Merkle v. Guardianship of Jacoby

Summary

The Florida Second District Court of Appeal held that an order requiring a guardian to refund fees paid from a guardianship estate was effectively a surcharge. Because the guardian had not received formal notice or waived that notice, the court reversed the refund order and remanded for further proceedings without addressing the merits of the alleged excessive compensation.

Holdings

1. An order requiring a guardian to refund money to the guardianship estate because of an alleged breach of fiduciary duties is tantamount to an order surcharging the guardian.
2. A guardian may not be surcharged absent service of formal notice required by Florida Probate Rule 5.025(d), unless the guardian has waived formal notice in writing under Florida Probate Rule 5.180(a).

Questions Presented

1. Whether an order requiring a guardian to refund money to the guardianship estate because of allegedly excessive compensation constitutes a surcharge.
2. Whether a court may enter such a surcharge order without serving formal notice on the guardian or obtaining a written waiver of formal notice.

Disposition

reversed_and_remanded