Florida Probate, Trust & Guardianship Litigation

“Best Interests of the Ward” v. “Contrary to the Best Interests of the Ward”

A Florida guardianship case shows the difference between best interests of the ward vs. contrary to the best interests of the ward.  In In Re Koshenina, 1D13-53 (1st DCA 2014), Linda Koshenina in 2010 developed Picks disease, a rapidly progressive and terminal form of dementia.  In November 2010, Linda executed a preened guardian designation form, naming her husband James to be her guardian should a guardian ever need to be appointed for her.  A preened guardian designation form is a recognized estate planning and guardianship document under Florida law.  As Linda’s condition worsened, in 2011 James placed Linda into a care facility where she lived, although she returned home periodically in the evenings to sleep in her bed.  At her first night in the facility, Linda fell and sustained some moderate injuries.  Linda’s siblings petitioned for emergency temporary guardianship in 2012 claiming that Linda was not being properly cared for.  In response, James filed the preened guardianship designation naming himself as the guardian.  

At the hearing on their petition, the siblings attempted to establish that the preened guardianship designation was invalid because Linda was either incompetent when she signed it or was under the undue influence of James.   The only evidence of incompetence at the time she signed the document was testimony from Linda’s neurologist that he doubted Linda could have understood what she was signing, even though the time she executed the preneed designation was an entire year before the doctor started treating her. The siblings offered no expert testimony that Linda was incompetent or incapacitated at the time she executed the pre-need guardian designation.  There was evidence that Linda failed certain medical cognitive tests four weeks before executing the pre-need guardianship designation, and that she was extremely impaired on some tasks but not others. 

The trial court found as follows: 

Although Linda executed the designation among James her preened guardian, it was executed only after the dementia process has seriously compromised her ability to understand what she was doing and the trial court seriously questioned despite possible lucid intervals that Linda may have experienced, whether Linda understood what she was doing when she executed the document.  The trial court stopped short , however, of finding Linda incompetent at the time she executed the designation. It went on to conclude that it was not in Linda’s best interest to honor Linda’s preference expressed in the designation because of the court’s findings regarding events subsequent to the executed of the document. 

Mental Competency Crucial in Evaluating Pre-Need Designation

In reversing the trial courts disregard of the preneed designation, the appellate court held that the trial court erred in failing to rule on the core question of whether Linda was mentally incompetent at the time she executed the pre-need designation. 

We hold that the appropriate test for determining whether a ward was competent to make a decision regarding who will be her preneed guardian, is whether the ward had the capacity to generally understand the nature of the decision she is making and its implication  This test is analogous to that used in the context of testamentary capacity cases, which requires that a testator understand in a general way the nature and extent of his property to be disposed of, the testator’s relation to those who would naturally claim a substantial benefit from his will, and the effect his disposition will have.   

Assuming that Linda was competent when she executed the preneed guardianship designation, the court further held: 

Section 744.3045(4), Florida Statutes (201), provides in pertinent part that production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve.  If the person designated is qualified to serve, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.  Here, the trial court was required to apply this statutory standard, meaning that the rebuttable presumption of James’ entitlement to serve as his wife’s preneed guardian could only be overcome by a specific, factually-supportable finding that appointing James was contrary to the best interests of his wife.  Instead, the trial court made an independent determination of what it believed was in Linda’s best interest. 
The linguistic distinction between what is contrary to the best interest of the ward and what may be in the best interests of a ward is subtle, but its legal ramifications are potentially life-altering, particularly in the context of overriding a ward’s personal designation of whom she wants act on her behalf on private, personal health matters. 

The plain reading of Section 744.312(4) requires an approach that gives greater deference to a potential ward’s designation in a Florida guardianship proceeding and requires a showing that-based on Linda’s expected residence in a total care facility-her husband should not serve as her preneed guardian because his appointment is contrary to the best interests of the ward.  

Oral Argument at 5th District Court of Appeals

Florida Probate Attorney Jeffrey Skatoff Arguing in Court

Jeffrey Skatoff

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