Florida Bar Journal

2020: A Challenging Year for Keeping Up With Changes to Probate and Guardianship Rules and Statutes

Illustration by Barbara Kelley

In addition to all of the unprecedented changes affecting just about every aspect of their lives in 2020, probate and guardianship attorneys were faced with many changes in the Florida Probate Rules, the Florida Probate Code,^[1] and the Florida Guardianship Law.^[2] Because court rules and statutes can have different effective dates, careful attention is required to ensure that documents filed and served with the court comply with the current judicial and legislative requirements.

The sources for probate and guardianship changes becoming effective in 2020 include: Laws of Fla. Ch. 2019-71,^[3] Ch. 2020-35, Ch. 2020-67, Ch. 2020-73, Ch. 2020-110; In re: Amendments to the Fla. Prob. Rules — 2019 Regular-Cycle Report, 287 So. 3d 492 (Fla. Dec. 19, 2019); In re: Amendments to the Fla. Prob. Rules — 2019 Fast-Track Report, 288 So. 3d 565 (Fla. Jan. 16, 2020); In re: Amendments to the Fla. Probate Rules — Guardianship, 301 So. 2d 859 (Fla. Sept. 3, 2020); In re: Amendments to the Fla. Prob. Rules-Vulnerable Adults, No. SC20-21, 45 Fla. L. Weekly 255 (Sept. 24, 2020); In Re: Amendments to the Florida Probate Rules — 2020 Fast-Track Report, No. SC20-1746, 2020 Fla. LEXIS 2145 (Dec. 31, 2020).

Each court opinion and each legislative item contains an effective date. Some of the cases involving proposed rule changes were pending simultaneously. Some legislative changes took effect before or after the rules cases were filed with the Florida Supreme Court. Each opinion and each legislative item must be reviewed to determine the interaction between the work of the Florida Supreme Court and the work of the Florida Legislature. In general, the procedural aspects of probate and guardianship proceedings are governed by the Florida Probate Rules and the substantive aspects of the law are governed by the Florida Probate Code and the Florida Guardianship Law. Often, however, distinguishing between what is procedural and what is substantive is difficult. The following article helps Florida practitioners reconcile the application of the rules and statutes that govern guardianship and probate proceedings, especially for the changes in 2020.^[4]

Motion for Rehearing

To reconcile a difference between the Florida Rules of Civil Procedure and the Florida Probate Rules, the time for service of a motion for rehearing in a probate or guardianship proceeding has been modified. Rule 5.020(d) was amended to change the deadline for service of a motion for rehearing from 10 days to 15 days after the date of the filing of the order or judgment, effective January 1, 2020.^[5]

Service

Rule 5.040 governs the service of court papers in probate and guardianship proceedings. Rule 5.040(a)(3)(D) was amended to permit service by first class mail for quasi in rem or in rem jurisdiction in limited circumstances.^[6] Rule 5.040(a)(5) addresses completion of service under subdivisions (a)(3)(B) and (C). Proof of service requires a “receipt signed by the person to whom delivery was made or other evidence satisfactory to the court that delivery was made.”^[7] This rule amendment became effective January 1, 2020.

F.S. §731.301 was amended to recognize that formal notice in a probate or guardianship proceeding is sufficient notice for the court to exercise in rem jurisdiction over a person’s interest in the property of the estate and a person’s interest in protected homestead. The amendment further confirmed that formal notice does not result in in personam jurisdiction over the person served.^[8] The amendment applies to all proceedings pending “on or before, or commenced after, the date this act becomes a law.”^[9]

Petition for Administration

Rule 5.200 has been amended to require affirmative statements about a petitioner’s priority and qualification to serve as personal representative. The petition must state “whether or not any other person has equal or higher preference, and if so, their name and whether they will be served with formal notice.”^[10] Subsection (k) was added to provide explicit statements about the personal representative’s qualifications:

(k) [A] statement that the personal representative seeking appointment is qualified to serve under the laws of Florida as a business entity under section 733.305, Florida Statutes, or, if an individual, that the person is qualified to serve under the laws of Florida, including:

(1) whether the person has been convicted of a felony;

(2) that the person is mentally and physically able to perform the duties of personal representative;

(3) that the person is 18 years of age or older; and

(4) whether the person is a resident of Florida and, if not a resident, a statement of the person’s relationship to the decedent in accordance with section 733.304, Florida Statutes.^[11]

Notice of Administration

Rule 5.240 contains the procedural requirements for a notice of administration, which alerts recipients to certain deadlines that may affect their rights under the Florida Probate Code. The contents of the notice of administration are contained in probate Rule 5.240 and F.S. §732.212. Rule 5.240(b)(4) was amended to recognize that the deadline to file a petition for determination of exempt property could be extended by 40 days after the conclusion of proceedings to construe, admit, or determine the validity of the will.^[12] Rule 5.240(b)(5) was amended to specify the time limit for a surviving spouse to file an election to take an elective share, replacing “within the time provided by law.”^[13] Section 733.212(2)(e) was amended to recognize that the deadline to file an election to take an elective share could be extended pursuant to §732.2135(2).^[14] Subsection (f) was added to §733.212, requiring the following sentence in the notice of administration: “That, under certain circumstances and by failing to contest the will, the recipient of the notice of administration may be waiving his or her right to contest the validity of a trust or other writing incorporated by reference into a will.”^[15]

Burden of Proof in Will Contests

Rule 5.275(b) was added to reflect the public policy of the State of Florida in will contests: “(b) In any transaction or event to which the presumption of undue influence applies, the presumption shifts the burden of proof under sections 90.301-90.304, Florida Statutes.”^[16]

Oath of Personal Representative

The personal representative’s qualifications are restated in the oath of personal representative. A form for the oath has been added. In addition to the statements required for the petition for administration, the oath must contain statements that the personal representative has reviewed the statutes relating to the requirements for appointment; the personal representative is qualified to serve; and the personal representative has an ongoing duty to file and serve notice upon the occurrence of an event that would disqualify the personal representative.^[17]

The new oath form was proposed before the enactment of §§117.021 and 117.03, which authorize electronic notarization and require new language in acknowledgments and oaths. The form needs to be updated to reflect these changes.

Petition for Family Allowance

Subdivision (c) of Rule 5.407 was amended to comply with Fla. R. Jud. Admin. 2.425. The order awarding a family allowance should only use the initials of each minor child identified in the order.

Disposition of Intestate Property in Small Estates

Section 735.504, enacted in 2020, allows for the disposition of nonexempt property when there is no will and certain requirements are met:

(1) No administration shall be required or formal proceedings instituted upon the estate of a decedent who has died intestate leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the Florida Constitution, and nonexempt personal property the value of which does not exceed the sum of $10,000 and the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness, provided the decedent has been deceased for more than 1 year and no administration of the decedent’s estate is pending in this state.^[18]

Rule 5.425 was added to cover the procedural aspects and contents of the affidavit, service of the affidavit, and the “writing under seal of court,”^[19] which permits the distribution of the property.

Petition for Ancillary Administration

Rule 5.470 was amended to clarify the contents of the petition for ancillary administration, the required documents from the domiciliary proceedings, and to require an explanation if someone other than the domiciliary personal representative is petitioning for appointment.^[20]

Claims

Rule 5.490 was amended to reflect the electronic filing and service procedures that are now required under the Rules of Judicial Administration. Subdivision (b), which previously required the filing of a claim in duplicate, has been deleted. Other subdivisions were amended to reflect the current requirements for electronic service.^[21]

Personal Representative Compensation

If the drafting attorney, or someone closely related to or employed by the attorney, is nominated in a document to serve as personal representative, §733.617(8)(a) now requires disclosures to ensure that the client made an informed decision to nominate the drafting attorney or a person employed by or related to the attorney. If the disclosures are not made, the personal representative is not entitled to compensation. The statute includes a form disclosure. The statute applies to wills executed or republished by a Florida resident on or after October 1, 2020.^[22]

Guardianship Forms

Rules 5.901 through 5.910 have been added to include standard forms for guardianship proceedings. The opinion approving the forms includes a general guideline for the use of the forms:

