“Standing” is a requirement that a litigant have a stake in the outcome of a proceeding. In most litigation, the issues of standing never arises. Most plaintiffs in a lawsuit would not be spending time and money on litigation unless there was something to be gained. Litigation over the issue of standing goes back centuries. The seminal United States Supreme Court case on standing, Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), holds that the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”
Guardianship litigation is different, because in most instances it is only the ward or the alleged incapacitated person (“AIP”) who has any actual stake in the outcome. To reflect the strong public policy that family members and other persons with a desire to protect the ward’s interests should be allowed to participate in guardianship proceedings, a different standard is used, known as the “interested person” standard. Rather than a fixed concept, the idea of “interested person” has devolved into more of an “I’ll know it when I see it standard,” which makes determining whether a person can participate difficult in edge cases. Therefore, a review of the caselaw is the best way to assess standing.
Standing is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly. Thus, standing to bring or participate in a particular legal proceeding often depends on the nature of the interest asserted.
In guardianship proceedings, the overwhelming public policy is the protection of the ward. See § 744.1012, Fla. Stat. (2006) (declaring that the purpose of the Florida Guardianship Law is “to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf”. Thus, unlike most other types of litigation, guardianship proceedings are not adversarial and are governed by a comprehensive statutory code and set of procedural rules dictating who should receive notice of a particular proceeding.
Unlike rule 5.700(a), which addresses objections to guardianship reports and allows “interested persons” to file an objection to any part of a guardianship report, there is no specific guardianship rule that provides for notice of, or objections to, petitions for guardian’s or attorney’s fees beyond what is provided in section 744.108. However, rule 5.060, which applies to all guardianship and probate proceedings in this state, including proceedings under section 744.108, provides:
(a) Request. Any interested person who desires notice of proceedings in the estate of a decedent or ward may file a separate written request for notice of further proceedings, designating therein such person’s residence and post office address. When such person’s residence or post office address changes, a new designation of such change shall be filed in the proceedings. A person filing such request, or address change, shall also deliver a copy thereof to the clerk, personal representative or guardian, noting on the original the fact of mailing.
(b) Notice and Copies. A party filing a request shall be served thereafter by the moving party with notice of further proceedings and with copies of subsequent pleadings and papers as long as the party is an interested person.
Thus, under rule 5.060, an “interested person” who files a request is entitled to notice of further proceedings and copies of all subsequent pleadings in the case. Although section 744.108 does not specifically require that an “interested person” receive notice, a person is nonetheless entitled to notice pursuant to rule 5.060 as long as the requirements of the rule have been satisfied and the trial court agrees that the person does in fact qualify as an “interested person.”… The question is what are the criteria for determining who qualifies as an “interested person.” Both the Florida Guardianship Law and the Florida Probate Rules specify that the term “interested person” is to be accorded the definition contained in chapters 731-735, Florida Statutes, known as the Florida Probate Code.11 The Florida Probate Code defines the term “interested person” as any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of the decedent’s estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor’s estate. The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.
§ 731.201(21), Fla. Stat. (2006).
Thus, unlike a ward, a guardian, or next of kin, who are specific persons occupying finite, statutorily defined roles,12 the definition of “interested person” requires the trial court to evaluate the nature of both the proceeding and the interest asserted. In defining an “interested person” as any person “who may reasonably be expected to be affected by the outcome of the proceeding,” section 731.201(21) incorporates the general standing principles referred to above. And because the question of who is an “interested person” may vary as the circumstances of the guardianship change, we cannot provide strict guidelines for the lower courts to follow in deciding whether a party who receives notice of a petition for attorney’s fees pursuant to a request made under rule 5.060 is a “person who may reasonably be expected to be affected by the outcome of the . . . proceeding.” § 731.201(21), Fla. Stat.
[J]ust as it is obviously for the competent person to spend or misspend his assets as he pleases, so it is up to the guardianship estate, regulated by the guardian and the court, to do the same without the interference or concern with the totally non-altruistic wishes of the ward’s relatives or legatees. Our review of the record reveals that the petitioners never made a request for notice under rule 5.060 as interested persons.13 Further, their involvement in guardianship proceedings that were necessitated by their own mistreatment of the ward and misappropriation of her funds does not entitle them to participate in proceedings involving requests for attorney’s fees by the ward’s attorney. The fact that they may have received a courtesy copy of some of the prior petitions does not in itself confer standing on them to participate in the subsequent proceeding. Because the petitioners were not entitled to receive notice of the attorney’s fees proceeding under either section 744.108 or rule 5.060, they did not have standing to participate in that proceeding.
McClain v. Wernicke
In McClain v. Wernicke, 2D2023-2364 (2nd DCA 2025), the Ward’s son and Personal Representative of the Ward’s estate objected to the Guardian’s final accounting, final report, and petition for discharge, claiming that proceeds from the sale of the Ward’s house were not properly accounted for, and to the payment of attorney fees. the trial court dismissed the objections on standing grounds because he had not file a request for notice and copies under Rule 5.060, nor sought to have the court declare him an interested person.
In reversing, the appellate court explained a crucial distinction between proceedings where the Ward is still alive as compared to proceedings after death.
