Romano v. Olshen

Romano v. Olshen, 153 So.2d 912 (2014), 2014 WL 940700

The Appellate Court described this case as one "at the intersection where guardianship law meets the law concerning forms of ownership of joint bank or brokerage accounts."  It involved the ability of a guardian of the property and the attorney for guardian to recover fees from an account owned by the ward and his wife as joint tenants with rights of survivorship.

The ward and his wife were at odds when he was declared incompetent, and their divorce proceedings were put on hold during the guardianship.  Eventually, the ward died while still married to his wife.  The main asset of the guardianship estate was an account titled in the names of the husband and the wife, as joint tenants with rights of survivorship.  Even though the guardianship court authorized the fees of the guardian and his attorney, other than the account held with the wife, the guardianship estate did not have enough liquid assets to pay those fees, and therefore the guardian and his attorney sought to recover their fees from the account held with the wife.  The wife argued that upon the ward's death, those assets became hers and therefore the guardianship court could not reach into that account.

The decision contains a lengthy discussion about the fact that guardianship proceedings are "equitable proceedings."  It held that as a court of equity, the guardianship court is "authorized to expansively construe Chapter 744 to protect the interests of a ward."

In determining that the account held by the husband and the wife was a tenancy by the entirety, the lower court had focused on the Beal Bank decision which creates a presumption that a bank account titled in the names of two spouses is held as tenants by the entireties.  This presumption would allow the wife to block access to the account, since F.S. 744.457(1)(a) provides that property owned as an estate by the entirety by an incapacitated and his or her spouse can only be sold, transferred, conveyed or mortgaged if the spouse joins in that transaction.  The Court expressed concerns that, "Without the application of some equitable principle that would override the language of the statute, an estranged spouse would be able to block payment of a ward's necessary expenses under section 744.457(1)(a)."  The Court did not have to apply a equitable principle, though, because it held that the Beal Bank presumption is limited only to proceedings relating to debtors and creditors, and is not applicable in a guardianship proceeding or in a lawsuit where the husband and wife are opposing parties.  Thus, the Court held that the account was a joint tenancy with right of survivorship, and therefore the trial court could authorize the guardian to pay its expenses from that account.  

Upon deciding that the account was a joint tenancy with right of survivorship, the Court disagreed with the wife that the guardian had no ability to reach into the account following the ward's death.  It noted that the guardian of the property of a ward continues to perform his services following the death of the ward during the winding up of the guardianship estate and therefore he was able to seek his fees and his attorney's fees from that account.   The Court further noted that since Chapter 744 should be construed to ensure compensation of guardians and guardian's attorneys, in order to encourage guardians to serve, it would be too risky to allow a ward's death to render a survivorship account inaccessible to a guardian of the property. 




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