Koshenina v. Buvens, — So.3d —-, 2014 WL 304889 (1st DCA January 29, 2014)
As the Baby Boomer generation passes age 65, the number of people living with cognitive impairment is expected to jump dramatically. Based on US Census data, researchers estimate that in 2000, 4.5 million Americans aged 65 years or older had some form of Alzheimer’s disease, the most well-known form of cognitive impairment; and this number is estimated to increase by almost 3-fold, to 13.2 million, by 2050. How our estate planning clients plan for this contingency may be one of the most important decisions they’ll ever make. In Florida a key component of that planning is a client’s written designation of a preneed guardian pursuant to F.S. 744.3045. As the 1st DCA noted in the linked-to case above:
This designation is one of life’s most intimate and important decisions involving highly personal and private judgments about who will provide care, love, and support when persons are unable to do so for themselves.
A person’s preneed guardianship designation is given “teeth” by F.S. 744.312(4), which obligates a probate judge to appoint your designated legal guardian unless the court determines that appointing such person is actually contrary to your best interests.
What makes the linked-to opinion so important for Florida trusts and estates lawyers is that it’s one of the very few reported cases to address specifically: (1) what’s the appropriate test for determining whether a person was competent at the time she executed her preneed guardianship designation, and (2) what’s the appropriate test under F.S. 744.312(4) for when a probate judge is authorized to disregard a person’s preneed guardianship designation.
In late 2010 wife (Linda) executed a designation of preneed guardian designating her husband (James) to be her preneed guardian. Sometime in 2010 at age fifty-seven, Linda began showing signs of mental deterioration and was subsequently diagnosed with Pick’s Disease—a rapidly progressive and terminal form of dementia. Because of the disease, Linda lost the ability to care for herself, interact socially, or control her behavior. She is unable to live independently and all parties—including James, Linda’s husband—agree that Linda needs care in a twenty-four hour, seven-days a week facility thereby excluding any arrangement where she would return to her home with her husband, even temporarily. There was a falling out between James and Linda’s two siblings, who in 2012 successfully petitioned for appointment of themselves as her emergency temporary guardians. In response James filed a notice of “Designation of Preneed Guardian” (Designation), which Linda had executed designating him as her preneed guardian. At the two-day evidentiary hearing on their petition, the siblings sought to prove the Designation was invalid either because Linda was incompetent when she made it or because of James’s undue influence on her. Here’s how the 1st DCA summarized the probate judge’s findings:
Thereafter, trial court found that Linda suffered no abuse at the hands of James and that all her injuries were a result of her progressing disease. The trial court further found, however, that Linda had done better in the care of the Siblings as emergency temporary guardians than she had done in James’s care and that James’s personality and social skills were not conducive to making appropriate decisions for the care of Linda. Further, although Linda executed the Designation naming James her preneed guardian, it was executed only “after the dementia process had seriously compromised her ability to understand what she was doing” and the trial court “seriously questioned”—despite possible lucid intervals that Linda may have experienced—whether Linda understood what she was doing when she executed the document. The trial court stopped short, however, of finding Linda incompetent at the time she executed the Designation. It went on to conclude that it was not in Linda’s “best interest” to honor Linda’s preference expressed in the designation “because of the [c]ourt’s findings regarding events subsequent to the execution of this document.” The trial court named the Siblings as plenary co-guardians of Linda, but prevented them from removing her from the Sunrise facility and restricted James’s visitation.
What’s the competency standard for preneed guardianship designations?
The first issue tackled by the 1st DCA was the challenge to the Designation’s validity on the grounds of capacity. We all know the legal standard for competency to execute a contract is different from the competency needed to sign a will or authorize medical care. What we didn’t know — until now — is what’s the legal standard for competency to execute a preneed guardianship designation. Did Linda need only have sufficient competency to know the person she was trusting to serve as her guardian was her husband or did she also have to understand the implications of that decision (similar to the standard applied to wills)? To my knowledge, this is the only Florida decision addressing that question directly. According to the 1st DCA, the standard is the same as applied to wills:
During oral argument, James urged this Court to hold that in the context of guardianship proceedings, determining a ward’s competency requires only a finding that the ward is capable of understanding that she is selecting a person she trusts. We reject this approach, however, because it would not require the ward to understand the implications of the document she is signing, something we believe is critical to making an informed decision.
Rather, we hold that the appropriate test for determining whether a ward was competent to make a decision regarding who will be her preneed guardian, is whether the ward had the capacity to generally understand the nature of the decision she is making and its implications. This test is analogous to that used in the context of testamentary capacity cases, which requires that a testator understand in a general way the nature and extent of his property to be disposed of, the testator’s relation to those who would naturally claim a substantial benefit from his will, and the effect his disposition will have. See, e.g., In re Estate of Edwards, 433 So.2d 1349, 1350 (Fla. 5th DCA 1983).
What’s the appropriate test under F.S. 744.312(4) for when a probate judge is authorized to disregard a person’s preneed guardianship designation?
The second and much thornier issue tackled by the 1st DCA goes to the heart of why clients sign preneed guardianship designation in the first place. What these documents are supposed to do is ensure your free will is respected — even after you’ve lost the ability to think for your self. So when we decide who our caretakers are going to be, we shouldn’t have to worry about whether our children, or a judge sitting in a courtroom years later, agree with us. Or should we? That’s the question presented to the 1st DCA.
