Written by Jeffrey Skatoff • August 2nd, 2016
Jeffrey Skatoff prevailed in a guardianship dispute in Palm Beach County, over the issue of less restrictive alternatives.
Most guardianship litigation is over who is entitled to control the financial affairs of an incapacitated senior. In some cases, the senior has previously executed a durable power of attorney and a health care proxy. Before a guardian can be appointed, the guardianship court must consider whether less restrictive alternatives exists that would obviate the need for a guardian.
As explained by an appellate court, in In re Guardianship of Fuqua, 646 So. 2d 795 (Fla. Dist. Ct. App. 1st Dist. 1994):
We conclude, however, that the record does not reflect a consideration of any less restrictive alternatives than plenary guardianship, contrary to the requirements of Chapter 744. Under section 744.331(6)(b), Florida Statutes (1993):
in any order declaring a person incapacitated the court must find that alternatives to guardianship were considered and that no alternative to guardianship will sufficiently address the problems of the ward.
Further section 744.344(2), Florida Statutes (1993), provides, in part, that:
the order appointing a guardian . . . must be the least restrictive appropriate alternative, and must reserve to the incapacitated person the right to make decisions in all matters commensurate with his ability to do so.
As further explained in Adelman v. Elfenbein, 174 So. 3d 516, 519 (Fla. Dist. Ct. App. 4th Dist. 2015):
The statutory scheme governing incapacity and guardianship is strictly construed. The legislature did not envision keeping cases open indefinitely where alternatives to guardianship have been established and the court has found that no guardian is required. "The obvious import behind all of these provisions [of the guardianship statute] is to require the appointment of a guardian only when no other lesser intrusion on the privacy of the ward will accomplish the purpose of protecting the ward's property." Smith, 821 So. 2d at 1199.
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").
In a recent case tried in Palm Beach County, Attorney Skatoff was able to persuade the Court that existing powers of attorney were adequate to allow fo the care of the incapacitated person. Other family members contended that the agent named in the power of attorney had engaged in sufficiently bad acts so as to disqualify her from serving, but these challenges were dismissed by the guardianship court.
Jeffrey Skatoff is a Florida guardianship attorney. He handles contested guardianships throughout the State of Florida. he can be reached at (561) 842-4868.