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Published: 2008-03-26

Termination of Florida Guardianships



Under Florida law, there are six primary reasons for terminating a guardianship:

  1. Restoration of the Ward's capacity;
  2. Change of domicile of the Ward to another state;
  3. Resignation or Removal
  4. Death of the Ward;
  5. Lawful exhaustion of guardianship assets (guardian of property only) and;
  6. Guardian's inability to locate the Ward through a diligent search.
Most guardians are very familiar with the procedures necessary to create a guardianship, however, more than a few guardians could use a refresher as to the procedures to terminate a guardianship.

  1. RESTORATION OF THE WARD'S CAPACITY


  2. A person who has been determined to be incapacitated retains the right to be restored to capacity at the earliest possible time. [F.S.§744.3215(c)].

    The procedure to seek possible restoration of some, or all of the ward's rights, is begun through the filing with the court of a suggestion of capacity.

    1. Suggestion of Capacity (F.S.§744.464):

    2. A suggestion of capacity must state that the ward is currently capable of exercising some or all of the rights which were previously removed by the court, and may be filed by any interested person, including either the guardian or the ward. The annual guardianship plan or physician's statement may be considered as a suggestion of capacity if either recommends the restoration of any rights which were removed from the ward. A suggestion of capacity may not be filed within ninety (90) days of an adjudication of incapacity, or denial of restoration.

    3. Appointment of Physician:

    4. Once filed with the court, the court will appoint a physician (one) whose duty it is to examine the ward and file a written report of said examination with the court within twenty (20) days of his appointment.

    5. Notice:

    6. Once filed with the court, the court shall send a notice of the filing of a suggestion of capacity, and of the appointment of a physician to the ward, the guardian, the attorney for the ward, the state attorney, and other interested persons. Any objections to the suggestion of capacity must be filed with the court within twenty (20) days of the service of the notice.

    7. Report of Physician:

      1. Recommends full restoration/no objections filed - The court may enter an order granting full restoration without hearing.

      2. Recommends full restoration/objections are filed - The court must set the matter for hearing and appoint an attorney to represent the ward, unless the ward already has an attorney.

      3. Recommends partial restoration or no restoration/ regardless of objections - The court must set the matter for hearing and appoint an attorney to represent the ward, unless the ward already has an attorney.

    8. Hearing:
    9. The burden is upon the ward, or other interested person who filed the suggestion of capacity, to prove by a preponderance of the evidence (51%) that the ward is now capable of exercising a right or rights previously removed by the court.

    10. New Guardianship Plan:

    11. If only some of the ward's rights are restored, the guardian must file a new guardianship plan with the court addressing the rights retained by the guardian, within sixty (60) days of the entry of the order of partial restoration.

    12. Full Restoration:
      1. Prepare and file the Final Accounting (see VI below) [escrow final guardian's and attorney's fees and costs], and petition for discharge. F.S.§744.527(1) states that..."the guardian shall promptly file his final report." This may be interpreted as within a "reasonable time" which changes from case to case. A safe rule is to complete and file the final accounting within thirty (30) days of the ward's restoration.
      2. Prepare and file final petitions for orders authorizing payment of guardian's fees and costs, and attorney's fees and costs (see VII below).
      3. Transfer assets-signed receipt of ward. The ward may waive the final accounting and any hearings on the accounting or discharge of the guardian.


  3. CHANGE OF DOMICILE OF THE WARD TO ANOTHER STATE


  4. F.S.§744.2025 requires court authorization to change the domicile of the ward from one county to another within the state of Florida or from the state of Florida to another state.

    If after obtaining court authorization, the guardian changes the Ward's domicile from one county to another within the State of Florida the guardianship is not "terminated". The guardian need only apply to the court to change the venue of the guardianship (and transfer the guardianship file) to the court having jurisdiction of the county of the Ward's new residence.

    When the domicile of a ward has been changed to another state by the guardian, after obtaining court authorization, the following procedures must be followed to terminate the Florida guardianship and obtain a discharge of liability as guardian: (See F.S.§744.524)

