So you’ve been appointed a Guardian of a Ward; is your position one of tenure? No.
In fact the position of a guardian is one of fiduciary. As explained in last week’s article, a fiduciary holds to a standard of trust and confidence to act in all situations for the benefit of the Ward. This means that there can never be any form or hint of self dealing when handling the Ward’s property or failure to protect the Ward. When a guardian fails in their duties to protect the Ward’s property or their person, the Court will relieve them of their appointment. Naturally, prior to a guardian being relieved of their position, they will have the opportunity to address the charges before a judge of the Florida’s Circuit Court.
To institute proceedings against a guardian for breach of their duties, a person must file a petition with the Court for their removal. The petition must allege reasons for the guardian’s breach of their duty. The legislature has formalized reasons why a guardian can be relieved of his or her duties, a few of them are:
- Fraud in obtaining their appointment
- An incapacity or illness, including substance abuse, which renders the guardian incapable of discharging his or her duties;
- Failure to account for property sold or to produce and exhibit the Ward’s assets when so required;
- The wasting, embezzlement, or other mismanagement of the Ward’s property;
- Development of a conflict of interest between the Ward and the guardian;
- A failure to comply with the rules for timely filing the initial and annual guardianship reports; and,
- A failure to fulfill the guardianship education requirements.
The above reasons for removal are only a few of the means recognized by the Court for removal of a Ward. Suffice it say, whenever a guardian fails to meet statutory requirements or wastes the Ward’s assets, the guardian is subject to removal. A Guardian will ordinarily be removed without any counter argument whenever he or she self deals the Ward’s property for their personal benefit; is convicted of a felony; or, becomes incapacitated. A discussion of a few of the above mentioned reasons recognized as grounds for removal follows.
- Fraud in obtaining a Ward’s appointment as a guardian typically occurs where the ward fails to disclose pertinent information about their background that would make them ineligible for such appointment. Examples include, prior bankruptcy, felony, conviction for child abuse or other abusive behavior, present medical service provider for the Ward or prior drug or alcohol abuse.
- Failing to account for property sold normally occurs when the Guardian sells the Wards property (usually personal property) and fails to keep track of the inventoried value of the item sold, its sale price and safely place the proceeds into the Ward’s guardianship account. Although situations like garage sales where a few dollars go missing may seem innocent, the fact is that the money is the Ward’s and must be protected no matter how minor. Experience suggests that prior to conducting any sale you should inventory each item, its appraised or estimated value based on some standard, photograph the article, and upon its sale, mark it down. Most importantly, protect the proceeds; don’t even think about using 75 cents to purchase a soft drink during the garage sale.
Another reason that is grounds for a guardian’s removal is the failure to timely file the required reports. As stated in an earlier article, the guardian is to provide an initial set of reports regarding the Ward’s property and person within the first 60 days of guardianship. After the initial reports, the guardian is to provide annual reports of the Ward’s property and person. To a certain degree, the court is somewhat tolerant when a guardian fails to meet deadlines regarding the filing of their reports. However, continual misses constitutes definite grounds for removal and should not be tolerated.
The biggest reason why a guardian will absolutely be relieved of their duties occurs when the Ward’s property is mismanaged, embezzled or used for the personal benefit of the guardian. The reason for removal, when there is mismanagement of the Ward’s property should be obvious, but all to often, by the time the property is found missing or mismanaged, there generally will have been substantial loss to the Ward’s property. Although the Guardian will be liable for the losses, in many cases the Ward is simply judgment proof and the Ward becomes the real loser.
So what can be done to protect a Ward’s interest? If you are a lineal descent of the Ward and are concerned about the well being of the Ward’s assets and their person, make certain that the court grants you the right to receive annual reports and that the annual reports of the person are followed. Analyze the annual reports of the property for investment growth. If no growth is possible because the Ward’s monthly expenses exceed their income, check to see if the expenses are proper and not simple waste. Most importantly, demand that a bond be put in place for the value of the Ward’s property and that it is annually renewed.
By this time it should be well understood that as a guardian, you hold a position of trust and confidence and if that trust or confidence is breached you will be subject to removal. In the event a guardian is removed he or she will likely be personally liable for any harm or loss to the Ward’s person or property.
Next week we’ll begin to explore the term homestead and what it means to you.