What is a Least Restrictive Alternative for Purposes of a Guardianship Proceeding

By: Glenn M. Mednick

An individual who is involved with a guardianship proceeding either as the petitioner, respondent or other interested person will often hear the terminology “least restrictive alternative” during the course of your involvement in that matter. A Durable Power of Attorney, a Revocable or Irrevocable Trust Agreement, and a validly executed Health Care Advance Directive will generally be considered as “least restrictive alternatives” to a plenary guardian of the person and property.

Under §744.1012 the Florida legislature recognizes the deprivation of civil rights brought by adjudicating an individual incompetent. §744.1012, Fla. Stat. The legislature also desired to make the least restrictive form of guardianship available to assist persons who are only partially incapable of caring for their needs. In addition, the legislature also felt it was promoting public welfare by:

“establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf. This act shall be liberally construed to accomplish this purpose.”

A number of statutory provisions were included in the Florida Guardianship Law in order to ensure the legislative intent is considered and followed. Pursuant to §744.331(6)(b), Fla. Stat.:

When an order determines that a person is incapable of exercising delegable rights, the court must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. A guardian must be appointed to exercise the incapacitated person’s delegable rights unless the court finds there is an alternative. A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person.

Similarly, Florida Statute §744.344 (2), Fla. Stat., provides that:

“The order appointing a guardian must be consistent with the incapacitated person’s welfare and safety, must be the least restrictive appropriate alternative, and must reserve to the incapacitated person the right to make decisions in all matters commensurate with the person’s ability to do so.”

When an order determines the person is incapable of exercising delegable rights, “it shall specify whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person.” Fla. Prob. R. 5.550(d). Similarly, Fla. Prob. R. 5.560(a)(9) requires a petition for appointment of a guardian of an incapacitated person to state “whether there are alternatives to guardianship known to the petitioner that may sufficiently address the problems of the alleged incapacitated person in whole or in part.”

Even if a court holds that clear and convincing evidence was presented to support a finding of partial or total incapacity, the record must reflect that the court considered less restrictive alternatives. The First District has added precedent to the weight of the above statutes in its decision in In Re: Guardianship of Fuqua, 646 So.2d 795 (Fla. 1st DCA 1994). While the lower court’s order summarily noted that no alternative to a plenary guardianship would sufficiently address the needs of the ward, the appellate court reversed and remanded the trial court’s order appointing a plenary guardian on the basis that the record did not reflect a consideration of any less restrictive alternatives to a plenary guardianship for the ward, contrary to the requirements of Chapter 744. After quoting §744.331(6)(b) as it then appeared and §744.344(2), the opinion stated:

“These statutory provisions recognize the great limitations on personal liberty and autonomy which are inherent in the appointment of a plenary guardian. In addition, these provisions reflect the legislative intent that the guardian should be granted no more authority over the ward and his or her property than is necessary for the guardian to address the needs created by the specific incapacities of the ward, so that the substitute decision-making of the guardian leaves the ward with as much personal autonomy as is feasible.”

Durable powers of attorney are generally recognized as least restrictive alternatives to the appointment of a guardian of the property. In Smith v. Lynch, 821 So.2d 1197 (Fla. 4th DCA 2002), the husband and step-daughter of the Ward that had previously given them a power of attorney argued that a guardian was not required or indicated. While admittedly the testimony was in conflict, the trial court implicitly found that the Ward was competent when she made and delivered her durable power of attorney (DPOA). The drafting attorney testified she was competent to do so. A physician testified that he examined her at the same time and that she had moderate dementia of the Alzheimer’s type, and opined that she didn’t have the mental capacity “to make those kinds of decisions.” Her husband testified she had good and bad days, and her step-daughter testified the Ward was lucid on the precise day when she executed the DPOA. The Fourth District Court of Appeal recognized that the obvious import behind the provisions of §744.1012 is to require the appointment of a guardian only when no other lesser intrusion on the privacy of the ward will accomplish the purpose of protecting the ward’s property. In this instance the trial court found that the DPOA was given to the spouse and step-daughter of the Ward. The court emphasized that the Ward and her spouse had a long term, second marriage (18 years) and that he had been a loving, caring husband. The petitioners, however, were not as close to the Ward and had not played so significant a role in her life as her spouse has done. In effect the court found that the expense and intrusion of a formal Guardian into this family was not indicated by the circumstances. After balancing all the circumstances, the trial court concluded the appointment of a guardian would serve no useful purpose and would unnecessarily interfere with the family.

The Fourth District Court of Appeal Per Curiam Affirmed a decision based upon Smith v. Lynch; however, the facts of that case were not published. Kahan v. Guardianship of Samuel Sheptoff, 947 So.2d 635 (Fla. 4th DCA 2007). In an action involving competing petitions for the appointment of the guardian(s) of the person and property, the concurring opinion in Borck v. Borck, 906 So.2d 1209, 1212 FN1 (Fla. 4th DCA 2005), addressed whether the durable power of attorney in favor of the ward’s daughter should be given effect over the appointment of the guardian. The concurring opinion agreed with the trial court’s determination that an evidentiary hearing was necessary to evaluate the instrument as well as the propriety of the appointment.

Even where a durable power of attorney exists, it will not constitute an alternative to guardianship where the principal is adjudicated totally or partially incapacitated by a court of competent jurisdiction. §709.08(3), Fla. Stat. However, the court under Subsection (3)(b) can determine that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact. In addition, Subsection (3)(c)3 thereof states that a proceeding to determine incapacity must not affect the authority of the attorney in fact to make health care decisions for the principal unless otherwise ordered by the court.