    1. File in the Florida court proof that the foreign court having jurisdiction over the ward has appointed a guardian and that said guardian has qualified and posted a bond in the amount required by the foreign court.
      -Exemplified copies (triple sealed) of the order appointing guardian, and bond, from the foreign court.
    2. Prepare and file the final accounting (see VI below) [escrow final guardian's and attorney's fees and costs], and petition for discharge.
    3. Prepare and file final petitions for orders authorizing payment of guardian's fees and costs, and attorney's fees and costs (see VII below).
    4. Publish a notice in a newspaper of general circulation in the county, once a week for two consecutive weeks, that the guardian has filed the final accounting with the court and will apply for discharge "on a day certain" and that the jurisdiction of the ward will be transferred to the foreign court.
      -File Proof of Publication, usually an affidavit from the newspaper, with the court.
    5. Transfer assets - once the court has conducted a hearing disposing of any objection to the termination of the Florida guardianship, or if there are no objections, the guardian may transfer the guardianship assets to the foreign guardian.
      -Transfer of "in kind" assets (witnesses, shippers, insurance, appraisals, etc.).
      -Signed Receipt of Assets by foreign guardian.

  5. RESIGNATION OF GUARDIAN AND SUCCESSOR GUARDIAN PROCEDURES


    1. Why is the current guardian resigning?
      1. Removal - reasons for (see FS §744.474)
      2. Forced resignation, rather than removal?
      3. Bad case?
      4. Guardian resigning from all cases?
      5. Other reason?

    2. How to decide whether or not to take the case.

      1. Obtain as much information as possible:
        1. Contact current guardian, attorney of record, nursing home employees, social services, and family, etc.
        2. Review court file.
        3. Meet the ward.
      Know all of the facts concerning the case - do not rely solely upon statements made by the current guardian!

    3. Procedures to appoint a successor guardian.

      1. Resignation of the current guardian is filed.

        1. Order accepting resignation.
      2. Petition for appointment of successor guardian, application for appointment of guardian, oath and notice of hearing filed with the court by the successor guardian.
        1. Why preference in appointment?
      3. Hearing to appoint successor guardian.

    4. Attorney of Record - Potential conflict of interest when the same attorney represents both current guardian and the successor guardian.

      1. Duty of loyalty.
      2. Effect of conflict of interest.

    5. Final Accounting of current guardian, asset transfer, records and information exchange.
      1. Final Accounting - no audit fee, balance shown transferred to successor guardian.
      2. Asset transfer - do the assets match the final accounting? Be thorough! BRING A WITNESS.
      3. Receipt of successor guardian and consent to discharge of current guardian.
      4. Records - every guardian must keep their records at least three years after their discharge as guardian.
      5. Duties and responsibilities of both guardians until current guardian is discharged.

    6. Initial and Annual Guardianship Reports

      1. Initial guardianship report - Inventory and guardianship plan due within 60 days of appointment.
      2. Annual guardianship report - due within 90 days of the end of the anniversary month of the appointment as successor guardian.

    7. Practical Considerations

      1. Change of Address card.
      2. Contact bank - retitle account, remove current guardian's name.
      3. Change representative payee.
      4. Contact physician(s).
      5. Contact nursing home.

  6. DEATH OF THE WARD


  7. The guardian's authority and responsibilities end when the ward dies, right? This misconception can lead to many problems for the unwary. The guardian is not released from liability until the order of discharge has been entered by the court. (F.S.§744.531).

    The guardian must continue to protect, preserve, insure and invest the guardianship assets until distributed to the ward's estate or the persons entitled to it. In some cases, it may take several months before a Personal Representative is appointed for the ward's estate and the guardianship assets cannot be transferred until that time. In such cases it is essential that the guardian continue to prudently manage the guardianship assets. In fact the failure to do so may result in a surcharge action against the guardian.

    The guardian may exercise any authority which is approved by the court. In other words, the guardian's duties and responsibilities upon the ward's death are the same, however, any action on the part of the guardian should be authorized by court order before the action is taken.

    Typically, after the ward's death the guardian may be called upon to perform the following duties:

    • Authorize and pay for funeral/burial/cremation expenses up to $6,000.00;
    • Emergency repairs to real property (to prevent damage);
    • Pay final costs of administration of the guardianship, including guardian's and attorney's fees;
    • Transfer and delivery of guardianship assets to the persons entitled.

    General Rule: If the guardian needs to take an action after the ward's death, a court order is needed.

    Procedures to discharge guardian of the person only:
    File a suggestion of death; certified copy of death certificate in short form (without cause of death). (F.S.§744.521).