According to the probate judge in this case he was authorized under F.S. 744.312(4) to disregard Linda’s designation of her husband as her preneed guardian if he, the judge, decided it would not be in Linda’s “best interest” to do so. Whether they know it or not, I think this is the standard most well-meaning judges operate under. For two prior cases involving preened guardianship designations in which I believe this mindset is reflected, see here, here.
Wrong answer says the 1st DCA. What the judge should have asked himself in this case is if appointing Linda’s husband was contrary to her best interests. In other words, courts don’t get to second guess a client’s freely-chosen guardian in hindsight. All they’re supposed to do is step in and make a change if the designated guardian will (or might) cause harm to the ward. This distinction is huge in terms of preserving personal autonomy.
Had section 744.312(4) been written to say that trial courts could simply apply a generalized “best interest” analysis—without consideration of whether the appointment of the preneed guardian “is contrary to the best interests of the ward”—the trial court’s analysis would be appropriate. But context and language matter. Once a determination is made that a ward competently designated a preneed guardian, that determination is entitled to deference and respect else the now-incompetent ward’s desires be too easily impeded, if not thwarted entirely. . . . It is why the legislature established a rebuttable presumption that the preneed guardian is “entitled to serve” absent disqualification or a finding that appointment “is contrary to the best interests of the ward.”
The linguistic distinction between what “is contrary to the best interest of the ward” and what may be in the “best interests” of a ward is subtle, but its legal ramifications are potentially life-altering, particularly in the context of overriding a ward’s personal designation of whom she wants to act on her behalf on private, personal health matters. This designation can be said to reflect what the ward believed was—and would be—in her long-run best interest. Overriding the statutory presumption in favor of the ward’s appointment of the designated preneed guardian is thereby no minor matter. It cannot be overcome with a generalized “best interest” approach; instead, the judicial mind must ask how is the appointment of the ward’s chosen guardian sufficiently “contrary” to her best interests that the court should disregard the ward’s choice and appoint someone else?
. . .
Accordingly, given the inherent flexibility of and lack of definitive caselaw on what constitutes a ward’s “best interest,” the standard in section 744.312(4) is best understood as creating a hurdle to show that specific actions/inactions of the designee are sufficiently egregious as to be “contrary to” the “best interests” of the ward thereby justifying a change in the status quo (or here, rebutting the presumption that a preneed guardian should be appointed).
So when will appointment of a person’s designated preneed guardian be contrary to her best interest? According to the 1st DCA, simply deciding some other relative might do a better job or that the designated guardian is a bit of a jerk, isn’t enough; what’s required is evidence of actual (or threatened) harm to the ward.
Admittedly, little judicial analysis exists on how the statutory standard at issue in section 744.312(4) (i.e., “is contrary to the best interests”) contrasts with a generalized “best interest” approach. At a minimum, that another relative might be a better caregiver is not enough under section 744.313(4) to unseat the designated preneed guardian; the ward’s designation of the preneed guardian-instead of the relative-reflects the ward’s preference on the matter. Similarly, the statutory standard requires more than a finding that a designated preneed guardian is lacking in interpersonal and social skills. For instance, in this case the record is bereft of any finding that James—and his bull-in-the-china-closet approach to caring for Linda—is anything other than his persona as Linda understood him to be. She may have dearly wanted a loving husband (no one disputes they love each other) aggressively advocating for her as she enters a life/health care environment that can be daunting to those unaccustomed to protocols and expectations within the walls of the medical community. Contrarily, a ward’s designation does not provide a guardian license to ignore medical directives and create disorder within a facility or office.
[1st DCA’s list of past cases in which courts have ruled against family members]:
FN6. See, e.g., Morris, 1 So.3d 1236 (affirming trial court’s finding that a ward’s minimally involved family members were not appropriate persons to appoint as guardians) [discussed here]; Davis, 686 So.2d 763 (finding conflict of interest rebutted the statutory presumption that a preneed guardian entitled to serve as guardian); In re Guardianship of Stephens, 965 So.2d 847, 851–52 (Fla. 2d DCA 2007) (reasoning it was contrary to a ward’s best interest to appoint any member of the ward’s dysfunctional family as guardians) [discussed here]. See also Duke v. Duke, 522 So.2d 258 (Ala.1988) (reversing trial court decision that appointment of son as guardian of incapacitated mother was contrary to mother’s best interest where there was no evidence son was dishonest, financially irresponsible or self-dealing, or uncaring and did not tend to her needs); In re Moses, 615 S.E.2d (Ga.Ct.App.2005) (affirming trial court’s decision to appoint ward’s sister rather than daughter as guardian of the person where although there was statutory preference for children over siblings, evidence showed ward expressed preference for sister and daughter was neglectful and abusive to ward); In re Hodgman, 602 S.E.2d 925 (Ga.Ct.App.2004) (finding no abuse of discretion for trial court to depart from statutory preference in appointing guardians where evidence demonstrated son mismanaged ward’s assets, acting in a manner contrary to the ward’s best interest); Brown v. Storz, 710 S.W.2d 402 (Mo.App.E.D.1986) (holding evidence supported appointment of mother as guardian of incompetent ward where substantial evidence demonstrated ward’s spouse was a habitual drunkard); see also Whitton, supra note 5, at 13.