This has been an eventful month in the Fourth DCA for Florida guardianship lawyers and the field of guardianship law, because of two significant decisions issued four weeks apart. The 4th District Court of Appeal is the Florida appeals court which hears matters involving wills, trusts, estates, guardianships and probates for Palm Beach, Broward and Martin Counties. Florida probate attorneys and Florida guardianship lawyers will want to read these two 2016 decisions.
Florida’s Evolving Law on Guardianship
- Most of us understand that when a person is incapacitated, that they cannot, and should not, enter into binding agreements.
- On the other hand, if a person is adjudged to be sufficiently competent to do things, such as to retain the right to marry, they can, and should be, permitted to do so.
- Strangely, neither proposition is necessarily true in the Fourth DCA.
Palm Beach 4th DCA Issues Gort Opinion on Guardianship Law— Gort v. Gort, Nos. 4D14-3830, 4D15-398 (Fla. 4th DCA Feb. 3, 2016)
- In the Palm Beach guardian case of Gort v. Gort, 2016 WL 303257 (Fla. 4th DCA Feb. 3, 2016) the alleged incapacitated person (AIP) suffered from paranoid schizophrenia and auditory hallucinations.
- He was the subject of competing, pending petitions to determine incapacity filed by his brother and his cousin.
- An examining committee was appointed by the Palm Beach probate court.
- All three members of the examining committee determined that the AIP was incapacitated and lacked the ability to contract.
- Nevertheless, the AIP disputed this determination.
Does Mediation Work in Guardianship Cases?
- The trial court ordered the parties to mediation.
- At mediation, all of the parties (including the paranoid, hallucinating, schizophrenic AIP) reached a settlement which resolved the AIP’s living situation without the need for guardianship.
- Under the settlement, the petitions to determine incapacity were voluntarily dismissed.
- Over a year later, a dispute erupted over the term and enforceability of the mediated guardianship settlement agreement.
- The original petitioning sibling wanted to enforce the Palm Beach settlement agreement.
- The AIP filed a petition, joined by his cousin, to have the agreement declared unenforceable.
- The AIP argued that he signed the agreement under duress.
- He had been fearful that if he did not sign, he would be committed involuntarily to an institution.
- The circuit court entered an order upholding the mediated agreement.
- It found:
(1) the agreement is silent as to its termination date, but it is reasonable to interpret the termination date as the AIP’s death;
(2) the petitioner relied to his detriment on the agreement when he voluntarily dismissed his petition to determine incapacity;
(3) the AIP did not sign the settlement agreement under coercion or duress because the petitioner did not engage in improper or illegal conduct; and
(4) it was not improper for the parties to enter into the settlement agreement after a petition to determine incapacity had been filed but before an adjudicatory hearing because there is no requirement for an adjudicatory hearing every time a petition is filed.
Do You Need A Guardianship Trial Each Time a Petition is Filed?
- For obvious reasons, the AIP did not raise the obvious potential flaw in the agreement, which was his own apparent incapacity to contract.
- Likewise, the trial court did not independently inquire or resolve the question of the AIP’s capacity in the enforcement proceeding.
- Instead, it upheld the agreement and awarded attorney’s fees to the original petitioning sibling.
Guardianship Appeal at 4th DCA
- On appeal, the AIP claimed that the settlement was infirm because the trial court could not have allowed the guardianship petition to be dismissed.
- In rejecting the AIP’s position, the Fourth DCA held that the petition could be voluntarily and absolutely dismissed without judicial resolution of the AIP’s capacity.
- Its reasoning was very simple: “common sense dictates that a petitioner has that ability.”
- In most other contexts, a judicial proceeding can be voluntarily dismissed by the party that initiated it.
- Once that happens, the trial court loses jurisdiction over the case. Period.
Dissent in Gort Florida Guardianship Case
- Judge Martha Warner dissented.
- Because there was a pending petition to determine incapacity, she would have agreed with the AIP that the trial court was required to follow through and resolve the pending petition.
