Ethical and Practical 
Realities of Guardianships


Michelle Garcia Gilbert, Esquire,
mgilbert@gilbertgrouplaw.com

Florida Guardianship Laws:
less restrictive alternative

• Power of Attorney
• Health Care Surrogate
• Living Will
• Trusts- special needs
• Guardianship
• Guardian Advocacy

Florida Guardianship Laws:
 Guardian Advocacy

• Children, developmental disabilities, over age 18, adults under the law
• Florida Statutes Chapter 393, Developmental Disabilities, since 2004
  • Section 393.063(11):
  • “Developmental disability” means a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.
  • Chapter 744: Guardianship laws, also apply to guardian advocate process,
  • Lacks decision making ability to do some, but not all, of decision making tasks necessary to care for his or her person or property
  • Relies on doctor or other professional statement about disability

Florida Guardianship Laws:
Guardianship

• “Incapacitated Person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.
• Dementia, Alzheimers, and other health problems affecting their ability to understand and take care of themselves.
• Chapter 744: Guardianship laws
• 3 person examining committee appointed to examine the alleged incapacitated person and file reports
• Adjudicatory hearing, judge enters order adjudicating incapacity and appointing guardian
• Emergency Temporary Guardian can be appointed shortly after filing with a hearing

Florida Court Process: Guardianship and Guardian Advocacy

• Application for Proposed Guardian/Guardian Advocate
  • Education, Employment, Criminal and Credit background, Personal References
  • Information about family member
  • Indigency application
• Petitions to Determine Incapacity and for Appointment of Guardian/Guardian Advocate, over person or property or both
• Oath of Guardian/Guardian Advocate, Designation and Acceptance of Resident Agent
• Person appointed counsel
• Annual Reports
• Restoration of rights process

Florida Guardianship Laws:
Minors

• Florida Statute §744.387- Settlement of claims- amounts over $15,000 require appointment of guardian and annual reporting, usually parent appointed
• Florida Statute §744.3021- Guardianship of minor can occur if natural parents shown to be unfit, incapacity or disability not required
• Florida Statute, Chapter 751- Temporary Custody of a Minor Children by Extended Family- 2010

Guardianships Across State Lines

• Florida: alleged incapacitated person (AIP), developmentally disabled person (DDP), emergency temporary guardian (ETG), ward, guardian
• Other states: conservator, protected person
• State laws vary: state to state transfer of guardianship cases once complex
• Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA)- enacted 2007, simplify process of moving guardianship between states, 45 states, Puerto Rico and Washington, DC have enacted
• Florida has not passed, but is considering; Texas, Kansas and Michigan have not passed
• https://www.uniformlaws.org/committees/community-home?communitykey=0f25ccb8-43ce-4df5-a856-e6585698197a#LegBillTrackingAnchor

Guardianships across state lines

• Transfer begins by filing of petition with notice and hearing if requested or required by accepting court
• Provisional order transferring is entered, transferring court does not close or dismiss case until order is entered
• Accepting court must within 90 days of order determine whether guardianship or conservatorship needs to be modified
• Issues: timing of cases so parties know which court has jurisdiction, reproving case in second state
• Requires court accepting case to recognize determination of incapacitated or protected person’s incapacity
• https://brycs.org/guardianship-information-by-state/

Guardianships across state lines

• Jurisdictional and venue issues
• What court has or should have jurisdiction often is unclear due to absence of statutory guidance on jurisdictional issues
• Only few states have statutes to determine initial, recognition or transfer jurisdictional questions, and none have all 3; Kansas most innovative and comprehensive, Kan. Prob. Code § 59-3058
• Venue: depending on state, may be where AIP is domiciled or resides or is present or is found or institutionalized or has been admitted to a healthcare or correctional facility or owns property
• Intrastate venue laws help in 25 states
• Interstate Jurisdiction: only 6 states explicitly address, address by UGPPA

