Legal Aid Society of Palm Beach County, Inc., Public Guardianship Program v. The Guardianship of Jennifer Jaffe and Ferd and Gladys Alpert Jewish Family & Children's Service

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

LEGAL AID SOCIETY OF PALM BEACH COUNTY, INC., PUBLIC
GUARDIANSHIP PROGRAM,
Appellant,

v.

THE GUARDIANSHIP OF JENNIFER JAFFE and FERD AND GLADYS
ALPERT JEWISH FAMILY & CHILDREN’S SERVICE,
Appellees.

No. 4D15-357

[November 4, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Krista Marx, Judge; L.T. Case No.
2006GA000194XXXXNB.

Robert J. Hauser of Pankauski Law Firm PLLC and Rena J. Taylor of
Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for
appellant.

Antony P. Ryan, Regional Counsel, and Melanie Casper, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
West Palm Beach, for appellee Jennifer Jaffe.

Mitchell I. Kitroser of Mitchell I. Kitroser, P.A., North Palm Beach, for
appellee Ferd and Gladys Alpert Jewish Family & Children’s Service.

WARNER, J.

The Legal Aid Society of Palm Beach County, Inc., Public Guardianship
Program, appeals an order appointing it to serve as successor guardian to
a previously-declared incapacitated ward. The court appointed Legal Aid,
despite its objection that to act as guardian for this ward would require it
to exceed the statutorily set ratio of guardians to wards. To overcome this
objection, the court ordered Legal Aid to transfer one of its present wards
to the ward’s withdrawing guardian, Ferd and Gladys Alpert Jewish Family
& Children’s Service of Palm Beach County, Inc. (“AJFCS”). Because the
court had no authority to involuntarily appoint Legal Aid, nor to order the
transfer of other wards to another guardian, we reverse.
 In 2006, the subject ward was determined to be incapacitated. Since
that time, the ward has had at least six court-appointed guardians, the
most recent being AJFCS. AJFCS petitioned to resign, claiming that the
situation with the ward had become “untenable.” As guardian, AJCFS
could not control the actions of the ward or the ward’s family and their
effect on the ward’s person and property. The ward’s mother distributed
money directly to the ward, and arranged medical appointments and
treatment without consulting AJFCS. The ward was in an “unhealthy
relationship” with a man. She also drove her vehicle, even though her
right to drive had been taken away in the incapacity proceedings. Because
AJFCS could not control either her person or property, it sought to
withdraw.

In its petition, AJFCS suggested that the Statewide Public Guardian
appoint a local public guardian in its place, as the ward did not have
sufficient funds at the present time for a private guardian. It did not
provide notice, however, to either the Statewide Public Guardian or Legal
Aid, the local public guardian, as is required by Florida Probate Rule
5.560(c).

Without notice to Legal Aid, the court approved the resignation of
AJFCS and appointed Legal Aid as successor plenary guardian. A copy of
the order was served on Legal Aid, which immediately filed a motion for
rehearing based upon its lack of notice. It asserted that it did not accept
the appointment as successor guardian because, if it took another ward,
it would exceed the statutory ratio limiting the number of wards it could
serve. The court granted the motion for rehearing.

At the new hearing, the probate court made it clear that it had approved
AJFCS’s resignation and would not re-appoint it as guardian. Despite its
best efforts, AJFCS was not able to protect the ward from herself and
admitted that it was “stumped” by this case.

Legal Aid contended that the court lacked authority to order the public
guardian to take the case. No statutory authority existed for the court to
compel its appointment. Moreover, section 744.708(7), Florida Statutes
(2015), provides for a staff-to-wards ratio of one to forty. Legal Aid was at
that ratio and could not take on any more wards.

Ultimately, to remedy Legal Aid’s over-capacity concern, the court
ordered AJFCS to take over as guardian of a ward of Legal Aid, although
the court did not designate any specific ward. The court then denied Legal

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Aid’s motion for rehearing, confirming Legal Aid’s appointment as
guardian of the ward. Legal Aid now appeals the order of appointment.

Simply stated, the question presented in this case is whether the trial
court had any authority to appoint Legal Aid as guardian of this ward, over
its objection and despite the fact that this would cause it to exceed its
statutory capacity. The answer is that there is no authority for the court
to make this involuntary appointment. No statute or rule provides any
such authority, and the history of Florida Probate Rule 5.560 provides
evidence that the court does not have any discretionary authority to
appoint the public guardian.

Florida’s Public Guardianship law was created by the Legislature in
1986. See § 744.701, Fla. Stat. (2015). Its purpose was to permit the
establishment of offices of public guardianship throughout Florida to
provide guardianship services to incapacitated persons who could not
afford a private guardian and had no family members to assume the task
of guardianship. § 744.702, Fla. Stat. (2015). The Legislature created a
Statewide Public Guardianship Office to coordinate these offices, including
the development of standards for public guardians. § 744.7021, Fla. Stat.
(2015). Funding for public guardians comes through state funding as well
as local efforts. See § 744.706, Fla. Stat. (2015). “The public guardian
. . . primarily serve[s] incapacitated persons who are of limited financial
means, as defined by contract or rule of the Department of Elderly Affairs.”
§ 744.704(3), Fla. Stat. (2015).