- Her position was supported by the Fourth District’s 2012 statement that “[i]f a person is incompetent, it is the duty of the court to assure that person’s protection and his or her autonomy is respected to the greatest extent possible.” Jasser v. Saadeh, 97 So. 3d 241, 247 (Fla. 4th DCA 2012).
- According to Judge Warner, no such petition should ever be dismissed unless a majority of the examining committee finds that the AIP has capacity.
- Judge Warner’s point was that here the AIP was preemptively incapacitated: the examining committee so found.
- Yet the AIP signed a settlement agreement that was supposed to be binding.
- That does not make logical sense.
- If the AIP really is incapacitated, the agreement is invalid and voidable at anyone’s election.
- Likewise, a trial court should not approve a settlement agreement that was made by an incapacitated person without substantial additional inquiry regarding the AIP’s best interests.
Florida Guardianship Attorneys Must Wrangle with Gort & Saadeh
- As the very same appellate Court had written in Saadeh:
- To permit dismissal of proceedings where a party is in fact incompetent may endanger that person. On the other hand, without knowing whether the person is actually incompetent, the court could restrict a person’s independent ability to deal with his property and place it out of the control of a person who may be completely capacitated.
- The guardianship statutes and rules should not be used to protect competent persons from their spendthrift ways or to protect their beneficiaries.
- An individual who is competent should not be subject to the control of the courts through guardianship proceedings, temporary or plenary.
Jasser v. Saadeh, 97 So. 3d 241, 247-48 (Fla. 4th DCA 2012). Judge Warner therefore explained in Gort:
- In this case, the court permitted dismissal of the petition to determine incapacity of appellant pursuant to a settlement agreement signed by the appellant, even though he was found by the examining committee to lack the ability to contract.
- If the appellant was actually incompetent, then the settlement agreement would be invalid.
4th DCA March 2nd, 2016 Guardianship Ruling: Martinez v. Smith, 4D14-1436 (Fla. 4thDCA March 2, 2016)
- Meanwhile, on March 2, 2016, the Fourth District handed down its decision in Martinez v. Smith.
- Prior to any incapacity, in 2008, Mr. Smith fell in love with Ms. Martinez.
- He asked her to marry him prior to any incapacity.
- There is no evidence that it was anything but a loving and appropriate relationship.
- He named Ms. Martinez in his power of attorney and health care surrogate designation.
- Mr. Smith thereafter had a car accident which caused head trauma.
- The trial court found him to be unable to manage his property and to contract.
- However, there was no incapacity that warranted a guardian of a person, and the right to marry was not removed.
- The circuit court appointed a limited guardian of the property, noting: “if the right of the Ward to contract has been delegated to the Guardian but the right to marry is retained, then the right to marry is subject to Court approval.”
How Much Power Does a Florida Guardianship Court Have?
- Despite the language in the letters of guardianship requiring court approval, Mr. Smith purported to marry Ms. Martinez in 2010. They lived as husband and wife.
- By 2012, however, Mr. Smith’s abilities had deteriorated to the point that he could not verbally communicate.
- The guardian of the property and Ms. Martinez did not agree about where Mr. Smith should be placed.
- He was moved a few times.
- Ms. Martinez wanted to reside in a home together with Mr. Smith; the guardian wanted him in a nursing facility.
Palm Beach Guardian of Property Wants to Be Guardian of Person, Too
- The guardian petitioned to become plenary guardian of Mr. Smith in 2012.
- In these proceedings, the issue of Mr. Smith’s marriage to Ms. Martinez came up.
- It is clear from those proceedings that the original trial judge believed that the parties were married.
- However, the case was reassigned to another judge.
- When the guardian of the property was appointed ETG, the court also appointed an attorney for Mr. Smith.
- Mr. Smith’s court-appointed attorney (apparently without Mr. Smith’s own approval) filed a petition to annul Mr. Smith’s marriage.
- The guardian thereafter substituted as the petitioner, but retained the same lawyer.