    Procedures to discharge guardian of the person and property:
    1. Prepare and file the Final Accounting (see VI below) [escrow final guardian's and attorney's fees and costs] and petition for discharge. F.S.§744.527(1) states that ..."the guardian shall promptly file his final report". This may be interpreted as within a "reasonable time", which changes from case to case. A safe rule is to complete and file the final accounting within thirty (30) days of the ward's death.
    2. Prepare and file final petitions for orders authorizing payment of guardian's fees and costs, and attorney's fees and costs (see VII below).
    3. File a suggestion of death; certified copy of death certificate in short form (without cause of death).
    4. Transfer assets to the ward's estate after appointment of a Personal Representative; file a Receipt of Assets signed by the Personal Representative. OR
    5. Deposit remaining assets with the Registry of Court (see disposition of unclaimed funds VIII below).

  8. EXHAUSTION OF ASSETS

    1. Advantages:

    2. Once your ward's assets have been exhausted, your responsibility as guardian has not been relieved. The court still requires the filing of annual financial reports, auditing fees and a bond, which results in annual renewal premiums. One way to avoid these items and to make your job as guardian much easier, is to seek discharge of the right to manage property.

      In order for you to be discharged of the right to manage property you must prepare and file a final accounting showing that all of the ward's assets have been lawfully exhausted. Sometimes it is necessary to turn over the balance of the guardianship account to the facility at which the ward is located for use in the patient's trust account. If this is done, it is necessary to obtain a receipt from the facility and file it with the court. It is also necessary to file a petition for discharge of the right to manage property, an award letter designating someone other than yourself as representative payee (usually the facility) of the ward's income, and an acknowledgement that said person or facility has agreed to accept designation as payee of the ward's benefits.

      Once the court has received the above documents and is satisfied that the ward's best interests will not be placed in jeopardy, it will enter an Amended Order Appointing Guardian and Amended Letters of Guardianship, which should be prepared and submitted by your attorney. A copy of the Amended Order Appointing Guardian should be forwarded to the surety on your bond along with a letter requesting that the bond be canceled.

      Please contact your attorney should you wish to seek discharge of the right to manage your ward's assets once they have been lawfully exhausted. Additional documentation may be required depending on the particular circumstances of the case.

    3. Procedures:

      1. Prepare and file the Final Accounting (see VI below) [escrow final guardian's and attorney's fees and costs], and petition for discharge of the right to manage property.
      2. Prepare and file final petitions for orders authorizing payment of guardian's fees and costs, and attorney's fees and costs (see VII below).
      3. File award letters designating someone other than guardian as representative payee for the ward's income, and the acknowledgment signed by said person agreeing to accept such designation.

  9. FINAL ACCOUNTING PROCEDURES


  10. The two primary goals of a final accounting in a guardianship are:

    1. To provide a complete report of financial activities in the guardianship since the last accounting, or since the inventory, if no accountings have been filed.
    2. To show the distribution of the remaining guardianship assets to the persons entitled to said assets.

      The form for the final accounting is the same form as the annual accounting. The guardian should attempt to "zero out" the accounting so that Schedule D "Assets on Hand" reflects that no assets remain in the guardian's possession. An audit fee is not required to be filed with a final accounting.

      When filing a final accounting is not necessary to prepare or file a final guardianship plan.

      Copies of financial statements must be filed with a final accounting, just as is required to be filed with annual accountings.

      Since a guardian may not pay final guardian's and attorney's fees and costs until approved by the court, and realizing that it typically takes approximately thirty (30) days from the date of filing a fee petition with the court for a guardian to receive an order, it is recommended that the guardian "escrow" the amounts requested in the final guardian and attorney fee petitions in their attorney's trust account and list said amounts as disbursements on the final accounting as being escrowed in attorney's trust account for final guardian's and attorney's fees and costs pending court approval. This will permit you to "zero out" your final accounting, and once the court has entered the fee orders said amounts may be dispersed from the attorney's trust account.

      Since a guardian of the property may not be discharged until the court has received and approved the final accounting, it is essential that the guardian complete and file the final accounting as soon as possible.

  11. FINAL FEE PETITIONS

  12. If we stick to the misconception that the guardian's authority ends at the time of the ward's death, then neither guardians nor their attorneys would be able to receive payment of their fees and costs which accrued since their previous fee requests. Fortunately Florida law has specifically addressed this issue in F.S.§744.527(2):

    "The guardian applying for discharge is authorized to retain from the funds in his possession a sufficient amount to pay the final costs of administration, including guardian's and attorney's fees regardless of the death of the ward, accruing between the filing of his final returns and the order of discharge."
    It is important to note that this statute only authorizes the guardian to "retain" the amount of those final fees and costs. It does not authorize the payment of those fees and costs to the guardian and attorney, unless said payments have been approved by court order.

