A child was born with severe brain damage. Some money was received and a guardian appointed to receive the funds. Subsequently, the minor’s parents filed a lawsuit against a physician for the brain injury. The jury found in favor of the physician. The trial court awarded court costs of about $83,000 in favor of the physician, and the physician attempted to collect this judgment against the minor’s guardianship. The physician asked the guardian to complete Form 1.977, the Fact Information Sheet, which lists the assets and income of a judgment debtor. The guardian refused to do so, the physician asked the guardianship court to order completion of the form, which the court ordered be done.
Can a Natural Guardian Place a Minor’s Assets at Risk Without Court Approval?
No. In reversing, the Court held that a parent or natural guardian has no right to place a minor’s assets at risk.
A natural guardianship ordinarily confers only custody of the person, and not of the property, of the child to the guardian. Parents, as natural guardians, however, are expressly authorized to exercise limited powers with regard to the personal property of their children. Section 744.301(2), Florida Statutes (2011), sets out the actions natural guardians may take on behalf of their minor children. All of the powers granted by the Legislature are for the benefit of the minor. There is no provision in the statute that allows the natural guardian to incur debt or to place the minor’s assets at risk. In fact, section 744.397(3), Florida Statutes (2011), suggests otherwise. That section provides:
If the ward is a minor and the ward’s parents are able to care for him or her and to support, maintain, and educate him or her, the guardian of the minor shall not so use his or her ward’s property unless directed or authorized to do so by the court.
The even bigger issue in the case was that a lawsuit had been filed by the parents of the minor when there was a guardianship in place. Section 744.441 of the Florida Guardianship Code enumerates the actions that a guardian can take, but only with court approval. As explained by the Court:
The natural guardians’ decision to bring the lawsuit, as next friend, on behalf of the minor cannot implicate the assets held by the legal guardian where the legal guardian has not consented to or participated in the litigation, and where no court approval for the expenditure of the minor’s assets has been sought or obtained. Notably, had Mrs. Jackson initiated the lawsuit as the minor’s legal guardian, she would have had to have received court approval to do so. § 744.441(11), Fla. Stat. Likewise, court approval would have been required for the guardian to prosecute or defend the action. Id. Here, the State, through the law of guardianship, has protected the minor by requiring court approval of a guardian’s decision to impact a minor’s estate. The legal guardian was not a party to the lawsuit, and court approval of the suit was not obtained. Therefore, the legal guardian in this case is not liable for payment of the cost judgment and had no duty to complete Form 1.977.
Finally, the Court, in a footnote, explains the real issue:
When, as here, a legal guardian of the property of a minor has been appointed, we question the authority of the natural guardian to bring an action in court or settle any claim, regardless of amount.
The Court did not have before it the question of whether the parents were legally able to file suit in the first place, so the Court properly did not rule on such issue. But the footnote addresses the real issue without actually ruling on it – the entire lawsuit was unauthorized and improper from the outset and should have been dismissed unless and until approval to file the lawsuit had been obtained from the guardianship court. Seeking approval from a guardianship court to file a lawsuit is no small matter – the court will weigh the risks and benefits of proceeding, to make sure that filing the lawsuit is in the best interests of the ward.
In re: Guardianship of J.S.J., 109 So.3d 1281 (5th DCA 2013).