Guardianships across state lines

• National Probate Court Standards: race to courthouse venue rules intrastate, best suited jurisdiction standards for interstate petitions
• Best suited: ward’s location; asset location; existing , pending or previous guardianships, and existing alternative surrogate arrangements
• Notice and communication key components, including interstate data sharing
• See, generally, https://www2.stetson.edu/law-review/article/crossing-state-lines-issues-and-solutions-in-interstate-guardianships/

Guardianship across state lines: ethical concerns

• Estimated 1.3 million active adult guardianship/conservatorship cases worth at least $50 billion overseen by court system
• Rarely overturned
• Examinations vary: not all require detailed, individualized examinations
• See, https://www.emich.edu/cob/documents/kelly_2021_234.pdf, for state by state standards, table 1
• Due process deficiencies: lack of qualified, independent legal representation
• Standards of proof vary among states:
  • Beyond reasonable doubt: New Hampshire
  • By clear and convincing evidence: most common
  • By a preponderance of the evidence: lowest standard
• Legal decision-making standard for guardians
• Guardian is fiduciary and owes fiduciary duties to ward/protected person
• 5 distinct categories:
  • 6 states (12 percent) use the least restrictive model,
  • 7 states (14 percent) use the maximum self-reliance model,
  • 13 states (26 percent) use the best interest model,
  • 15 states (30 percent) use the substitute judgment model,
  • 9 states (18 percent) hybrid or no detailed standard
• Florida: best interest and substituted judgment hybrid
• Fla. Stat. 744.361, “Powers and Duties of Guardian,” includes both standards. Subsection (4) states “a guardian may not act in a manner that is contrary to the ward’s best interests under the circumstances.” Subsection 13(a) requires a guardian to “consider the expressed desires of the ward as known by the guardian when making decisions that affect the ward.”
• 2017, Rule 58M-2.009 Standards of Practice by the Department of Elder Affairs, Office of the Public and Professional Guardians (OPPG) adopted substituted judgment
• See, generally, https://www.floridabar.org/the-florida-bar-journal/is-my-judgment-in-your-best-interest-how-decisions-are-made-in-guardianships-and-a-suggested-reform/

Ethical Considerations in Guardianships

• FRPC 4-1.1- must be familiar with guardianship statutes, rules and other laws for competent representation for guardian and ward
• Applicable Florida and Federal Statutes and Rule:
  • Chapter 744, Guardianship Code
  • Chapter 731, Probate Code
  • Chapter 736, Trust Code
  • Chapter 709, Power of Attorney
  • Chapter 765, Health Care Advanced Directives
  • Florida Probate Rules
  • Rules Regulating Florida Bar
  • Florida Administrative Code, Section 58M-2
  • HIPPA
• Conflicts of interest: small circle of guardians and guardianship attorneys
• Who is your client?
  • Guardian
  • Possibly ward: Saddeh v. Connors, 166 So. 3d 959 (Fla. 4th DCA 2015)- ward was intended third party beneficiary of attorney’s services to emergency guardian and therefore owed ward duty of care
  • Interested parties:
    • Florida Statutes § 731.201(23) (Probate) defines an interested person as:…any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved…The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.
    • Guardian required to notice interested parties, including medical and financial information, depending upon context

Ethical Considerations in Guardianships:
Florida Bar Rule of Professional Conduct,
Rule 4-1.14- Client with Diminished Capacity


