Hayes v. Guardianship of Thompson, 2006 WL 3228916 (Fla. Nov 09, 2006)

Alan Gerson, Legal Standing (2009)

This case is important for two reasons.

First, the Florida Supreme Court resolved a conflict among the DCAs regarding who has standing to litigate fees (both attorney’s and guardian’s) in guardianship proceedings.

Here’s how the Court summarized its holding, which has the effect of expanding the class of potential litigants (i.e., more people have standing to litigate, thus expect more litigation to follow in guardianship proceedings):

Although we cannot provide specific criteria, we reject the bright-line rule adopted by the Third District in [McGinnis v. Kanevsky, 564 So.2d 1141 (Fla. 3d DCA 1990)] that precludes an heir from participating in a proceeding for guardian’s or attorney’s fees. Implicit in the Third District’s reasoning is that heirs of a ward should never be afforded standing to participate in proceedings for guardian’s or attorney’s fees because there are sufficient built-in procedural safeguards to protect the interests of the ward:

[J]ust as it is obviously for the competent person to spend or misspend his assets as he pleases, so it is up to the guardianship estate, regulated by the guardian and the court, to do the same without the interference or concern with the totally non-altruistic wishes of the ward’s relatives or legatees.

564 So.2d at 1144 n. 9 (emphasis supplied).

We disagree. As the Fourth and Fifth Districts recognized in [Bachinger v. Sunbank/South Florida, N.A., 675 So.2d 186 (Fla. 4th DCA 1996)] and [Sun Bank & Trust Co. v. Jones, 645 So.2d 1008, 1017 (Fla. 5th DCA 1994)], “[c]ourts must scrupulously oversee the handling of the affairs of incompetent persons under their jurisdiction and err on the side of over-supervising rather than indifference.” Bachinger, 675 So.2d at 188 (quoting Jones, 645 So.2d at 1017). Moreover, although courts must approve petitions for guardian’s and attorney’s fees, “it is highly unrealistic to assume that such an ex parte procedure would involve any high level of scrutiny.” Bachinger, 675 So.2d at 187. Thus, depending on the circumstances of the case and the specific issues involved, heirs of a ward may be considered “interested persons” for the purpose of participating in a guardianship proceeding, including a proceeding for guardian’s or attorney’s fees. See, e.g., Bachinger, 675 So.2d at 188 (beneficiaries under the ward’s will, who cared for her before she became incompetent, were interested persons for the purpose of filing objections to guardian’s petition for final discharge).

Probate v. Guardianship: Different Priorities = Different Outcomes

This opinion is also important because it highlights how different public-policy priorities in probate and guardianship proceedings can result in courts erring on the side of less litigation when possible (probate) and erring on the side of more litigation if needed (guardianship).

This is how the Florida Supreme Court described the public-policy priority underlying all guardianship proceedings:

In guardianship proceedings, the overwhelming public policy is the protection of the ward. See § 744.1012, Fla. Stat. (2006) (declaring that the purpose of the Florida Guardianship Law is “to promote the 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”).

Viewed from this perspective, it’s almost inevitable that the Florida Supreme Court would construe Florida law in a way that errs on the side of making sure all “interested persons” are given the opportunity to participate in contested guardianship proceedings — as long as the goal is to better the ward’s welfare.  The litigant that understands and incorporates this perspective into his or her case has a clear advantage.

By contrast, in probate proceedings the public-policy priority is efficiency: when in doubt, err on the side of less litigation not more.  Here’s how the Florida Supreme Court encapsulated this public policy directive in 2000:

There is a “strong public policy” in this state “in favor of settling and closing estates in a speedy manner.” May v. Illinois Nat’l Ins. Co., 771 So.2d 1143, 1151 (Fla.2000).

As I’ve noted over and over again on this blog, this public-policy priority plays itself out most clearly in probate litigation involving creditor claimsAgain, the litigant that understands and incorporates this perspective into his or her case has a clear advantage.

Briefs: