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In this relatively recent opinion from the Fifth District Court of Appeal, Penelope Jones was appointed by the guardianship trial court as the guardian of her father, and in connection with this guardianship proceeding, Penelope sought guardian compensation. The trial court denied compensation on the basis that she had “an obligation to provide such services for the ward without compensation due to the father/daughter familial relationship between the Ward and the guardian.”
Penelope appealed.
Florida Statute 744.108 provides that a guardian is entitled to a reasonable fee for services rendered to the ward, and outlines the criteria for the court to consider in guardian fee determinations:
744.108 Guardian and attorney fees and expenses.—
(1) A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.
(2) When fees for a guardian or an attorney are submitted to the court for determination, the court shall consider the following criteria:
(a) The time and labor required;
(b) The novelty and difficulty of the questions involved and the skill required to perform the services properly;
(c) The likelihood that the acceptance of the particular employment will preclude other employment of the person;
(d) The fee customarily charged in the locality for similar services;
(e) The nature and value of the incapacitated person’s property, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person;
(f) The results obtained;
(g) The time limits imposed by the circumstances;
(h) The nature and length of the relationship with the incapacitated person; and
(i) The experience, reputation, diligence, and ability of the person performing the service.
(3) In awarding fees to attorney guardians, the court must clearly distinguish between fees and expenses for legal services and fees and expenses for guardian services and must have determined that no conflict of interest exists.
(4) Fees for legal services may include customary and reasonable charges for work performed by legal assistants employed by and working under the direction of the attorney.
(5) All petitions for guardian and attorney fees and expenses must be accompanied by an itemized description of the services performed for the fees and expenses sought to be recovered.
(6) A petition for fees or expenses may not be approved without prior notice to the guardian and to the ward, unless the ward is a minor or is totally incapacitated.
(7) A petition for fees shall include the period covered and the total amount of all prior fees paid or costs awarded to the petitioner in the guardianship proceeding currently before the court.
(8) When court proceedings are instituted to review or determine a guardian’s or an attorney’s fees under subsection (2), such proceedings are part of the guardianship administration process and the costs, including costs and attorney fees for the guardian’s attorney, an attorney appointed under s. 744.331(2), or an attorney who has rendered services to the ward, shall be determined by the court and paid from the assets of the guardianship estate unless the court finds the requested compensation under subsection (2) to be substantially unreasonable.
(9) The court may determine that a request for compensation by the guardian, the guardian’s attorney, a person employed by the guardian, an attorney appointed under s. 744.331(2), or an attorney who has rendered services to the ward, is reasonable without receiving expert testimony. A person or party may offer expert testimony for or against a request for compensation after giving notice to interested persons. Reasonable expert witness fees shall be awarded by the court and paid from the assets of the guardianship estate using the standards in subsection (8).
Contrary to the trial court’s decision here in Jones, where there is a close familial relationship between the guardian and the ward, such as a father/daughter relationship here, the guardian is not entitled to compensation for “merely doing what any family member would do for their relative under the circumstances.” See In re Guardianship of Sapp, 868 So. 2d 687, 694 (Fla. 2d DCA 2004). However, a family member serving as guardian is still entitled to compensation for reasonable and necessary services performed “within the scope of his or her duties as a guardian.”
Accordingly, the Fifth District Court of Appeal therefore reversed the trial court, and remanded the matter back to the trial court to determine the services that would reasonably be performed by a professional or other non-family member guardian which were necessary to discharge a guardian’s duty to the ward. The appellate court further noted that a guardian is not entitled to receive compensation under the statute for “merely doing what any daughter does.” The services by the guardian have to be documented and the Court will evaluate those to assure that the services were indeed performed.
If you are faced with a family member serving as a guardian, the services performed and appropriateness of fees sought under Fla. Stat. 744.108 should be discussed in detail with your trusted guardianship lawyer.