Insights - May 17, 2024

Under Florida Guardianship Law, Documented Preference is the Polestar

By Melissa C. Steen and Peter A. Sachs

Florida’s guardianship framework is designed to respect and honor an alleged incapacitated person (AIP)’s wishes to the greatest extent possible. While a will cannot be contested until after death, disputes may arise during life concerning the welfare, safety, and assets of a vulnerable adult. Therefore, it is paramount that a person cultivates an estate plan which clearly sets out their preferences. This should often include a discussion with their trusted loved ones about how they want their interests represented if they become incapacitated. 

Advanced Directives Empower Individuals

A comprehensive estate plan should include advance directives such as a durable power of attorney (“DPOA”), designation of healthcare surrogate (“Surrogate Designation”), and declaration of preneed guardian (“Preneed”). If a court finds a person is incapacitated, the court must then consider whether there are lesser restrictive alternatives to guardianship that would sufficiently address the incapacitated person’s issues. A DPOA and a Surrogate Designation and Preneed, along with a trust are lesser restrictive alternatives to guardianship that should protect the incapacitated person’s assets and interests. Mental weakness alone is insufficient reason for a Court to set aside an advanced directive so long as it can be shown that the individual, at the time of signing the documents, had the capacity to generally understand the nature of their decision and its implications. If a court finds that the lesser restrictive alternatives are insufficient, there is a rebuttable presumption that the person(s) nominated under the Preneed should be appointed as guardian. This can only be overcome by substantial competent evidence. If the court determines the Preneed is unenforceable, it will usually appoint one or more family members, but it will appoint a professional guardian if there is irreconcilable adversity or disagreement among the AIP’s family members.

A revocable trust is a useful tool to limit the assets that become the subject of a guardianship. A guardianship court does not have jurisdiction over an AIP’s trust assets. However, a court could direct the AIP’s attorney-in-fact to transfer assets to the trust if there is concern for the security of the AIP’s assets in the control of his attorney-in-fact, but no concern about the fidelity of the AIP’s nominated successor trustee. In the absence of a satisfactory guardian from the AIP’s family, a court could determine the appointment of a neutral nominated successor trustee to be a preferred lesser restrictive alternative obviating the need for a guardianship of the AIP’s property. A court may well feel more comfortable appointing a successor trustee who was chosen by the AIP as opposed to a professional guardian who is selected by the court from a designated list.

In addition to establishing preference for the trusted individual(s) named in the advance directives, this preference should be communicated to the named individual so that person can act if and when the principal’s capacity is challenged. 

Determining Capacity

Florida law presumes the AIP has capacity unless adjudicated by a court to be incapacitated. It follows that an AIP is presumed to have the capacity to contract unless established otherwise by due process of law. In the early stages of a guardianship proceeding, the court appoints an attorney for the AIP; however, an AIP can engage other counsel to represent him. (See below regarding applicable ethics rules.) The court may hold an adjudicatory hearing on a motion to substitute the privately retained lawyer for the court-appointed counsel. In that event, there must be factual findings that the AIP has capacity to exercise of the right to contract and engage counsel. Generally, the court will be more receptive to approve the substitution of an attorney or law firm that had represented the AIP prior to the initiation of the incapacity proceeding. The court also may direct both court appointed and privately retained counsel to appear as co-counsel for the AIP. This latter option is sometimes insisted upon by court-appointed counsel or promoted by private counsel as an added layer of protection for the AIP. 

Florida Ethics Rules Surrounding Guardianship

If a previously retained client becomes unable to make informed decisions because of a mental disability or other reasons, Florida ethics rules allow the firm to continue a normal attorney-client relationship for as long as possible, including during an alleged incapacity. This could allow the firm to represent the client in a contested incapacity proceeding to argue that the AIP is not incapacitated, or if found to be incapacitated, is not plenary incapacitated and therefore should retain some rights. Further, the firm could seek to affirm the advance directives.

Florida ethics rules also allow a previously retained firm to seek appointment of a guardian or affirm the advance directives by representing the person(s) designated under a durable power of attorney. This should be addressed explicitly with the principal and included in the engagement letter with the firm to avoid potential conflict. The firm should make an educated decision before deciding whether to represent the person appointed under the durable power of attorney. Factors to consider are whether the person has authority to act, and whether they are acting in the best interests of the AIP. If the firm does not believe that representation is appropriate, the firm should refuse to act.

Key Considerations

  • An established comprehensive estate plan will provide protection should a dispute arise.
  • Advance directives provide a safeguard from an improper intrusion into an individual’s life. These documents carry significant weight in guardianship proceedings.
  • Ensure that the principal’s preference is reflected. This will support a determination that there is a lesser restrictive alternative to guardianship.

Florida guardianship law is structured to support action taken in the best interests of the AIP. Each situation is different, and options should be discussed to determine the appropriate plan. To facilitate this discussion, a clear and helpful path often begins with examining the AIP’s wishes.

Jones Foster attorney Melissa C. Steen represents clients in litigation involving trusts and estates, guardianship, and fiduciary disputes. Peter A. Sachs is a Florida Bar Board Certified Specialist in both civil trial and business litigation and is co-chair of the firm’s trust & estate litigation practice group. Sachs represents individuals and institutions in the prosecution and defense of complex trust and estate, guardianship, and commercial litigation matters.

Reprinted with permission from the Daily Business Review. © 2024 ALM Media Properties, LLC.