Florida Probate, Trust & Guardianship Litigation

Interested Persons In Florida Guardianship Entitled to Due Process

Due process is a common issue that comes up in cases concerning all areas of Florida law.  In Flegel v. Swistock, 4D13-4410 (4th DCA 2015) due process rights were at issue in the context of a Florida guardianship involving the joint titling of stocks between a ward and his daughters.

The Ward had five daughters.  Four of the daughters were in a dispute with the Ward about stock shares.  The stock shares were held as joint tenants with right of survivorship between the Ward and the four daughters.  In 2010, before the Ward was subject to a Florida guardianship, the Ward sued his four daughters in Pennsylvania, claiming that he had intended his four daughters to inherit the stock upon his death, and had not intended to gift the stock to them. 

In 2012, the father had a stroke.  His fifth daughter (not involved in the Pennsylvania stock lawsuit) petitioned for Florida guardianship.  The disputed stock was listed as property subject to the guardianship.  The Florida guardianship court entered an order setting a hearing on the fifth daughter’s petition for appointment of guardian.  The other four daughters were mailed copies of the order setting the hearing.  The order was received by the four daughters four days prior to the hearing.  Two of the daughters sent letters to the Florida guardianship court saying they could not attend on such short notice.

The hearing was held.  At the hearing, the Florida guardianship court appointed the fifth daughter emergency temporary guardian, and granted her “full power” over the stock shares.  The next day, the fifth daughter presented a proposed order to the Florida guardianship court requiring the disputed stock shares to be transferred from the joint tenancy with the four daughters to the fifth daughter “for the specific purpose of protecting the father and securing dividends needed to pay for his round-the-clock care.”  The court signed the order without notice to the four daughters and without a hearing.  The father died the next day.

The fifth daughter eventually petitioned to be discharged as emergency temporary guardian, and the stock shares were transferred to the Ward’s estate.  While the fifth daughter’s petition for discharge was pending, the Pennsylvania court (where the stock share dispute was still pending), entered an order in favor of the four daughters, finding that the stock shares were held jointly between the four daughters and the now-deceased Ward.  So, the four daughters filed an objection to the fifth daughter’s petition for discharge and final report in the Florida guardianship court, and challenged the Florida order transferring the stock to the guardianship.  The four daughters claimed violation of their due process rights — they had no reasonable notice and no opportunity to be heard.

The Florida guardianship court approved the final report over the four daughters’ objection, finding the objection untimely.  The Florida guardianship court approved distributing all of the shares to the father’s estate, and the fifth daughter was discharged as emergency temporary guardian.

On appeal, the four daughters argued that they were deprived of their jointly titled stock without due process, rendering the orders of discharge and approval of final report void.  The Florida appellate court partially agreed.  The Florida appellate court found that the four daughters’ due process rights were violated by the entry of the stock transfer order without notice or an opportunity to be heard.  The entry of the order violated the four daughters’ rights under the United States Constitution, the Florida Constitution, Florida common law, and the Florida Probate Code.

Interested Persons

Florida case law tells us that:”[D]ue process requires both fair notice and a real opportunity to be heard,” and that “notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

The Florida probate code requires notice to interested persons under Rule 5.041, which provides that “every petition or motion for an order determining rights of an interested person . . . shall be served on interested persons.”  The appellate court reasoned:

When the petition was filed, the stock was titled in the names of each of the four daughters and the father as a joint tenancy with right of survivorship. Their interests were affected by the court’s September 12th order transferring the stock to the fifth daughter as emergency temporary guardian. They were entitled to reasonable notice and an opportunity to be heard….While there are no hard and fast rules about how many days constitute a ‘reasonable time,’ the party served with notice must have actual notice and time to prepare.

Due Process

The court went on to reason that:

Because the four daughters did not receive reasonable notice, they were deprived of their property without due process. This due process violation was even more egregious as the petition did not actually request the transfer of the stock, but merely identified the stock as subject to the guardianship. So, there was in effect no notice of the fifth daughter’s intent to transfer the stock.

However, the Florida appellate court also found that the four daughters waived their right to object to the petition for discharge and final report, because they did not file their objections within 30 days of receiving notice of the petition for discharge and the final report.  They further failed to notice a hearing on their objection within ninety days after filing it. They therefore abandoned or waived any objection pursuant to Rule 5.680 of the Florida probate code.

The lesson from this case, and from so many of the Florida appellate court cases, is that due process is important, and failure to provide notice and an opportunity to be heard can completely undo the work done in the trial court.  If someone is an interested person in a Florida guardianship, or if someone is going to be affected by the outcome of your efforts in the Florida trial court or probate court, make sure to provide them with reasonable notice and an opportunity to be heard.

Oral Argument at 5th District Court of Appeals

Florida Probate Attorney Jeffrey Skatoff Arguing in Court

Jeffrey Skatoff

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