Martinez v. Guardianship of Smith, --- So.3d --- (Fla. 4th DCA 2015), 2015 WL 1238445
In this case, a wife appealed the order appointing a professional guardian for her husband, since the trial court failed to apply the statutory presumption of F.S. 744.3045 where her husband had given her power of attorney and appointed her as his preneed guardian and health care surrogate. The Court held that because the trial court failed to make a specific finding that the appointment of the wife was contrary to the best interests of the ward, the order appointing professional guardian was reversed.
In its decision, the Court detailed the various ways the professional guardian and the wife were at odds about the ward's care. Particularly, their disputes centered around the ward's residence and the fact that he had been moved from institution to institution. The Court ultimately held that the wife's conflicts with the institutions and her difficultly communicating with the staff was not enough to overcome the statutory presumption of F.S. 744.3045 nor her appointment as her husband's health care surrogate pursuant to chapter 765.
F.S. 744.3045 allows an individual to make a written declaration naming a guardian to serve in the event of that person's incapacity. A court is not bound to appoint the preneed guardian if the guardian is found to be unqualified to serve as guardian (F.S. 744.3045(4)), or if the court determines that appointing that person is contrary to the best interests of the ward (F.S.744.312(4)). Since here, the wife was qualified to serve, the only way for the court to ignore the designation of preneed guardian would be for the court to make a specific finding that the specific actions/inactions of the designee were sufficiently egregious as to be contrary to the best interests of the ward. Citing the Koshenina v. Buvens decision, the Court explained that the fact that another relative might be a better caregiver is not enough, nor is a finding that a designated preneed guardian is lacking in interpersonal and social skills enough to justify a trial court's failure to appoint that person. The Court held that the mere existence of the wife's conflict with the staff of the nursing facility was not enough to show that her appointment would be contrary to the best interests of the ward.
Similarly, the Court held that the trial court failed to make sufficient findings of facts to overcome the ward's designation of health care surrogate pursuant to chapter 765. The court may revoke the authority of the surrogate if the surrogate or proxy has abused its powers. F.S. 765.105(5). The Court acknowledged that Florida law provides us with little guidance about what constitutes a proxy's abuse of power, but looked at the designation document itself, which granted the wife the authority to determine her husband's residence, and found that the fact that she had moved her husband several times and does not communicate well with the present facility's staff was not enough to show that she "abused powers" nor that she acted contrary to the ward's best interest.