Acuna v. Dresner

Summary

The Florida Third District Court of Appeal held that a ward's declaration naming preneed guardians creates a rebuttable statutory presumption favoring their appointment. The probate court abused its discretion by appointing an accountant as plenary guardian without substantial competent evidence overcoming that presumption and by misinterpreting the declaration as requiring unanimity among the ward's daughters; the court affirmed the attorney-fee and judicial-disqualification rulings.

Holdings

1. When a ward has designated a preneed guardian in a written declaration, the statutory rebuttable presumption favoring that guardian can be overcome only by substantial, competent evidence that the designee is unqualified, unwilling, unable, or otherwise unsuitable to serve.
2. The declaration did not require the three daughters to act unanimously in order to be appointed or serve as guardians; it permitted guardianship decisions to be made by majority rule.
3. The probate court abused its discretion by appointing Dresner as plenary guardian because the record lacked substantial, competent evidence overcoming the statutory presumption in favor of Shirley's designated preneed guardians.
4. The appellants lacked standing to challenge the order awarding attorney's fees to the attorney ad litem because they had not filed a written request for notice under Florida Probate Rule 5.060.
5. The motion to disqualify was properly denied as untimely because it was not filed within the reasonable period, not exceeding ten days, after discovery of the facts supporting disqualification.

Questions Presented

1. Whether the probate court properly appointed Dresner as plenary guardian despite Shirley's declaration naming her daughters as preneed guardians.
2. Whether the evidence was sufficient to rebut the statutory presumption favoring the designated preneed guardians.
3. Whether the appellants had standing to challenge the attorney ad litem's fee award.
4. Whether the motion to disqualify the trial judge was timely.

Disposition

reversed_and_remanded