• (a) Maintenance of Normal Relationship. When a client’s capacity to make adequately considered decisions in connection with the representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer must maintain a normal client-lawyer relationship with the client as much as reasonably possible.
• (b) Protective Action. A lawyer is not required to seek a determination of incapacity or the appointment of a guardian or take other protective action with respect to a client. However, when the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, such as, consulting with individuals or entities that have the ability to act to protect the client and, in appropriate cases, seek the appointment of a guardian ad litem or guardian.
• Rule 4-1.14 – CLIENT WITH DIMINISHED CAPACITY
• (b) Protective Action. Cont. A lawyer must make reasonable efforts to exhaust all other available remedies to protect the client before seeking removal of any of the client’s rights or the appointment of a guardian.
• (c) Confidentiality. Information relating to the representation of a client with diminished capacity is protected by the rule on confidentiality of information. When taking protective action under this rule, the lawyer is impliedly authorized under the rule on confidentiality of information to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
• Eff. 5/2/2022
• Comments- See, pages 100- 104, https://www-media.floridabar.org/uploads/2024/05/Chapter-4-RRTFB-5-10-24.pdf,
• Rule in line with ABA Model Rule 4.14
• Number of Floridians 65 or older to grow by 1.4 million between 2020- 2045, from 20% of population to 25%, according to
• Florida Tax Watch study
• Florida Statutes Section § 744.102: Attorney for the ‘alleged incapacitated person’ means an attorney who represents the alleged incapacitated person. The attorney shall represent the expressed wishes of the alleged incapacitated person to the extent it is consistent with the rules regulating The Florida Bar. [Emphasis supplied].
• Erlandson v. Erlandson, 296 So. 3d 431, (Fla. 4th DCA 2020)- AIP told court appointed attorney that she wanted to contest proceedings, but attorney, acting in what she believed was client’s best interest, agreed to plenary guardianship; Court reversed, held that FBRPC does not apply in contested case.

Ethical Considerations in Guardianships

• Florida Bar ethics Opinion 21-3 (March 23, 2021)
• Question: A member of The Florida Bar inquired about their ethical obligation when appointed by a court to represent the alleged incapacitated person (“AIP”) in a petition for emergency temporary guardianship when that proceeding is held ex parte on a showing that it is necessary to prevent substantial harm to the AIP. See Fla. Stat. § 744.3031(2).
• Florida Bar ethics Opinion 21-3 (March 23, 2021)
• Opinion: A court appointed attorney has an obligation, pursuant to Florida Statutes Section 744.102, to represent the expressed wishes of an AIP. All lawyers owe all clients the duty to communicate (Rule 4-1.4) and the duty to abide by a client’s decisions regarding the objectives of representation (Rule 4-1.2). Even when a client has diminished capacity, the lawyer must treat the client the same as other clients as much as possible (Rule 4-1.14).
• …if the [attorney] lacks time to communicate with the client because the hearing is scheduled to be held shortly after the appointment, the [attorney] should seek a continuance under appropriate circumstances to allow the [attorney] to communicate with the client and ascertain the client’s wishes.
• Florida Bar ethics Opinion 21-3 (March 23, 2021)
• Opinion, continued: However, even if the continuance is denied, or the court orders an ex parte hearing, the attorney may
  • …nevertheless represent the client although the [attorney] is unable to communicate with the client. The [attorney], as reasonably practicable under the circumstances, must investigate the factual background leading to the guardianship as well as what evidence may be relevant to the proceedings.
• See Fla. Bar R. 4-1.4 (“In some situations – depending both on the important of the action under consideration and the feasibility of consulting with the client – this duty will require consultation prior to taking action. In other circumstances, such as during trial when an immediate decision must be made, the exigency of the situation may require a lawyer to act without prior consultation.”).
• Supported Decision-Making: alternative to guardianship for adults with disabilities to make decisions with support of trusted people through use of detailed agreement
• See, generally, http://flfcic.fmhi.usf.edu/docs/FAQ%20about%20SDM.pdf, 18 states and Washington, DC have enacted laws recognizing supportive decision-making agreements
• Florida SDM law effective 7/1/2024, within Florida Statute §393.12, Capacity, appointment of guardian advocacy, and then created §709.2209, Supported decisionmaking agreements.
  • Also, amended §744.3201, Petition to determine incapacity, §744.331, Procedures to determine incapacity, §744.464, Restoration to capacity, and §1003.5716, Transition to postsecondary education and career opportunities

Michelle Garcia Gilbert, Esquire
Gilbert Garcia Group, P.A.
2313 W. Violet St.
Tampa, Fl. 33603
Phone: (813) 443-5087
Fax: (813) 443-5089
www.gilbertgrouplaw.com
mgilbert@gilbertgrouplaw.com