In re Guardianship of Stephens, — So.2d —-, 2007 WL 2811591 (Fla. 2d DCA Sep 28, 2007)
Who gets appointed to be mom’s guardian isn’t decided by family members, and it isn’t even decided by mom . . . it’s decided by a judge. This fact of life under Florida law usually doesn’t sit well with family members, which I’ve written about before [click here].
From a practitioner’s perspective, however, the real question is: “What does it take to convince a trial court that family members should NOT be appointed as guardian?” To answer that question you need appellate decisions with lots of facts, the more detailed the better. The linked-to case delivers on this front in spades. Here’s why the judge in this case appointed Lutheran Services Florida as guardian of mom’s property and person – and NOT any of her 9! adult children:
The Magistrate was presented with evidence that the family was “dysfunctional,” that the siblings were unable to get along and cooperate with each other to care for their mother, and that there were serious conflicts about how the family business should be run, inclusive of the Ward’s assets and money in general. Some of the siblings had made choices which could be in conflict with and affect the Ward’s financial stability, such as, for example, setting up an irrevocable trust containing questionable terms. Some of the siblings had created “alliances” to the exclusion of other siblings. They were unable to come together on simple issues, including the core issue concerning their mother’s care. As evidenced by this appeal, they could not even agree on the designation of a guardian. In view of family dynamics, appointing one of the siblings as a guardian for any purpose would clearly not be in the Ward’s best interests.
The linked-to case also provides a solid summary of Florida law governing the appointment of a guardian in contested proceedings:
Section 744.312(1), Florida Statutes (2006), styled “Considerations in appointment of guardian,” provides that “the court may appoint any person [FN3] who is fit and proper and qualified to act as guardian, whether related to the ward or not.” (Emphasis added.) Section 744.312(2) adds:
The court shall give preference to the appointment of a person who:
(a) Is related by blood or marriage to the ward;
(b) Has educational, professional, or business experience relevant to the nature of the services sought to be provided;
(c) Has the capacity to manage the financial resources involved; or
(d) Has the ability to meet the requirements of the law and the unique needs of the individual case.
(Emphasis added.) While the wishes of the ward shall be considered in appointing a guardian, they are not controlling. § 744.312(3)(a); Ahlman v. Wolf, 413 So.2d 787, 788 (Fla. 3d DCA 1982).
[FN3.] The reference to “person” in this context includes individuals or corporate entities that typically represent wards when no qualified family members are available or willing to serve as guardian. See § 1.01(3), Fla. Stat. (2006).
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We . . . realize that family members would naturally believe they should be “entitled” to appointment. However, in the guardianship arena, the legislature has rightly determined that such expectations are not binding on the court. Thus any “preference” for family applies only within certain discretionary bounds. The guardianship statute does not confer upon certain family members an absolute and automatic right to be appointed guardians. See In re Guardianship of R.N.B., 429 So.2d 796, 797 (Fla. 4th DCA 1983) (“Indeed, the statute provides that the court may appoint any person ‘who is qualified to act as guardian, whether related to the ward or not.’ “ (quoting section 744.312(1), Fla. Stat. (1981))). The best interests of the Ward-which include choosing a qualified guardian for the Ward-come first. Family member preference in and of itself is secondary, regardless of how well qualified the family members are.