The need to appoint a new or successor guardian for a ward under a Florida guardianship is a common situation. However, the guardianship rules must be followed, and wards cannot be arbitrarily swapped between guardians.
The Need To Appoint a New Guardian Does Not Trump Due Process
In Legal Aid Society v. Guardianship of Jaffe, a Florida guardianship court was faced with appointing a new guardian for an incapacitated ward. In 2006, Jennifer Jaffe (the “Ward”) was determined to be incapacitated. The Ward has had at least six court-appointed guardians since 2006, the most recent guardian being Ferd and Gladys Alpert Jewish Family & Children’s Service of Palm Beach County, Inc. (“AJFCS”).
AJFCS petitioned to resign as the Ward’s guardian. AJCFS alleged that it could not control the actions of the Ward, the Ward’s family, and the effect of the Ward’s family on the Ward’s person and property. For example, the Ward’s family was giving the Ward money directly, and arranging medical treatments for the Ward without the involvement of AJCFS. The Ward was driving a car despite the removal of the Ward’s right to drive, and was in an unhealthy relationship with a man. AJCFS claimed that the situation had become untenable, and petitioned to resign as the Ward’s guardian. Appointing a new guardian for the ward was requested.
In the petition to resign, AJCFS suggested that the Florida Statewide Public Guardian appoint a local public guardian. AJCFS did not provide notice to either the Statewide Public Guardian or Legal Aid, the local public guardian. Notice is required under Florida probate rule 5.560(c).
Without notice to Legal Aid, the Florida guardianship court appointed Legal Aid as the new successor guardian. The order was served on Legal Aid. After receiving the order, Legal Aid immediately filed a motion for rehearing based upon the lack of notice. Legal Aid asserted that it did not accept the appointment as successor guardian because another ward would cause Legal Aid to exceed the Florida statutory ratio limiting the number of wards Legal Aid could serve. The Florida guardianship court granted the rehearing.
At the new hearing, Legal Aid argued that the Florida guardianship court lacked authority to order Legal Aid to take the case and to compel Legal Aid’s appointment. Legal Aid also urged that section 744.708(7), Florida Statutes provides for a staff-to-wards ratio of one to forty. Legal Aid was at the ratio, and could not legally take on any more wards.
The Florida guardianship court dealt with the ratio issue by ordering a “swapping” of wards. AJCFS was ordered to take over as guardian for one of Legal Aid’s wards in exchange for Legal Aid taking over the subject Ward. The Florida guardianship court did not specify the particular ward that would be swapped out. Legal Aid appealed the order of appointment.
5 Reasons You Cannot Arbitrarily Swap Wards Between Guardians
The Florida appellate court ruled that there was no authority for the Florida guardianship court to involuntarily appoint Legal Aid as new guardian of the Ward, for a number of reasons:
First, section 744.708(7), Florida Statutes states: “The ratio for professional staff to wards shall be 1 professional to 40 wards.”
The Florida appellate court noted that:
In 1996, this provision was amended so that ‘[t]he Statewide Public Guardianship Office may increase or decrease the ratio after consultation with the local public guardian and the chief judge of the circuit court… It is thus not within the authority of a single judge within a circuit to compel the public guardian to exceed the statutorily imposed ratio.
Second, the statute does not direct the public guardian to serve as guardian for all indigent incapacitated wards. The Florida appellate court noted that, unlike public defenders who are explicitly required by statute to represent any indigent individual charged with a felony, the legislature did not mandate that the public guardian be appointed for all indigent incapacitated persons. Said another way, the legislature could have mandated that the public guardian be appointed for all indigent incapacitated persons, but did not.
Third, the history of Rule 5.560 of the Florida Probate Rules confirms that the Florida guardianship court has no authority to make an involuntary appointment of public guardian just because appointing a new guardian is requested. Prior to 1989, the rule provided that “[t]he court on its own motion may appoint the public guardian without notice to the public guardian.” But this language disappeared from the rule in 1989, and has never reappeared. Instead, notice is required.
Fourth, wards are not fungible. The guardianship court cannot just order a “swapping” of wards. The Florida appellate court explained:
Every ward has a guardianship plan, see § 744.363, Fla. Stat. (2015), and public guardians are required by statute to personally visit the ward at least once each calendar quarter, see § 744.708(6), Fla. Stat. (2015). Thus, there is every expectation that the public guardian will develop some rapport with the ward. A guardian is not allowed to resign without assurances that the ward’s interest will not be placed in jeopardy. See § 744.467, Fla. Stat. (2015). The court’s order compelling Legal Aid to “swap” out a ward runs contrary to and ignores the principles underlying these statutes.
Fifth, Legal Aid is not only at its capacity for wards, there is a waiting list. The waiting list consists of persons who meet eligibility requirements. By ordering Legal Aid to accept this Ward, whose eligibility had not even been determined, the Florida guardianship court prevents the public guardian from serving those incapacitated persons who are already eligible and awaiting appointment of a guardian.
The Florida appellate court closed its opinion by recognizing the difficulties faced by the Florida guardianship court, stating:
We recognize that there are few options available to the court. And, as Legal Aid points out, there is no guarantee that it would have any better success with this ward than AJFCS, even it if could accept the appointment as the ward’s guardian. If the ward is truly a danger to herself, involuntary hospitalization or placement may be needed, for which court approval must be obtained. See § 744.3215(4), Fla. Stat. (2015). The court may also request the involvement of the chief judge and the Statewide Public Guardianship Office to review the capacity of the public guardian in Palm Beach County.
The Florida guardianship court had no authority to make an involuntary appointment of Legal Aid as the public guardian of an incapacitated ward when there is a need to appoint a new guardian. The case was reversed and remanded for further proceedings.
