Guardian Fees in Florida

Where do you pay guardian fees from? What if there’s not enough money ?? An August 17, 2022 opinion reveals that an emergency temporary guardian may not use the Ward’s IRA to pay her fees and compensation. We have previously written about Florida Guardian Compensation before. Now, let’s consider the legal “tension” between two statutes.

Guardian Compensation

First of all, if you want to read about Florida guardianships, read the Florida Guardianship Code. Chapter 744 Florida Statutes.

You can also read the Florida Probate Rules, which has rules for guardianships. They start at Part III, with Fla. Prob. R. 5.540.

There are a number of cases about compensation and fees for THE LAWYER of a Florida Guardian.

And there are different cases and opinions for Guardians (e.g. limited or plenary) vs. Emergency Temporary Guardians.

For the statute of guardian fees, check out 744.108.

But, what if the ward dies ? How does the guardian get paid?

ETG Can’t Get to Ward’s IRAs if Family Fights

The 1st District Court of Appeal issued an opinion on August 17, 2022.

This opinion dealt with guardian fees.

Specifically, whether the guardian could get paid from the Ward’s IRAs.

No!

(Absent family members permitting that. Or, I should say, absent the IRA beneficiary agreeing to that).

You can read this Florida Emergency Temporary Guardian case. The name is Araguel v. Bryan.

Family members wanted to get a guardianship over mom.

The court did not appoint a family member.

The probate court appointed a professional as Emergency Temporary Guardian.

Mom died.

When the guardian wanted to get paid from mom’s IRA, a son objected.

The 1st DCA (appeals court) said that a special IRA-protection law prohibited the guardian from getting paid from the IRA. That law is 222.21. The IRA passed to the named beneficiary.

The guardian argued that 744.527 applied. But, the IRA was not in the possession of the ETG.

So, what could have the guardian done? Well, cut a deal at the outset — when she was appointed ETG. She could have taken steps to secure her compensation. She could first give notice to everyone and secure or get a lien on the Ward’s assets to get paid. Or, put another way, the ETG or guardian can ask the Court where she will get paid from. If you want to get paid from a particular asset, give certain family members or beneficiaries notice.

Now what?

Well, if the guardianship estate won’t pay the guardian, she has to open a probate and file a statement of claim as a creditor. And that means even more fees from the estate, and , presumably, the family. IF there are assets in the estate.

But, isn’t there a 4th DCA case that says the guardian gets paid, in the guardianship proceeding, from will substitutes?? What about Romano v. Olshen?