Hayes involved a proceeding under section 744.108 on a petition for attorney’s fees filed during the administration of the guardianship, see id. at 501, but this case involves a proceeding for the guardian’s discharge upon the ward’s death and the review of the guardian’s final accounting and final report—a separate proceeding governed by Florida Probate Rule 5.680 and section 744.527, Florida Statutes (2023). As the guardian acknowledges in this appeal, rule 5.680 entitles a personal representative of a deceased ward’s estate to notice of a guardian’s final report and to file objections. See Fla. Prob. R. 5.680(e) (“The guardian applying for discharge shall serve a copy of the petition for discharge and final report on . . . the personal representative of a deceased ward . . . .”); Fla. Prob. R. 5.680(f) (“All persons served shall have 30 days to file objections to the petition for discharge and final report.”). Because rule 5.680 entitled Mr. McLain to notice and an opportunity to object, the reasoning of Hayes compels the conclusion that he had standing to raise his objections and otherwise participate in the proceeding. See 952 So. 2d at 500 (holding that a person “has standing to participate in a guardianship proceeding if the applicable provisions of either the Florida Guardianship Law or the Florida Probate Rules entitle the person to notice of the proceeding or authorize the person to file an objection in the proceeding”).
The appellate court also declared its limited view of the court’s decision in Hayes:
The Florida Supreme Court’s Hayes decision did not establish a categorical limitation on rule-based standing to only those who achieved the status of “interested person[s]” under rule 5.060; rather, isolation of its discussion to that rule was a consequence of the particular procedure at issue in that case. See id. at 509 (“We hold that in guardianship proceedings concerning attorney’s fees under section 744.108, the only persons entitled to standing are the attorney making the fee request, the guardian, the ward, and those ‘interested persons’ who have filed written requests for notice under Florida Probate Rule 5.060.” (emphasis added)). The rationale of Hayes includes a larger holding that must, by logic, apply to Mr. McLain in this case. Answering the question of “whether standing to participate in guardianship proceedings under this statute[, section 744.108,] is limited to the guardian and the ward—and their counsel in attorney’s fees proceedings—or whether it also extends to other parties,” the court deduced its answer from the general pronouncement that “in determining whether a person has standing in a guardianship proceeding, courts must consider the applicable provisions of both the Florida Guardianship Law and the Florida Probate Rules.” See id. at 502, 509 (emphasis added). While a section 744.108 proceeding concerns requests for guardian and attorney fees, a proceeding involving the review of a guardian’s final report also necessarily encompasses requests for certain guardian and attorney fees. See Fla. Prob. R. 5.680(b)(3), (c) (requiring that the guardian’s final report account for “the amount of unpaid and anticipated costs and fees to be paid to the guardian and to the attorneys . . . employed by the guardian”). And to the extent the guardian is requesting that her and her attorney’s unpaid and anticipated fees be paid from the assets of the guardianship estate, those are expenses that affect the finances of the ward’s estate for which Mr. McLain is charged with administering as the personal representative. Consequently, Mr. McLain has a “direct and articulable stake in the outcome” of the proceeding given his role as personal representative of the ward’s estate. Brown, 382 So. 2d at 662.
Even though the appellate court’s decision was the right one, the court did point out that filing the request for copies under Rule 5.060 might have alleviated this dispute.
To be sure, rule 5.060 applies to all guardianship proceedings, so a determination that Mr. McLain qualified as an interested person under rule 5.060 would have been sufficient to confer him with standing to object to the guardian’s final report and participate in the proceeding. See Hayes, 952 So. 2d at 506 (explaining that rule 5.060 “applies to all guardianship and probate proceedings in this state”). Under the circumstances of this case, however, whether Mr. McLain so qualified is immaterial given that rule 5.680 entitled him to notice of the proceeding and an opportunity to object. For that reason, we need not resolve the parties’ arguments regarding whether Mr. McLain qualified as an “interested person” within the meaning of rule 5.060.
Finally, as a matter of general due process law rather than limited to guardianship issues, the appellate court took great issue with the conduct of the trial court, where the trial court limited the notice of the hearing to issues of standing, and then purported to rule on the substance of the objections.
While the trial court additionally concluded that Mr. McLain’s objections were “without merit” and “without basis under the Florida Guardianship Law, Florida Probate Rules, and relevant case law”—which may or may not have been based on the scope of the objections given the particular type of proceeding in which they were raised—this court cannot consider whether those additional conclusions support an affirmance of the orders on appeal and therefore makes no determination regarding the merits of those objections. This is because the trial court deprived Mr. McLain of his procedural due process rights to notice and an opportunity to be heard by limiting the hearing to the “legal issue of standing” but then—without further notice or hearing—ruling on the merits of Mr. McLain’s objections in its written orders. See Zelman v. Zelman, 175 So. 3d 871, 878 (Fla. 4th DCA 2015) (“And where a person has both standing and notice, a right to due process is triggered to insure that participation is meaningful. . . . ‘Fair notice and a reasonable opportunity to be heard shall be given interested parties before a judgment or decree is rendered.’ ” (quoting Ryan’s Furniture Exch. v. McNair, 162 So. 483, 487 (Fla. 1935))); cf. In re Est. of Assimakopoulos, 228 So. 3d 709, 715 (Fla. 2d DCA 2017) (concluding that the entry of judgments awarding expert witness fees “violated due process because neither Lana nor anyone else was notified that these claims would be considered at the sanctions hearing”).
The Zelman case has a great discussion of due process issues in evidentiary hearings. Read more about the case in the context of contested guardianship proceedings.
Rule 5.060
RULE 5.060. REQUEST FOR NOTICES AND COPIES OF PLEADINGS
(a) Request. Any interested person who desires notice of proceedings in the estate of a decedent or ward may file a separate written request for notice of further proceedings, designating therein such person’s residence and post office address. When such person’s residence or post office address changes, a new designation of such change shall be filed in the proceedings. A person filing such request, or address change, must serve a copy on the attorney for the personal representative or guardian, and include a certificate of service.
(b) Notice and Copies. A party filing a request shall be served thereafter by the moving party with notice of further proceedings and with copies of subsequent pleadings and documents as long as the party is an interested person.
