Is My Judgment in Your Best Interest? How Decisions Are Made in Guardianships and a Suggested Reform.

• Author: Virgil, J. Eric

When Glenda Martinez and J. Alan Smith met in 2008 through a social media website, little did they know how that meeting would change the course of Florida guardianship law. The couple was engaged in 2009, but in January 2010, Smith was involved in an automobile accident in which he suffered head trauma. As a result, his daughter filed a petition to appoint a guardian of the person and property for Smith. That filing began seven long years of court proceedings and litigation that resulted in multiple appellate decisions on a variety of guardianship issues and a Florida Supreme Court decision on a ward's right to marry. (1) The Smith cases, especially the recent Florida Supreme Court case, are a good illustration of the clash between two strong public policies, namely the policy of protecting vulnerable persons from exploitation and harm versus the policy of upholding and preserving the rights, dignity, and autonomy of vulnerable persons as much as possible, and to have the court's intervention in cases of incapacity be limited to the greatest extent feasible. (2)

This clash of public policies has meant that guardianship matters have been frequently litigated in Florida over the past decade. These disputes have led to substantial changes in Florida guardianship law, in particular as set forth in F.S. Ch. 744. (3) In light of the changing legal climate related to guardianships, it is vitally important for attorneys and guardians to understand how guardians should make decisions on behalf of wards and by what standard these decisions should be made.

Starting Point--The Guardian as a Fiduciary

Guardians are appointed by the circuit court to exercise legal rights that have been removed from incapacitated persons and delegated to the guardian. (4) A guardian is a fiduciary and owes fiduciary duties to the ward. (5) Under F.S. [section]744.361, the guardian's duties to the ward include acting in good faith and not in a manner that is contrary to the ward's best interests under the circumstances.

Since the guardian is a fiduciary, another duty owed by a guardian to the ward is the duty of loyalty. (6) In the guardianship context, though, what does that mean? Must the guardian attempt to determine the desires of the ward and follow those desires, even if they are not in the ward's best interests? How should a guardian even determine a ward's desires, given that the ward has at least some degree of incapacity? Can the guardian disregard the ward's desires if those desires are unwise or even harmful to the ward? Where does "loyalty" lie with regard to these questions?

As we will see, the guardian is expected to be loyal to the ward and many times that means determining the ward's desires and then doing what the ward would have wanted, even if that is not what the guardian would do or what a "reasonable person" would do in the same situation. However, under current Florida law, there are also many decisions in which the guardian and the court will be charged not with determining what the ward desired and would have wanted, but rather what is in the best interests of the ward. This is similar to a parent acting on behalf of a child and the guardian is to make an independent decision on behalf of the ward rather than acting as the guardian believes the ward would have acted.

What Potential Decision-Making Standards Could Apply?

In order to better understand the decision-making standards, it is useful to note that there are at least seven possible standards that could apply to how a guardian or court should make or review a decision on behalf of the ward: 1) Do what the ward would have done; 2) do what is in the ward's best interests; 3) do what is not contrary to the ward's best interests; 4) do what is best for society; 5) do what is best for those dependent upon the ward or those in closest relationship with the ward, such as a spouse; 6) do what the guardian believes is best based on the guardian's experience and values; and 7) do what the judge believes is best based on the experience and values of the judge. (7)

The first two standards are the substituted-judgment standard and the best interest standard and are regularly set forth in F.S. Ch. 744 and in caselaw. The third standard arises in the context of whom to appoint as guardian, particularly when there is a preneed designation, but will not be discussed further here since this article concentrates on decisions to be made during the pendency of the guardianship itself. (8) The fourth and fifth standards have arisen by implication in cases (9) that are discussed later in this article. Finally, the sixth and seventh standards are possible options but are not supported by Florida law. (10)

The Two Primary Decision-Making Standards: Substituted Judgment and Best Interest

Once a guardian is appointed to exercise rights removed from a ward and delegated to the guardian, decisions on behalf of the ward will inevitably arise that will require the guardian to make a choice between several alternatives. Some of these decisions relate to life and death situations while others are routine decisions on behalf of the ward, but in each scenario, the question arises: "How does a guardian make decisions on behalf of the ward?" In Florida, there are two primary decision-making standards: the best-interest standard and the substituted-judgment standard. (11) This article explains these standards and then sets forth when and how guardians should use each standard in exercising their authority on behalf of a ward. In addition, in order to clarify the law for guardianship stakeholders and to improve the decision-making process, the authors propose that Florida enact a new statutory decision-making standard for all non-health-care decisions made by guardians on behalf of their wards. The proposed standard would not put the guardian in the position of choosing either substituted judgment or best interest but rather would place guardianship decisionmaking on a continuum that incorporates both standards to protect the ward's autonomy while still allowing the guardian to consider what is objectively wise for the benefit of the ward.

Under current Florida law, in each situation in which a guardian has to make a decision on behalf of their ward, the guardian must decide whether the decision should be made using the best-interest standard or the substituted-judgment standard. The best-interest standard requires the guardian to choose the alternative that produces the greatest good or benefit for the ward. (12) The substituted-judgment standard requires the guardian to choose the alternative that the ward would have chosen if still able to make decisions. (13) Florida statutory and caselaw apply both standards, (14) depending upon the situation, so how can a guardian know which standard to apply?

Rule 58M-2.009 and Standards of Practice for Professional Guardians

The recent adoption of Rule 58M-2.009 Standards of Practice by the Department of Elder Affairs, Office of the Public and Professional Guardians (OPPG) adds further complexity to this issue due to its...