Undoubtedly recognizing that the need for public guardianship may be
greater than the resources available, the Legislature limited the number of
wards a public guardian may serve based upon a staff-to-ward ratio. “The
ratio for professional staff to wards shall be 1 professional to 40 wards.”
§ 744.708(7), Fla. Stat. (2015). In 1996, this provision was amended so
that “[t]he Statewide Public Guardianship Office may increase or decrease
the ratio after consultation with the local public guardian and the chief
judge of the circuit court.” Id. It is thus not within the authority of a single
judge within a circuit to compel the public guardian to exceed the
statutorily imposed ratio.

Additionally, nowhere in the statute does the Legislature direct the
public guardians, many of whom are appointed through a contract with
the Statewide Public Guardianship Office, to serve as guardian for all
indigent incapacitated wards. In contrast, for example, public defenders
are explicitly required by statute to represent any indigent individual
charged with a felony, as well as other mandatory proceedings. See, e.g.,
§ 27.51, Fla. Stat. (2015). In other words, if the Legislature had deemed it

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appropriate to mandate that the public guardian be appointed for all
indigent incapacitated persons, it could have provided for the same by
statute. It did not.

The history of Florida Probate Rule 5.560, which provides procedural
rules for petitions for the appointment of a guardian to an incapacitated
person, also confirms that the court has no authority to make an
involuntary appointment of a public guardian. Prior to 1989, Florida
Probate Rule 5.560(b) provided that “[t]he court on its own motion may
appoint the public guardian without notice to the public guardian.”
(Emphasis omitted). This sentence had been added by the Florida
Supreme Court itself in a rule revision in 1987. See In re Rules of Probate
& Guardianship Procedure (Pub. Guardianship), 517 So. 2d 675, 676 (Fla.
1987). However, this language disappeared from the rule in 1989, when
the court adopted interim rules after the Legislature substantially rewrote
the guardianship law. In re Amendment to Florida Probate Rules Part III
(Guardianship), 551 So. 2d 452 (Fla. 1989). The authority to appoint the
public guardian sua sponte has never reappeared in the rules. Instead,
the present rules provide notice to the guardian if a petitioner requests the
appointment of a public guardian. See Fla. Prob. R. 5.560(c).

To remedy the ratio problem, the court in this case compelled a “swap”
of wards by requiring Legal Aid to transfer the guardianship of one if its
present wards for the ward in this case. This, too, is contrary to statutory
authority. First, “swapping” wards suggests that these incapacitated
individuals are fungible. They clearly are not. Every ward has a
guardianship plan, see § 744.363, Fla. Stat. (2015), and public guardians
are required by statute to personally visit the ward at least once each
calendar quarter, see § 744.708(6), Fla. Stat. (2015). Thus, there is every
expectation that the public guardian will develop some rapport with the
ward. A guardian is not allowed to resign without assurances that the
ward’s interest will not be placed in jeopardy. See § 744.467, Fla. Stat.
(2015). The court’s order compelling Legal Aid to “swap” out a ward runs
contrary to and ignores the principles underlying these statutes.

Furthermore, Legal Aid is not only at its capacity for wards, it has a
waiting list. That list is comprised of persons who meet eligibility
requirements, as defined by the Department of Elderly Affairs. See
§ 744.704(3), Fla. Stat. (2015). Ordering Legal Aid to accept this ward,
whose eligibility has not even been determined, prevents the public
guardian from serving those incapacitated persons who are already eligible
and awaiting appointment. There is no provision in the statute for the
court to determine eligibility. That is left to the executive branch through

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the Department of Elderly Affairs. By ordering Legal Aid to act as guardian
of this ward, the court is disregarding an executive branch function.

Obviously, the court felt that this particular ward presented a real
dilemma. The court found that AJFCS could no longer serve as her
guardian when she refused to comply with their directives. As there was
no evidentiary hearing on the issue, we cannot comment on this
evaluation. However, section 744.471, Florida Statutes (2015), precludes
the court from relieving a guardian from his or her duties until a successor
is appointed. Therefore, the court should not have allowed the resignation
of AJFCS until it had properly appointed another guardian.

We recognize that there are few options available to the court. And, as
Legal Aid points out, there is no guarantee that it would have any better
success with this ward than AJFCS, even it if could accept the
appointment as the ward’s guardian. If the ward is truly a danger to
herself, involuntary hospitalization or placement may be needed, for which
court approval must be obtained.1 See § 744.3215(4), Fla. Stat. (2015).
The court may also request the involvement of the chief judge and the
Statewide Public Guardianship Office to review the capacity of the public
guardian in Palm Beach County.

For the foregoing reasons, we hold that the court has no authority to
make an involuntary appointment of Legal Aid as the public guardian of
an incapacitated ward. We reverse and remand for further proceedings.

CONNER, J., and LEVEY COHEN, MARDI, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1We also note in the record on appeal that the ward has petitioned to have her
capacity restored.

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