4th DCA Reverses Order Appointing Guardian Advocates for Ward Because it did not Comply with Specific Requirements of § 393.12(8), Fla. Stat.

Posted on June 12, 2016

In the subject case, Howard v. Howard, 2016 Fla. App. LEXIS 7978 (Fla. 4th DCA, 2016), the father, mother, and brother (collectively “Appellees”) of Katherine Howard (the “ward” and “Appellant”) petitioned the trial court to declare the ward incapacitated and appoint themselves guardian advocates of the ward. Appellees stated in their petition that the ward suffered from spastic quadriplegia (a severe form of cerebral palsy), anxiety, and depression and sought to remove the ward’s right to personally apply for government benefits, to have a driver’s license, and to travel. They wished to take on, as the ward’s limited guardian advocates, her rights: to contract, to sue and defend lawsuits, to apply for government benefits, to manage property, to determine residence, to consent to medical and mental health treatment, and to make decisions about the ward’s social environment or other social aspects of the ward’s life.

A hearing was held on the petition which the ward did not attend because according to her attorney, she did not want to. Her attorney did waive her presence and requested additional time to speak with her. Appellees’ attorney asserted that the ward had waived her right to attend the hearing. The court held the hearing in the ward’s absence. At the hearing, the ward’s father gave largely unobjected to testimony regarding the ward’s physical and mental limitations, which was supported by documents such as a doctors’ reports, one of which stated that the ward’s “condition precludes her from being self-supporting now, and in the future . . . .” The court granted Appellees’ petition and appointed them as the ward’s guardian advocates, pursuant to section 744.3085, Fla. Stat., finding that no alternative to guardian advocacy would sufficiently address the needs the ward.

The ward appealed, arguing that the court did not make a finding of good cause when it proceeded with the hearing without her being present. The Fourth DCA found that the court did not improperly exclude the ward, although it allowed the hearing to proceed without the ward being present. The ward’s non-appearance was good cause for holding the hearing in her absence, as a voluntary waiver of her right to attend the guardianship hearing can be good cause to proceed without the ward and effectively excludes the individual.

The court did however note that a waiver must be both knowing and voluntary and that a trial court has an obligation to make findings as to such. In a case such as this, courts may examine the individual on the record to determine whether the individual is knowingly and voluntarily waiving his or her right to attend the hearing or the court may examine third parties familiar with the potential ward to ascertain the voluntariness of the potential ward’s waiver. 

In the subject case, the court heard from the ward’s attorney who stated that the ward did not want to attend the hearing. Although the court did not expressly say the ward’s non-appearance was good cause, its comments made clear that it implicitly considered the ward’s decision to not appear was good cause to hold the hearing in her absence. Although the record did not show the ward’s decision to waive her right to be present was made knowingly and voluntarily, the ward does not raise this issue on appeal. Therefore, the Fourth DCA affirmed the trial court in this issue.

However, the ward also alleged on appeal that the the lower court’s order did not comply with section 393.12(8), Fla. Stat. and on this issue, the Fourth DCA agreed with her. Specifically, the Court noted that the order was deficient because it did not make findings as to the nature and scope of the ward’s lack of decision-making ability, as required under section 393.12(8)(a), Fla. Stat. The lower court’s order also did not make a finding as to any specific legal disabilities to which the ward was subject, as required under section 393.12(8)(c). The Fourth DCA noted that the failure of the trial court to make findings of fact and conclusions of law as required under the statute frustrates judicial review. Thus, the Fourth DCA remanded the case with instructions that the lower court make the specific required findings of fact and conclusions of law in accordance with section 393.12(8).

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 gmednick@mednicklawgroup.com.

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