Howard v. Howard

Howard v. Howard, --- So.3d --- (Fla. 4th DCA 2016)

While most practitioners are familiar with the rules and procedures surrounding the guardianship process, many are less familiar with the procedural requirements for the appointment of a guardian advocate on behalf of someone with a developmental disability.  This decision deals with two such procedural requirements: (1) what constitutes a finding of "good cause" to proceed with the guardianship proceeding without the potential ward present and (2) the requirements for a written order appointing guardian advocates.  

Good Cause to Proceed Without Potential Ward:

Here, the potential ward did not attend the hearing on her family's petition for the appointment of guardian advocates.  The ward's attorney did not waive his client's presence, but did state on the record that he had communicated with her and she did not want to attend.  The ward's father testified about the ward's physical and mental limitations, and the court also received doctors' reports regarding her condition.  Based on the facts presented at the hearing, the trial court entered an order appointing the ward's family as her guardian advocates.

The ward argued that the court failed to make a finding of good cause when it proceeded with the hearing without her being present, as required by F.S. 393.12(6)(c).  The Court held that F.S. 393.12 required the court to make a finding that the ward's waiver of her right to appear was made knowingly and voluntarily.  This can be done by examining the ward on the record or by examining third parties who know the ward.  Here, since the trial court had heard from the ward's attorney who stated that the ward did not want to attend, the Court held that the trial court had implicitly considered the ward's decision not to appear as good cause to hold the hearing in her absence.

Requirements for an Order Appointing Guardian Advocate:

The Court also considered whether the trial court's order appointing the ward's family as her guardian advocates satisfied the requirements of F.S. 393.12(8).  The Court found that because the trial court failed to make findings as to the nature and scope of the ward's lack of decision-making ability, and failed to make a finding as to the specific legal disabilities to which the ward was subject, the order did not comply with F.S. 393.12.


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