In short: In Hernandez v. Hernandez, a guardian sued his brother for allegedly diverting their mother’s money and obtained a series of fee orders without giving that brother notice. The brother, who had filed a request for notice, moved to vacate the orders. On September 6, 2017, a divided Third District affirmed in a written opinion, holding he was not an interested person entitled to contest the fees. The Florida Supreme Court denied review on May 18, 2018.
The Facts
Eusebio Hernandez petitioned for a plenary guardianship over his 85-year-old mother and was appointed guardian in December 2014. With court approval, he then sued his brother Antonio, Antonio’s wife and son, alleging conspiracy, undue influence and abuse of a vulnerable adult, and claiming about $222,000 had been diverted from their mother.
The guardian periodically petitioned for attorney’s fees for the guardianship and the litigation, and the probate court approved them without notice to Antonio. Antonio had filed a request for notice and copies under Florida Probate Rule 5.060. He moved to vacate six fee orders, arguing he was an interested person entitled to notice. The probate court ruled he lacked standing and did not reach the merits.
At oral argument, the points below are what the lawyers argued, not findings by the court.
- Antonio argued that under the Florida Supreme Court’s decision in Hayes v. Guardianship of Thompson, a person who files a rule 5.060 request for notice is entitled to notice of fee petitions, and that section 744.441 required notice to next of kin for some of the petitions involved.
- He argued the fees, about $122,000 by his count, exceeded the roughly $85,000 in liquid assets the guardianship first reported, and that someone had to be able to challenge them.
- The guardian argued Hayes controls: the fees arose from Antonio’s own alleged misconduct, and a guardianship is not a platform for heirs to protect their inheritance. He said Antonio’s remedy was a petition to remove the guardian.
- The panel pointed out that in Hayes there had been findings of misconduct, while here there were only allegations, and asked whether denying standing would let a guardian silence an heir just by suing him.
The Decision
The Third District affirmed on September 6, 2017, in a written opinion reported at 230 So. 3d 119. Following Hayes, the majority held that whether someone is an interested person depends on the nature of the proceeding and the interest asserted, and that being next of kin is not enough.
The majority held Antonio was not an interested person entitled to contest the fee orders because his involvement in the guardianship was necessitated by his alleged mistreatment of the ward and misappropriation of her funds. Filing a rule 5.060 request and actively participating did not automatically give him standing to contest fees. The court said this balanced careful scrutiny of fees against endless challenges by people seeking to maximize an inheritance.
One judge dissented. He would have held Antonio was an interested person, because the allegations against him had never been adjudicated, unlike Hayes, and because the roughly $100,000 in fees would exceed the ward’s liquid assets of about $81,000. The trial court could still weigh Antonio’s possible bias.
Rehearing and rehearing en banc were denied on November 6, 2017. Antonio sought review in the Florida Supreme Court, which denied review on May 18, 2018.
The Law
Section 744.108 entitles a guardian and the guardian’s attorney to reasonable fees, paid from the guardianship property, and lists factors the court considers. Who besides the guardian and the ward may object depends on interested-person status.
Section 731.201 defines an interested person as one who may reasonably be expected to be affected by the outcome of the particular proceeding, and says the meaning may vary from time to time and must be determined according to the particular purpose of, and matter involved in, the proceeding.
Florida Probate Rule 5.060, on floridarules.net, lets an interested person file a written request for notice and copies of pleadings. Section 744.441 lists the acts a guardian may take only with court approval, and some of those petitions require notice to next of kin.
In Hayes v. Guardianship of Thompson, 952 So. 2d 498 (Fla. 2006), the Florida Supreme Court held that heirs may be interested persons in a fee proceeding depending on the circumstances, but not simply because they stand to inherit.
Lessons
- Filing a request for notice under rule 5.060 is a good step, but it does not guarantee standing to contest every guardianship order.
- A family member accused of exploiting the ward may find it hard to challenge fees generated by litigation against that family member.
- If you believe a guardian is wasting the ward’s money, a petition to remove the guardian or for judicial review may be a better path than objecting to fees as an heir.
- The dissent’s concern is worth remembering: fees can exceed the ward’s liquid assets, and someone needs to scrutinize them. Judges and guardians carry that duty.
Source: Hernandez v. Hernandez, 230 So. 3d 119 (Fla. 3d DCA Sept. 6, 2017), No. 3D16-1464; Fla. 3d DCA docket (review denied by the Florida Supreme Court May 18, 2018).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Can a Ward's Son Who Requested Notice Challenge Guardianship Fee Orders Entered Without It?
Go Deeper
- Guardianship Attorney Fees in Florida: Who Pays, How Much, and How to Object
- Sixty Thousand in Fees in a One-Year Guardianship, and Not Enough in the Account (Taylor v. Kelley)
- A Guardianship Fee Fight, a Bar Complaint and a Settlement That Never Happened (Jaffe v. Guardianship of Jaffe)
Frequently Asked Questions
Who can object to guardianship attorney's fees in Florida?
The guardian, the ward, the attorney requesting fees, and interested persons who have properly asked for notice may be heard, but interested-person status depends on the circumstances. In Hernandez v. Hernandez, the Third District held a son accused of exploiting his mother was not an interested person for the fee petitions tied to that litigation.
Does a ward's child automatically get notice of everything in a guardianship?
No. Some petitions require notice to next of kin, but being a child or heir does not by itself make someone an interested person for every proceeding. Filing a request under Probate Rule 5.060 helps but did not guarantee standing in Hernandez.
Can guardianship fees use up the ward's money?
Fees are paid from guardianship property, and the court must find them reasonable under section 744.108. In Hernandez, the dissent noted the fees sought would exceed the ward’s liquid assets. That is why careful review of fee petitions matters.
What can a family member do if a guardian is wasting the ward's assets?
Options can include asking the court to review the guardian’s actions or petitioning to remove the guardian. In Hernandez, the guardian’s lawyer argued that removal, not a fee objection, was the proper vehicle for the son’s concerns.
Talk to a Florida probate litigation lawyer
Weidner Law, P.A. handles Florida probate disputes and probate appeals from St. Petersburg. If you need a probate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
