with or a by a court are confidential and exempt from Florida Statute Section 119.07 and the Section 24, Article I of the Florida Constitution, which reference a
(a) The petitioner.
(b) The petitioner’s attorney.
(c) The respondent.
(d) The respondent’s attorney.
(e) The respondent’s guardian or guardian advocate, if applicable.
(f) In the case of a minor respondent, the respondent’s parent, guardian, legal custodian, or guardian advocate.
(g) The respondent’s treating health care practitioner.
(h) The respondent’s health care surrogate or proxy.
(i) The Department of Children and Families, without charge.
(j) The Department of Corrections, without charge, if the respondent is
committed or is to be returned to the custody of the Department of
Corrections from the Department of Children and Families.
(k) A person or entity authorized to view records upon a court order for good cause. In determining if there is good cause for the disclosure of records, the court must weigh the person or entity’s need for the information against potential harm to the respondent from the disclosure.
The persons or entities receiving such information must maintain it as confidential. Section 394.464 doesn’t preclude the clerk of the court from submitting that information to the Department of Law Enforcement. The exemption created by this new Statute applies to all documents filed with a court before, on or after July 1, 2019.
III. PROPOSED GUARDIANSHIP LEGISLATION AND DISCUSSION ITEMS
A. MATTERS THAT WERE PENDING DURING THE 2019 LEGISLATIVE SESSION
Rothman and Minor Venue (HB 1085/SB 1338) – Under current law, the Court is left without any discretion to hear evidence when a majority of the examining committee makes a finding that a person is not incapacitated. Section 744.331(4), Florida Statutes states: “If a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.” (Emphasis supplied). It is believed that the status of the current law violates the separation of powers by forcing the judiciary to dismiss petitions due to the wording of the statute created by our legislature. In the case of Rothman v. Rothman, (93 So. 3d 1052), the 4th district affirmed that the statute provides no discretion to the Court. While examining committees undertake an important role in our system, often they do not have the resources to undertake an exhaustive research of the alleged incapacitated person’s condition. The proposed revision to § 744.331(4), Fla. Stat. provides that in the event an examining committee unanimously finds that a person is not incapacitated, the Court must dismiss the Petition to Determine Incapacity unless a verified motion is filed within 10 days of the last report challenging the examining committee’s conclusion. The motion must be filed in good faith and provide a reasonable showing, by evidence in the record or proffer, that a final hearing is necessary. The Court is required to rule on the verified motion “as soon as is practicable” with the goal of requiring dismissal or a final hearing quickly so not to unnecessarily delay the process. Allowing this motion procedure to occur will provide the Court discretion in making accurate determinations of the medical condition of alleged incapacitated persons who may present well at one time or have not been subjected to rigorous enough evaluation by court appointed committees. This change also brings § 744.331(4) in line with other portions of Chapter 744 that state that the examining committee reports should be but one part of the Court’s consideration in determining if a person is incapacitated.
Minor Venue – As strange as it may be to believe, Chapter 744 does not explicitly provide for venue in the case of minor guardianship actions. See, § 744.1097, Fla. Stat.. In order to rectify this omission, the bill provides for venue in minor guardianships similar to venue in adult guardianships.
Vulnerable Investor Transaction Freeze (HB 143/SB 1466) – Creates Florida Statute § 517.34 titled Protection of Specified Adults. This new statute requires securities dealers, investment advisers, and associated persons to immediately report knowledge or suspicion of abuse, neglect, or exploitation of vulnerable adults to the Department of Children and Families’ central abuse hotline. The bill further authorizes these same people to delay certain transactions or disbursements if they reasonably believe exploitation has occurred, is occurring, or is being attempted against a vulnerable adult. It also allows the person to contact a “trusted contact”, expressly identified by the account owner, to alert of the potential exploitation and the actions being taken by the institution. If passed, this law would have taken effect on July 1, 2019.
Florida Guardianship and Protective Proceedings Jurisdiction Act (HB 677) – Adopts the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) in Florida. The UAGPPJA was initially adopted by the Uniform Law Commission in 2007 and since that time has been adopted by 46 states in varying forms. Florida has not adopted the law in the past because, among other things, (a) Florida’s laws already provide for procedures to transition guardianship between states, (b) Florida’s due process protections are significantly higher than other states, and (c) the language used in the act is often ambiguous in order to facilitate so many different sets of laws between the states. Because the UAGPPJA provides for transfer of guardianships between states, the concern has been that by adopting the UAGPPJA Florida would be eroding its highly regarded guardianship process, essentially allowing non-Florida courts to dictate to the Florida courts. Since the UAGPPJA’s drafting, multiple groups have reviewed the Act, RPPTL included, and have come to the determination that it is not in Florida’s best interests to adopt it. That being said, there is some concern that Florida, while having the necessary laws, does not do a good enough job of laying out the procedure for transition between states. For that reason, different groups are examining how best to lay out these procedures, including the potentialadoptionoftheUAGPPJA.RPPTLopposed theadoptionoftheuniformact.
Annual Physician’s Report (HB 1167 / SB 1188) – Under Section 744.3675, the guardian of the person must annually file the report of a physician who examined the ward and who makes an evaluation of the ward’s condition no more than 90 days before the beginning of the applicable reporting period. This bill would allow that report to instead be completed by a physician assistant or advanced practiced registered nurse. RPPTL had suggested a revision to this bill which would require the guardian to make a statement in the plan that a physician was not reasonably available to complete the report should someone other than a physician complete it. In this way, there would be an acknowledgment of the practical need for this change while also maintaining the preference for a physician’s participation.
Each of the above referenced legislative proposals died in committee, and was indefinitely postponed and withdrawn from consideration.
B. THINGS IN THE WORKS
Judicial Management Council Guardianship Workgroup – Established by Chief Justice Labarga in late 2016, the Workgroup’s task was to advise the Supreme Court on long-range issues confronting Florida’s Judiciary. More specifically, the workgroup is to examine judicial procedures and best practices pertaining to guardianship to ensure that courts are best protecting the person, property, and rights of individuals who have been judged to be incapacitated and persons who may have diminished capacity to function independently. Issues on which the workgroup was specifically directed to focus include (i) the use of least restrictive alternatives that address specific functional limitations; (ii) determinations of incapacity and restoration of capacity; (iii) the assessment and assignment of costs associated with guardianship administration; (iv) post adjudicatory proceedings and responsibilities related to guardianship, including the rights guaranteed by Florida law; and (v) training opportunities available to judges and court staff. The workgroup produced its Final Report in June 2018 making recommendations of items to be reviewed and/or implemented. The full report can be located on the RPPTL Website within the Guardianship Committee’s July 2018 Agenda at Page 12 and continues through Page 89.
Guardianship Law Revision Committee – An ad hoc committee created in 2011 to review Florida Statutes Chapter 744 and recommend comprehensive changes based on the experience and perspective of the interested parties. The Committee has now completed its draft for a new chapter 745 which seeks to reduce the economic burden of guardianship, preserve and enhance due process, increase shared decision making between the Ward and the Guardian, and to overall improve Florida’s guardianship system. The draft bill is currently being reviewed by the RPPTL Section’s Executive Council and by the Guardianship Committee of the Elder Law Section of The Florida Bar. The draft bill as revised is likely to be a legislative item in Florida’s 2020 legislative session. The full bill can be located on the RPPTL Website within the Guardianship Committee’s March2019AgendaatPage44andcontinuesthroughPage219.