By Jeffrey A. Eisel, Esq.
As of July 1, 2015, significant changes were made to Florida Statute Chapter 744 regarding guardianships. Many of the changes to the previous statute focus on professional guardians. One major change that will affect many, if not most, guardianship proceedings is the change to 709.2109, Florida Statute. This statute concerns the efficacy of a Power of Attorney during the pendency of the guardianship proceedings. Prior to the changes to the statute, a Power of Attorney was deemed suspended during the pendency of the guardianship proceedings.
The statute now reads as follows (emphasis added):
If any person initiates judicial proceedings to determine the principal’s incapacity or for the appointment of a guardian advocate, the authority granted under the power of attorney is suspended until the petition is dismissed or withdrawn or the court enters an order authorizing the agent to exercise one or more powers granted under the power of attorney. However, if the agent named in the power of attorney is the principal’s parent, spouse, child, or grandchild, the authority under the power of attorney is not suspended unless a verified motion in accordance with 744.3203, Fla. Stat. is also filed.
744.3203 states as follows:
1) At any time during proceedings to determine incapacity but before the entry of an order determining incapacity, the authority granted under an alleged incapacitated person’s power of attorney to a parent, spouse, child, or grandchild is suspended when the petitioner files a motion stating that a specific power of attorney should be suspended for any of the following grounds:
(a) The agent’s decisions are not in accord with the alleged incapacitated person’s known desires.
(b) The power of attorney is invalid.
(c) The agent has failed to discharge his or her duties or incapacity or illness renders the agent incapable of discharging duties.
(d) The agent has abused powers.
(e) There is a danger that the property of the alleged incapacitated person may be wasted, misappropriated, or lost unless the authority under the power of attorney is suspended.
Grounds for suspending a power of attorney do not include the existence of a dispute between the agent and the petitioner which is more appropriate for resolution in some other forum or a legal proceeding other than a guardianship proceeding.
This is an added step which now must be addressed in many contested guardianship actions where family members are the ones who may be abusing powers purportedly granted to them by the alleged incapacitated person.
The statute further addresses the requirements for such a pleading.
2) The motion must:
(a) Identify one or more of the grounds in subsection (1);
(b) Include specific statements of fact showing that grounds exist to justify the relief sought; and
(c) Include the following statement: “Under penalties of perjury, I declare that I have read the foregoing motion and that the facts stated in it are true to the best of my knowledge and belief,” followed by the signature of the petitioner.
(3) Upon the filing of a response to the motion by the agent under the power of attorney, the court shall schedule the motion for an expedited hearing. Unless an emergency arises and the agent’s response sets forth the nature of the emergency, the property or matter involved, and the power to be exercised by the agent, notice must be given to all interested persons, the alleged incapacitated person, and the alleged incapacitated person’s attorney. The court order following the hearing must set forth what powers the agent is permitted to exercise, if any, pending the outcome of the petition to determine incapacity.
(4) In addition to any other remedy authorized by law, a court may award reasonable attorney fees and costs to an agent who successfully challenges the suspension of the power of attorney if the petitioner’s motion was made in bad faith.
These changes to the Guardianship Code make it imperative to address the issues of Powers of Attorney naming family members, as contemplated in 709.2109, Florida Statute, to ensure the protection of the alleged incapacitated person and their possessions.
For more information about guardianships, call Baskin Fleece at (727) 572-4545.
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