PBCBA BAR BULLETINS pbcba_bulletin_sept2018 | Page 13

PROBATE C o r n e r
Court Ordered Alternate Fiduciaries
DAVID M. GARTEN
When it is necessary that an estate, trust,
or guardianship be represented and there
is no fiduciary, the fiduciary may have an
adverse interest, or the representation is
inadequate, the Court can appoint one or
more of the following alternate fiduciaries:
§744.303 Repesentation – “(4) If the court
determines that representation of the
interest would otherwise be inadequate,
the court may, at any time, appoint a
guardian ad litem to represent the intere sts
of an incapacitated person, an unborn or
unascertained person, a minor or any other
I. ESTATES:
person otherwise under a legal disability,
or a person whose identity or address is
(A) CURATOR: A curator is a person unknown.”
appointed by the court to take charge of the
estate of a decedent until letters are issued ●§744.3025 Claims of minors – “(1)(a) The
or until a successor PR is appointed. The court may appoint a guardian ad litem
curator may be authorized to perform any to represent the minor’s interest before
duty or function of a PR. See §§731.201(8), approving a settlement of the minor’s
733.501(1), 733.503, and 733.5061, F.S., and portion of the claim in a case in which
Fla. Pro. R. 5.122(d). In short, a curator is a a minor has a claim for personal injury,
temporary appointee whose responsibility property damage, wrongful death, or
consists of safeguarding the assets of a other cause of action in which the gross
decedent until a PR can be appointed.
settlement of the claim exceeds $15,000 if
the court believes a guardian ad litem is
(B) ADMINISTRATOR AD LITEM: When it necessary to protect the minor’s interest.”
is necessary that the estate of a decedent
be represented in a probate proceeding ●Fla. Pro. R. 5.636 Settlement of Minors’
and there is no PR of the estate or the PR Claims [in excess of $50,000] – “(d) Guardian
is or may be interested adversely to the Ad Litem. The court shall appoint a guardian
estate or is enforcing his own debt or claim ad litem on behalf of a minor, without bond
against the estate, the court may appoint an or notice, with respect to any proposed
administrator ad litem for that particular settlement that exceeds $50,000 and affects
proceeding. See §733.308, F.S. and Fla. Pro. the interests of the minor, if: (1) there is no
R. 5.120(a). The administrator ad litem court-appointed guardian of the minor; (2)
becomes solely responsible to the estate the court-appointed guardian may have
for the administration of that portion of its an interest adverse to the minor; or (3) the
affairs entrusted to him by the court, and court determines that representation of the
thus supplants in that regard the authority minor’s interest is otherwise inadequate.”
of the PR, who continues to be responsible See also §744.3025(b), F.S.
for the administration of all other aspects of
the estate’s business. See Woolf v. Reed, 389 (B) EMERGECY TEMPORARY GUARDIAN:
So. 2d 1026 (Fla. 3rd DCA 1980).
A court, prior to appointment of a guardian
but after a petition for determination of
II. GUARDIANSHIPS:
incapacity has been filed, may appoint an
emergency temporary guardian for the
(A) GUARDIAN AD LITEM: When it is person or property, or both, of an alleged
necessary that a ward be represented in a incapacitated person. The court must
guardianship proceeding and there is no specifically find that there appears to be
guardian of the ward, or the guardian is or imminent danger that the physical or
may be interested adversely to the ward, mental health or safety of the person will
or is enforcing the guardian’s own debt be seriously impaired or that the person’s
or claim against the ward, the court may property is in danger of being wasted,
appoint a guardian ad litem to represent misappropriated, or lost unless immediate
the ward for that particular proceeding. See action is taken. See §744.3031(1), F.S. and
§§744.102(10) and 744.391, F.S. and Fla. Pro. Fla. Pro. R. 5.648.
R. 5.120(a).
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III. TRUSTS:
SPECIAL FIDUCIARY:
●§736.0704
Vacancy
in
trusteeship;
appointment of successor - “(5) The
court may appoint an additional trustee
or special fiduciary whenever the court
considers the appointment necessary for
the administration of the trust, whether or
not a vacancy in a trusteeship exists or is
required to be filled.”
●§736.0802 Duty of loyalty - “(9) The court
may appoint a special fiduciary to act with
respect to any proposed transaction that
might violate this section if entered into by
the trustee.”
●§736.1001 Remedies for breach of trust - “(2)
To remedy a breach of trust that has occurred
or may occur, the court may:…(e) Appoint a
special fiduciary to take possession of the
trust property and administer the trust”.
●§736.0706 Removal of trustee - “(3) Pending
a final decision on a request to remove
a trustee, or in lieu of or in addition to
removing a trustee, the court may order such
appropriate relief under s. 736.1001(2) as may
be necessary to protect the trust property or
the interests of the beneficiaries.”
IV. CONSERVATORSHIP:
A conservator
may be appointed when any resident of
this state, or any person owning property
herein, disappears under circumstances
indicating that he or she may have died,
either naturally, accidentally or at the hand
of another, or may have disappeared as the
result of mental derangement, amnesia
or other mental cause. The court has
jurisdiction to appoint a conservator of the
estate of an absentee upon a showing, in
part, that: (a) The absentee has not provided
an adequate power of attorney authorizing
another to act in his or her behalf with
regard to such property or interest; and (b)
A necessity exists for providing care for
the property or estate of the absentee. See
§§710.102(4) and 747.02, F.S.