Posted on April 6, 2015

On March 18, 2015, The Fourth District Court of Appeal held in Martinez v. Smith, 2015 Fla. App. LEXIS 3966 (Fla. 4th DCA 2015), that the trial court failed to honor a ward’s choice of guardian without finding that the appointment of the guardian was contrary to the ward’s best interests as required by Section 744.312(4), Fla. Stat. The Court also held that the actions of the designated preneed guardian whereby she moved the ward several times from facilities and failed to communicate well with the ward’s nursing staff did not constitute an abuse of powers granted to the designated preneed guardian.

In the instant case, Glenda Martinez (“Wife”) appealed the order granting professional guardian, John Cramer’s (“Cramer”) petition to be appointed plenary appointing for her husband, Alan Smith (“Ward”), arguing that the trial court failed to apply Section 744.3045, Fla. Stat. by which her husband had appointed her as his preneed guardian and health care surrogate. The Ward had also executed a power of attorney in his Wife’s favor. The trial court found that the Wife did not act in the best interests of the Ward by moving him from numerous facilities and not getting along with the nursing staff at the facility which was taking care of the Ward. Based thereupon, it disqualified her to serve as the guardian despite the preneed designation and ordered the appointment of a professional guardian, Cramer. The Fourth District Court of Appeal of Florida (“The Court”) reversed the trial court holding that the trial court failed to make a specific finding that the appointment of the wife was contrary to the best interests of the Ward. The Court noted that the wife disagreed with the professional guardian on various aspects regarding the Ward’s care. The Wife also had disputes with the staff of the facility which cared for the Ward, including having the Ward taken to the hospital by paramedics when he contracted pneumonia against the wishes of the nursing staff. The Wife alleged that Cramer had a hostile relationship with her. Cramer argued that having the Wife serve as health care surrogate for the Ward was not a suitable alternative to guardianship because she could not communicate rationally with the facility’s staff and because she was abusing her power. The Court noted that these difficulties and disputes were not enough to overcome the statutory presumption of Section 744.3045, Fla. Stat.

Section 744.3045 allows a person to make a written declaration listing a guardian to serve in the event of that person’s incapacity, as the Ward did. Courts are not bound to appoint such a guardian if the guardian is found to be unqualified to serve as guardian, under Section 744.3045(4), Fla. Stat., or if the court determines pursuant to Section 744.312(4), Fla. Stat., that appointing that person is contrary to the best interests of the Ward. In this case, the trial court failed to make an explicit finding that the Wife was unqualified to serve as the guardian or that her appointment would be contrary to the Ward’s best interests. The Court relief in part on Koshenina v. Buvens, 130 So.3d 276 (Fla. 1st DCA 2014), noting that simply because another relative might be a better caregiver is not enough for the court to fail to appoint the ward’s designated preneed guardian, nor is a finding of the existence of a conflict with the staff of the nursing facility because such actions are not sufficient to establish that the Wife’s appointment was contrary to the best interests of the Ward. The trial court’s finding that the Wife had herself moved the Ward multiple times and does not communicate with the Ward’s caregivers and other interested persons were not sufficient to defeat the statutory presumption of Section 744.3045, Fla. Stat. or her appointment as her husband’s health care surrogate under Section 765, Fla. Stat. The Court observed that the trial court’s findings does not show that the Wife abused her powers as proxy, although the Court noted that Florida law does not clearly define what constitutes a proxy’s abuse of power under Section 765.105(5), Fla. Stat. The Wife’s alleged interference with the Ward’s care by requiring more care for the Ward than the staff thought was required “cannot be treated as an abuse of power” because the Ward left decisions regarding his care to the Wife “unless her decisions are contrary to his wishes, as expressed in the designation.” The Court observed that no one had shown they were.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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