The following forms are sufficient for the matters that are covered by them. So long as the substance is expressed without prolixity, the forms may be varied to meet the facts of a particular case. The forms are not intended to be part of the rules and are provided for convenience only.^[23]

Petition for Appointment of Guardian for Minor

Section 744.446, as amended in 2020, reflects the legislature’s attention to potential conflicts of interest for a guardian. Subsection (2) was added to prevent improper financial gain by a guardian:

(2) A guardian may not offer, pay, solicit, or receive a commission, benefit, bonus, rebate, or kickback, directly or indirectly, overtly or covertly, in cash or in kind, or engage in a split-fee arrangement in return for referring, soliciting, or engaging in a transaction for goods or services on behalf of an alleged incapacitated person or minor, or a ward, for past or future goods or services.^[24]

Subsection (3) was amended to reinforce the prohibition against inappropriate financial transactions involving “the ward, the judge presiding over the case, any member of the appointed examining committee, any court employee involved in the guardianship process, or the attorney for the ward.”^[25] Rule 5.555(c)(6) now requires the guardian disclose any activities that would violate §744.446(3).

Subsection (c)(9) has been added to Rule 5.555, requiring that the petition for appointment of guardian include a statement as to:

(9) whether there are possible alternatives to guardianship known to the petitioner, including but not limited to, trust agreements, powers of attorney, surrogates, guardian advocate under section 744.3085, Florida Statutes, or advance directives and why those possible alternatives are insufficient to meet the needs of the minor.^[26]

This confirms the overall theme that guardianship, even for a minor, should be a last resort.

Initial and Annual Guardianship Plans for Minors

The requirements for an initial guardianship plan and an annual plan for a minor are found in Rule 5.555(e) and §§744.363 and 744.3675. The amended rules contain recommended forms for the initial guardianship plan for a minor and the annual guardianship plan for a minor. The forms are included as subdivisions (a) and (b) of Rule 5.904.^[27]

Petition to Determine Incapacity

Subdivision (a)(8) of Rule 5.550 was amended to require more specific statements to further ensure that there are no alternatives to a determination of incapacity. The petition to determine incapacity must include a statement explaining:

(8) whether there are possible alternatives known to the petitioner, including, but not limited to, trust agreements, powers of attorney, designations of health care surrogates, or other advance directives, and if the petitioner is seeking a guardianship, an explanation as to why the alternatives are insufficient to meet the needs of the alleged incapacitated person.^[28]

The amendments approved by the Florida Supreme Court also include a form petition to determine incapacity.^[29]

Petition for Appointment of a Guardian for an Adult

Amendments to Rule 5.560, which governs the contents of a Petition for Appointment of Guardian, and the creation of Rule 5.902, which provides a recommended form, became effective September 3, 2020,^[30] and December 31, 2020.^[31] These rule amendments were the result of petitions filed with the Florida Supreme Court before the effective date of changes to §744.334, which also governs the contents of a petition for appointment of a guardian, on July 1, 2020. Practitioners must begin with the requirements in Rule 5.560 and the suggested form in Rule 5.902, and then follow the requirements in §744.334.

Order Appointing Guardian; Letters of Guardianship

New Rules 5.902 and 5.903 contain recommended forms for the order appointing guardian and letters of guardianship. The Florida Supreme Court opinion approving the recommended forms was issued September 3, 2020. Sections 744.334 and 744.312 were amended effective July 1, 2020, to require specific findings in the order appointing guardian to ensure that there are no less restrictive alternatives to guardianship and no conflicts of interest that would violate the guardian’s fiduciary duties.^[32]

Inventory

Rule 5.620 directs the guardian to file an inventory of the assets subject to guardianship. Rule 5.910 now provides a form for the inventory.^[33]

