On Wednesday, November 4, 2015, in a detailed published opinion, the Fourth District held that the Public Guardian appointed by the Department of Elder Affairs cannot be forced to accept appointment as guardian in any particular case.
- The case arose when an existing charitable guardian sought an order allowing it to resign as guardian because it was having difficulty with the ward.
- The guardian sought an order appointing the 15th Judicial Circuit Public Guardian in its place.
- The trial court granted the motion and appointed the Public Guardian without notice to the Public Guardian.
- The Public Guardian sought rehearing.
- At the rehearing, the trial court ordered the Public Guardian to accept the appointment.
- In its opinion, the Fourth District held that Chapter 744 does not empower a trial judge to force the Public Guardian to accept the appointment as guardian.
- The appellate court noted that there is a statutory limitation on the number of wards that may be accepted in to the public program.
- As a result, not every candidate for public guardianship can or will be accepted. Instead, there is a wait list.
- The decision to accept a ward and serve as guardian is an executive branch function handled by the Department of Elder Affairs.
- Here, because no successor was immediately available, the incumbent charitable guardian was required to remain in place until a suitable successor can be appointed.
- The case is Legal Aid Society of Palm Beach County, Inc., Public Guardianship Program v. Ferd and Gladys Alpert Jewish Family & Children’s Service, No. 15-357 (Fla. 4th DCA Nov. 4, 2015).
- In the Fifteenth Judicial Circuit, the Legal Aid Society of Palm Beach County, Inc. serves as the Public Guardian.
Rob Hauser of the Pankauski Law Firm PLLC is pleased to have represented the Public Guardian on a pro bono basis and to have participated in this significant guardianship decision of first impression. Oral argument was held on October 6, 2015. The opinion can be found athttp://www.4dca.org/opinions/Nov.%202015/11-4-15/4D15-357.op.pdf. Mr. Hauser can be contacted at 561 514 0900 Ext. 102 or athauser@pankauskilawfirm.com.