Rubin on Probate Litigation

Hernandez v. Hernandez , 230 So.3d 119 (Fla. 3d DCA 2017) In guardianship cases, the probate court has discretion to determine who is an "interested person" in a particular proceeding based on the particular purpose of, and the matter involved in, that proceeding. In this proceeding relating to the payment of attorney's fees from a Ward's assets, the Ward's son alleged that he had standing as an interested person to object to the payment of those fees.   The attorney's fees being sought in this case generated from the following proceedings: (1) After one of the Ward's sons allegedly mistreated her, her other son petitioned to be appointed as her plenary guardian, to which the first son objected. (2) Once the second son was appointed as plenary guardian for his mother, he engaged in an adversary proceeding against the first brother and his family for mistreating the mother. (3) The second son, as guardian, petitioned to sell the Ward's pr...

Zelman v. Zelman , 175 So.3d 871 (Fla. 4th DCA 2015), 2015 WL 5125439 Does a spouse have a due process right to be heard, call witnesses and present evidence at an incapacity hearing?  The Court in this decision held that because a spouse is an interested person, the spouse has standing to participate in the guardianship proceeding, and that participation must be meaningful.  Meaningful participation must be more than being allowed to be present and to speak- the spouse has the right to introduce evidence at a meaningful time and in a meaningful manner.  This is because the effect of a guardianship proceeding on a spouse is extensive.  The proceeding can impact the marriage, the marital home and the marital finances.  A spouse is also in a position to weigh in on what is in the ward's best interests.  Here, because the trial judge precluded the spouse from participating in the proceeding, the Court reversed the guardianship orders and remanded the case ...

Rudolph v. Rosecan ,  154 So.3d 381  (Fla. 4th DCA 2014), 2014 WL 6674749 This decision deals with who is considered an "interested person" in a guardianship proceeding for purposes of objecting to a guardian's annual accounting.  Here, a father was appointed plenary guardian of his adult autistic son's person and property.  A parenting plan was incorporated into the order appointing the father as guardian, and that parenting plan provided for the father and mother to have shared decision making authority and information sharing rights with regard to their son.  It expressly provided that the father had ultimate authority to make decisions about his son's person, but did not address financial decisions. The father voluntarily provided the mother with copies of his annual guardianship accountings over the years, but eventually sought a court order declaring that the mother was not an interested person for purposes of the annual accounting.  The tria...