    As discussed in "VI Final Accounting Procedures" above, it is essential that the guardian complete and file the final accounting as soon as possible. It is therefore necessary to complete both the guardian's and attorney's final fee petitions, to determine the amount of guardianship funds to "retain" and to list said amounts on the final accounting. Invariably this requires an estimation of the final time needed to close the guardianship (i.e. appointment with attorney to review final fee petitions, final accounting, travel to banks to close accounts, meetings with person entitled to receive assets, physical delivery of assets, etc.)

    Question: How much time should be estimated?
    Answer: The amount of time which will be reasonably necessary to perform the services needed to complete administration of the guardianship. There are no published guidelines as to how much time is reasonable for each particular service.

    Once a guardian has listed the amount of final guardian's and attorney's fee and costs in the final accounting as "retained", filed petitions for said fees and costs, and received orders authorizing the payment of said amounts, he or she should be able to receive payment - maybe!

    Typically, banks will put a hold on an account once they have been advised that the ward has died, even to the exclusion of the guardian. Therefore, if the bank has been so notified, and the guardian writes a check to pay the final fees and costs as authorized by the court, the bank will most likely dishonor the check. At this point, the guardian's only recourse is to obtain another court order directing the bank to release said funds.

    One method of avoiding this problem is to escrow the amount of final guardian's and attorney's fees and costs into the attorney's trust account as soon as possible, and not to notify the bank of the ward's death before doing so. This will eliminate the need of obtaining another court order to pay fees, after approval of said amount by the court.

    However, if the amount of the final fees approved by the court is less than the amount requested and escrowed, it will be necessary to prepare and file an addendum to the final accounting correcting the amounts paid as final fees, as well as the amounts transferred to the person entitled to the guardianship assets.

    Final guardian and attorney fee petitions are exceptions to the rules that a guardian may not file a petition for fees and costs for a period less than six months, and an attorney may not file a petition for fees and costs for a period less than twelve months. However, unless it is noted in the petitions as to why the fee period is less (i.e. death of ward, exhaustion of assets, transfer of file to another county or state, restoration, resignation, etc.) then the court may return the petitions without consideration.

  13. DISPOSITION OF FUNDS


  14. When terminating a guardianship of the property, the court will require proof that the guardian has made complete distribution to the "person entitled" before discharging the guardian. (see F.S.§744.527)

    Who is the person entitled? If the guardian is seeking discharge due to:

    1. Change of Domicile of the Ward - Assets are to be distributed to the foreign guardian (after their appointment);
    2. Restoration - Assets are to be distributed to the ward;
    3. Death of the Ward - To the Personal Representative of the ward's estate (after their appointment) or deposited with the Clerk of Circuit Court, Registry of Court. (See unclaimed funds below.)
    4. Exhaustion of Assets - Remaining assets, if any, should be deposited into the ward's patient trust account.
    5. Guardian's inability to locate the ward through a diligent search - Deposit with the Clerk of the Circuit Court, Registry of Court. (See unclaimed funds below.)

    What proof of distribution is required? A signed receipt from the person entitled to the assets.

    Without a signed receipt, guardians may find themselves in the difficult position of proving the distribution of the assets. This is not difficult with cash assets for which there will be a check. However, it is very difficult when you are trying to prove the distribution of jewelry, real property, stock certificates, or other "in kind" assets. About the only method of proving distribution of said assets, absent a signed receipt, is through the testimony of the guardian and of other witnesses. If the court is satisfied with such testimony it may discharge the guardian.

    How do you distribute unclaimed funds? - Guardianship assets which cannot be distributed due to the lack of a "person entitled". When such a situation exists the guardian should petition the court for the authority to sell the guardianship property and distribute the proceeds with the Clerk of Court to be held in the registry of the court. Once the order has been entered, the assets sold, and the proceeds, in the form of a cashier's check payable to the Clerk of the Circuit Court, deposited with the Clerk of Court, the Clerk of Court completes a "receipt" for said funds and forwards it to the guardian. This receipt may be filed with the court as proof of distribution of the guardianship assets and will permit the discharge of the guardian. (See F.S.§744.534)

    CONCLUSION: The above procedures are intended to assist a guardian in filing all of the necessary documentation to receive his or her discharge. As discussed previously, the guardian's authority and liability do not end until the court enters an order of discharge relieving both the guardian and the surety in the guardian's bond from further liability. Florida law states, "The discharge shall operate as a release from the duties of the guardianship and as a bar to any action against the guardian or his surety unless the action is commenced within three (3) years after the date of the order." (F.S.§744.531)