Initial and Annual Guardianship Plans for Adults

The initial and annual guardianship reports for an adult are governed by Rule 5.690 and Rule 5.695. New forms for an initial guardian plan for an adult and the annual guardianship plan for an adult are found in subdivisions (c) and (d) of Rule 5.904.^[34] New legislation authorizes the completion of the physician’s report, which accompanies the annual plan, by a physician assistant.^[35] A recommended form for the physician’s report is included as Rule 5.904(e).^[36] Appendix A to Rule 5.904 adds instructions for guardians and guardian advocates for filing annual plans.^[37] Appendix B includes a chart for calculating the deadline for filing the annual plan.^[38]

Changes Affecting Adult and Minor Guardianship Reports

Sections 744.367 and 744.3675, which govern the contents of annual plans and accountings for both minor and adult guardianships, were amended in 2020, with an effective date of July 1, 2020.^[39] Because the petitions to amend the guardianship rules were filed by the Florida Probate Rules Committee before the enactment of the legislation, the new statutory provisions are not included in the 2020 rule amendments. The legislative changes include required disclosures about any factors affecting the guardian’s qualifications, a review of possible alternatives to guardianship, existing orders not to resuscitate, and a declaration of all “remuneration” received by the guardian.

Guardian Actions Requiring Court Approval

The Florida Legislature took action in 2020 to further protect incapacitated persons from the improper use of a “do not resuscitate order.” Subsection (2) was added to §744.441.^[40] The new subsection creates an expedited procedure for a guardian to obtain court authorization for the signing of an order not to resuscitate.^[41] The procedures also include safeguards to ensure that the action is appropriate and considered on an expedited basis. Rule 5.630 was amended to cover the procedures for obtaining judicial approval of a guardian’s request for authorization to sign an order not to resuscitate.^[42]

The legislature also strengthened the prohibitions for conflicts of interest and breach of fiduciary duty. Section 744.446, as amended in 2020, not only prohibits improper financial gain by a guardian in carrying out his or her duties, but it also requires prior court approval for a guardian to engage in any transaction where the guardian has or acquires an interest “with the ward, the judge presiding over the case, any member of the appointed examining committee, any court employee involved in the guardianship process, or the attorney for the ward.”^[43]

Guardian Advocate Forms and Procedures

Section 393.12 authorizes the appointment of a guardian advocate for a person with developmental disabilities. A formal determination of incapacity is not required, and the person with a developmental disability does not lose the rights that would ordinarily be delegated to a guardian. Rule 5.649 addresses the requirements for a petition for appointment of guardian advocate and the resulting order and letters. The rule has been amended to require a statement about the efforts to locate documents such as a power of attorney, health care surrogate designation, order not to resuscitate, and a living will. If such documents exist, the petition must explain why the documents are not adequate to avoid the need for a guardian advocate.^[44] Rule 5.905 adds forms for the petition, notice, and order in a guardian advocate proceeding.^[45] The forms for an adult guardianship in subdivisions (c) and (d) of Rule 5.904 include suggested modifications for cases in which a guardian advocate has been appointed.^[46]

Injunctions for Protection Against Exploitation

Rule 5.920 provides forms for the petition, temporary injunction, order denying injunction, and final injunction in a case involving a vulnerable adult and the protections offered under §825.1035.^[47] Although the statute contains a form petition, the rule amendments address procedural aspects of the injunction process.

Conclusion

The volunteers who serve on the Florida Probate Rules Committee were very active in 2019 and 2020, reconciling the procedural rules with statutory changes, responding to requests from the Florida Supreme Court for rule proposals, and addressing procedural issues encountered by Florida attorneys who practice in the areas of probate and guardianship law. Florida attorneys can expect to see more changes in 2021, so it is crucial to monitor the rule-related cases pending in the Florida Supreme Court, including the published notices of proposed rule changes, and to stay informed about the probate and guardianship legislation proposed during the 2021 legislative session. Volunteering to serve on the Florida Probate Rules Committee or one of the committees within the Real Property, Probate and Trust Law Section is a great way to stay up to date. Volunteering is not only educational, but fulfills attorneys’ professional duty to advocate for improvements to the law that benefit the citizens of Florida.

This column is submitted on behalf of the Real Property, Probate and Trust Law Section, William Thomas Hennessey III, chair; Douglas G. Christy and Jeff Goethe, editors; and Allison Archbold, guest editor.