In Florida guardianship is a way to protect a minor or other ward that may not be able to protect themselves. When a guardian is abusing their powers this poses a big problem after all who has the legal duty to oversee that? The answer would appear to be the probate court however you maybe surprised to the limitations placed on the Court in this regard. A recent Appeal Court decision in the Third District illustrates this point well.
- · A Miami probate judge was concered that the parents/guardians of a minor ward were using his guardianship funds to pay for his private school tuition.
- This is not allowed under Florida law which states in Fla. Stat. 744.397(3), “ [i]f the ward is a minor and the ward’s parents are able to care for him or her and to support, maintain, and educate him or her, the guardian of the minor shall not so use his or her ward’s property unless directed or authorized to do so by the court.
- The probate judge interviewed outside of the parties attention the principal of the child’s school and also audited several bank accounts.
- The appellate court found the probate judge’s conduct improper and disqualified the judge.
- The probate judge claimed that it was his job to protect the minor in the event the guardians were not following the court orders.
- The Appellate Court was not upset that the judge showed concern it was his indepedant or ex-parte investigation.
- Florida law is clear a judge cannot also be an investigator. Without such a rule there is a risk that a judge may not act impartially.
Guardianship proceedings, especially those involving minors can be especially challenging for all involved. As this case shows, this includes the judge.
Here’s the main problem: unlike most civil cases, in guardianship proceedings the judge plays a dual role: he or she serves both as neutral arbiter and as the person ultimately responsible for protecting the ward’s best interests. In Florida the power and responsibility of a court exercising guardianship jurisdiction over minors is such that the court itself is considered to be the minor’s guardian. See Brown v. Ripley,.
In fact the Courts have stated “the legal guardian of a minor is regarded as the agent of the court and of the state in the discharge of his duty as such.” Id. How trial judges balance their sometimes competing roles in guardianship proceedings is something that is still coming to be litigated to this day.