The Florida Legislature has also found that every competent adult has fundamental rights regarding their health care decisions. §765.102(1), Fla. Stat. To ensure that right the Legislature declared its intent “that a procedure be established to allow a person to plan for incapacity by executing a document or orally designating another person to direct the course of his or her medical treatment upon his or her incapacity. Such procedures should be less expensive and less restrictive than guardianship . . . .” §765.102(2), Fla. Stat. An “advance directive” includes, but is not limited to, the designation of a health care surrogate or a living will. §765.101(1), Fla. Stat. A validly executed health care advance directive constitutes a lesser restrictive alternative to guardianship with respect to the rights delegated within the scope thereof. An attorney in fact may make all health care decisions on behalf of the principal including those set forth in Chapter 765 if such authority is specifically granted in the durable power of attorney. Pursuant to §744.3115, Fla. Stat., in each proceeding in which a guardian is appointed the court must determine whether the ward executed a valid advance directive under Chapter 765. It further states:

“If any advance directive exists, the court shall specify in its order and letters of guardianship what authority, if any, the guardian shall exercise over the surrogate. Pursuant to the grounds listed in s. 765.105, the court, upon its own motion, may, with notice to the surrogate and any other appropriate parties, modify or revoke the authority of the surrogate to make health care decisions for the ward. For purposes of this section, the term “health care decision” has the same meaning as in s. 765.101.”

A “surrogate” is defined by §765.101(16), Fla. Stat., as a “competent adult expressly designated by a principal to make health care decisions on behalf of the principal upon the principal’s incapacity.” However, incapacity as used therein does not refer to a declaration of incapacity by a court. See, §765.101(8), Fla. Stat. Notwithstanding the appointment of a guardian, “the surrogate shall continue to make health care decisions for the principal, unless the court has modified or revoked the authority of the surrogate pursuant to s. 744.3115.” This provision is consistent with §709.08(3)(c)3, Fla. Stat., which states that a proceeding to determine incapacity must not affect the authority of the attorney in fact to make health care decisions for the principal unless otherwise ordered by the court. The Fourth District Court of Appeal in Graham v. Florida Department of Children and Families, 970 So.2d 438, 443 (Fla. 4th DCA 2007), recognized that the trial court before revoking a health care advance directive has a duty to determine the documents validity. In appointing a temporary plenary guardian, the trial court effectively revoked the principal’s advance directive in violation of §744.3115, Fla. Stat. The Fourth DCA also recognized that there was no duty by the health care surrogate to come forward to prove the validity of the health care advance directive.

A recent addition to the Florida Probate Rules applicable to guardianship states that an interested person may file a verified statement stating that:

 1. that he or she has a good faith belief that the alleged incapacitated person’s … durable power of attorney is invalid; and

 2. facts constituting a reasonable basis for that belief.

Fla. Prob. R. 5.550(c). Florida Probate Rule 5.550(c) was promulgated due to the amendment to §744.331, Fla. Stat., which added Subsection (6)(f) thereto. §744.331(6)(f) contains similar but not identical language to Florida Probate Rule 5.550(c) as it substitutes “A reasonable factual basis for that belief,” for the language quoted above, i.e.: “facts constituting a reasonable basis for that belief.” §744.331(6)(f) goes on to state that upon the filing of the verified statement the power of attorney shall not be deemed to be an alternative to the appointment of a guardian. However, “[t]he appointment of a guardian does limit the court’s power to determine that certain authority granted by a durable power of attorney is to remain exercisable by the attorney in fact.”

In addition, §744.462, Fla. Stat., “Determination regarding alternatives to guardianship” was added to the Florida Guardianship Law in 2006 and states:

“Any judicial determination concerning the validity of the ward’s durable power of attorney, trust, or trust amendment shall be promptly reported in the guardianship proceeding by the guardian of the property. If the instrument has been judicially determined to be valid or if, after the appointment of a guardian, a petition is filed alleging that there is an alternative to guardianship which will sufficiently address the problems of the ward, the court shall review the continued need for a guardian and the extent of the need for delegation of the ward’s rights.”

Florida Probate Rule 5.685 was promulgated based thereupon and provides that a guardian shall promptly file a copy of an order or judgment that determines the validity of a ward’s durable power of attorney, and that a guardian at any time after appointment or other interested person “may file a verified petition stating there is an alternative to guardianship that will sufficiently address the problems of the ward.” The order thereafter entered “shall specify whether there is an alternative to guardianship that will sufficiently address the problems of the ward, the continued need for a guardian, and the extent of the need for delegation of the ward’s rights.”

It is clear from the afore-described authorities that a verified statement filed in compliance with §744.331(6)(f) and Fla. Prob. R. 5.550(c) does not eliminate the applicability of a power of attorney, as the court must still determine what authority granted by a durable power of attorney or an advance directive is to remain exercisable by the attorney in fact and/or the health care surrogate.

Based upon the mandates of the Florida Legislature, a Durable Power of Attorney, a Revocable or Irrevocable Trust Agreement, an Advanced Directive as well as a Health Care Surrogate should be considered to be least restrictive alternatives to the appointment of a guardian that will sufficiently address the problems of the alleged incapacitated person, in whole or in part. A court should recognize that using the foregoing instruments in lieu of a guardianship provides the alleged incapacitated person with the highest level of participation in their affairs as well as minimizing the intrusion to their privacy.

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