- The trial court ruled on summary judgment that the marriage was “void” because the letters of guardianship did not permit Mr. Smith to marry without a court order.
- Ms. Martinez appealed. No brief was filed in response. A majority of a three-judge Fourth DCA affirmed, holding the marriage was “void.”
Evolving Guardianship Law in 4th DCA Florida
- Judge Martha Warner dissented.
- Judge Warner believed the marriage was not “void” but voidable.
- She reasoned that at the time that he married Ms. Martinez, the ward did not actually lack the legal capacity to marry (such as due to insanity or violation of bigamy laws).
- He did not ever have his legal right to marry removed by the court.
- The only thing preventing the marriage was the appointing judge’s language naming a limited guardian of the property.
- The letters of guardianship allowed the ward to marry, but required court approval.
- Therefore, Judge Warner reasoned, a judge could bless and ratify the marriage after the fact.
- Because there was no evidence that the relationship was anything other than bona fide and loving rather than exploitative or abusive, the marriage should have been ratified after the fact.
- Judge Warner also exposed other concerns.
- According to Judge Warner, there was no record evidence whatsoever that Mr. Smith himself approved of his lawyer’s or his guardian’s decision to seek counsel and have his marriage “annulled.”
- In addition, there was no judicial finding that a proceeding commenced to annul the marriage was in the ward’s best interest. By all appearances, it appears not to be in his best interest.
- As Judge Warner explained:
- “I think it is a travesty that this frail man has been deprived of his wife by judicial fiat where there is no intrinsic invalidity to the marriage itself.”
- “Clearly, the ward did not have independent counsel, nor did the court consider his best interests in annulling his marriage.”
- “[T]his frail gentleman has been deprived of his fundamental right to marry, in proceedings which violated his fundamental rights of due process and without a consideration of his best interest. I think this totally thwarts the Legislature’s express intent.”
Florida Guardianship Law Analysis
- In both Gort and Martinez, the majorities all seem to have missed the point.
- The purpose of guardianship proceedings is to safeguard the rights of truly incapacitated persons and the rights of allegedly incapacitated persons.
- Incapacitated persons should be protected from their invalid decisions; persons who have their rights should have them respected. In neither case did the courts do so.
- In Gort, a settlement was reached which may well have been in the best interest of the AIP.
- But we will never know whether it was because no judicial inquiry was made as that issue.
- Instead of allowing petitions to determine incapacity to be voluntarily dismissed, courts need to inquire and take evidence about the terms of proposed settlements of guardianship cases.
- If the AIP in Gort had capacity, then the trial court should have made an express, written finding that the AIP had capacity to settle and make the agreement.
- Alternatively, if the AIP needed assistance, the court should have named a limited or plenary guardian or imposed a lesser restrictive alternative to guardianship.
- It could have retained jurisdiction to enforce or modify the plan.
- It does not help anyone to dismiss the petition in favor of a risky agreement that is likely voidable due to the evident lack of capacity of one of the contracting parties, as the examining committee concluded in Gort.
- Similarly, in Martinez, the trial and appellate courts mechanically voided Mr. Smith’s marriage for technical reasons without any inquiry into whether it was in his best interest to do so.
- He was never deprived of the legal, constitutional right to marry by any court, and yet that is the effect of the courts’ decisions.
- All indications are that Mr. Smith wanted to be married to Ms. Martinez and benefited from the relationship.
- But nobody advocated for that position other than Ms. Martinez herself.
- No judge ever decided whether it was or was not in Mr. Smith’s best interest to remain married.
- Judge Warner believed that even Mr. Smith’s own court-appointed lawyer acted against his apparent interests by aligning with the guardian and causing the marriage to be annulled.
- We agree with the concerns articulated by Judge Warner.
- The paramount concern for the guardianship court should be the welfare of the ward.
- Those interests may not be articulated by the litigants who are actually before the court. Too often the participants in a guardianship are family members who are motivated by self-interest or animus, including the desire to inherit from a potentially incapacitated individual at the expense of a spouse or companion.