Adelman v. Elfenbein, — So.3d —-, 2015 WL 5026178 (Fla. 4th DCA August 26, 2015)

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BONUS MATERIAL: You can access the 4th DCA’s video of oral argument for this case. Just click here, then enter case number 13-2446 in the search box, then press the search button. When you see this case listed, click the link to download the file to your computer.

Florida’s elder guardianship system has gotten a lot of bad press lately (see here). Some of this criticism is unfair, but not all of it. To the extent we do have a “systemic” problem, in my opinion the root cause is an underfunded and overworked court system where judges are routinely expected to juggle thousands of cases at a time. Bottom line, you get what you pay for.

So what’s to be done? Simple: stay out of court. And how do the elderly do that? By relying on the same tools estate planners have been using for decades: durable powers of attorney, health care surrogate designations, and revocable trusts. These are all “less-restrictive alternatives to guardianship,” which means a court shouldn’t appoint a guardian for you if you’ve signed one (or all) of them, which is what keeps you out of court. The statutory authority for this stay-out-court card is found in F.S. 744.331(6)(b), which provides in relevant part as follows:

A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person.

But none of this works if our trial court judges allow themselves to get pulled into family disputes in a way that exceeds their jurisdictional authority. That’s what happened in this case.

Case Study:

At the heart of this case is an elderly man who all agree is incapacitated. There’s also no dispute over the fact that he had previously executed “advance directive documents” that: (a) provided a less-restrictive alternative to guardianship, and (b) appointed his ex-wife his surrogate and fiduciary, making a court-appointed guardian unnecessary.

[T]he general magistrate found that, while plenary incapacity was established, Mr. Adelman’s advance directive documents provided a less-restrictive alternative to guardianship. Mr. Adelman’s former spouse, Ruby Adelman, was a party to the proceeding and was named in his advance directive documents as attorney-in-fact, health care surrogate, plenary guardian, and trustee. The trial court adopted and ratified the general magistrate’s report and thereafter dismissed the grandniece’s petition for appointment of a plenary guardian. No appeal was taken from those orders.

As so often happens in these cases, the family conflict that initially brought the case before the court didn’t go away once the case was dismissed. About six months later the original petitioner accused ex-wife of not doing a good job as caretaker, so she filed a “petition to reopen the guardianship.” According to the 4th DCA:

She sought appointment of a professional plenary guardian, alleging that Mr. Adelman’s former spouse was not providing “consistent adequate care.” Over continuing and vigorous objection by both Mr. Adelman and his former spouse, the trial court entertained the petition, conducted a trial, and issued an order appointing Lori Shuman–Auspitz as the professional plenary guardian for Mr. Adelman.

Here’s the problem. Once the trial court dismissed the original guardianship petition without ever appointing a guardian, it lacked jurisdictional authority to get involved in the case again. No jurisdiction = reversal, so saith the 4th DCA:

We find that . . . ongoing jurisdiction of the circuit court in an incapacity proceeding does not exist unless a guardian is appointed. . . . Because the trial court lacked jurisdiction to enter the order, we reverse.

If anyone wants to bring these parties back before this court, he or she needs to file a new complaint and comply with all of the procedural rules we have in place to make sure we get the best work-product possible from our courts. In other words, there’s a right way to tackle this problem. Here’s how the 4th DCA made this point:

Mr. Adelman’s advance directive documents entrust his affairs to his former spouse. Her role is fiduciary, and the laws of this state are more than adequate to protect him from future exploitation or abuse. See, e.g.,§§ 709.2101–.2402, Fla. Stat. (2015) (“Florida Power of Attorney Act”); §§ 415.101–.113, Fla. Stat. (2015) (Florida “Adult Protective Services Act”).

Procedural jurisdiction = red light/green light:

The trial court judge in this case exceeded the scope of his “procedural jurisdiction” by entering an order once the original case had been dismissed — the jurisdictional light was red. This court doesn’t have a green light to proceed until someone triggers its jurisdictional authority by filing a new legally authorized complaint/petition. Until then, the light stays red and any litigation that goes on during that time is a big waste of time and money for all concerned.

You won’t really understand what’s going on in this case if you don’t zero in on the “procedural jurisdiction” concept lurking under the surface. Tampa trial court judge Scott Stephens defined this kind of jurisdiction in his excellent Florida Bar Journal article entitled Florida’s Third Species of Jurisdiction:

Procedural jurisdiction has nothing to do with the scope of the court’s constitutional or statutory power, or the status of the parties. Instead, it is a matter of compliance with applicable procedural principles, some codified in rules, but more often products of case law. These principles can correctly be characterized as “jurisdictional,” in that they address a particular court’s authority to proceed in a specific direction at a defined time. Even when a court has subject matter jurisdiction and personal jurisdiction — hence the power to proceed — the procedural equivalents of traffic signals regulate when it is permissible to proceed. For example, a case must be commenced by pleadings before a court can enter an order. Until that occurs, the court is like a motorist facing a red light: Proceeding is physically possible but is deterred by the prospect of undesirable consequences. The light turns green once proper pleadings are filed, but directional signals (rules confining actions to the scope of the pleadings) still limit where the court may permissibly go. When a final judgment is entered, the court faces another red signal.

By the way, defining our “jurisdictional” terms matters because it tells us when we need to first raise this objection — or risk waiver. According to judge Stephens, you need to assert this objection immediately:

As a practical matter, counsel should be careful to raise all forms of jurisdictional objection at the first opportunity, since most jurisdictional objections are procedural, and waived if not timely asserted.

You’ve been warned!