Summary
The Florida Fourth District Court of Appeal considered whether a guardian could access a joint brokerage account held by an incapacitated ward and the ward’s spouse to pay guardianship expenses. The court held that the account was a joint tenancy with right of survivorship, rejected application of the tenancy-by-the-entireties presumption, and affirmed the guardian’s authority to access the account for authorized expenses, including after the ward’s death.
Topics
Practice areas
Questions Presented
- Whether the account was presumed to be held as a tenancy by the entireties under Beal Bank when the guardianship proceeding involved the ward and his spouse rather than a debtor and third-party creditor.
- Whether the evidence established that the account was a joint tenancy with right of survivorship.
- Whether the guardian could access the survivorship account after the ward's death to pay authorized guardianship administration expenses, including guardian and attorney fees.
- Whether the circuit court properly authorized payment of pre-death guardianship expenses from the account.
Holdings
- The Beal Bank presumption that an account titled in the names of spouses is held as a tenancy by the entireties does not apply in a guardianship proceeding or in litigation in which the spouses are opposing parties. The account was properly characterized as a joint tenancy with right of survivorship.
- A guardian may make withdrawals from a joint account with right of survivorship to pay the ward's necessities, including professional fees necessary to maintain the guardianship.
- The ward's death did not terminate the guardian's ability to access the account for legitimate guardianship expenses incurred before and during the winding up of the guardianship.
Key quotations
“Because the Oppenheimer Account was a joint tenancy with right of survivorship, the court could authorize the Guardian to access it to pay authorized expenses, including the Guardian's fee and the fees for the Guardian's attorneys.” (153 So. 3d at 920)
“It is as if Chapter 744 created a tacit equitable lien on a survivorship account to pay legitimate expenses of the guardianship.” (153 So. 3d at 920-21)
Factual background
Jack Olshen sold his solely owned business in 2010 for approximately $1.8 million, and the proceeds were deposited into a brokerage account titled in the names of Jack and Irene Olshen as joint tenants with right of survivorship. After Olshen was adjudicated incapacitated and Romano was appointed guardian, the account constituted approximately 89 percent of the guardianship estate. The guardian and his attorneys incurred fees and other expenses for Olshen's care and guardianship administration, but Olshen died before the fees and expenses could all be paid. Irene opposed access to the account, asserting that it was held as a tenancy by the entireties and that her survivorship interest extinguished claims against the account.
Procedural history
The circuit court appointed Romano guardian of Jack Olshen's person and property after finding Olshen incapacitated. After Olshen died, the circuit court entered one order denying access to the joint brokerage account and later entered two orders authorizing payment of pre-death guardianship fees and expenses from that account. The Fourth District reversed the order denying access, affirmed the two payment orders, and remanded for further proceedings.
Remand instructions
Reverse the order in Case No. 4D12-451, affirm the orders in Case Nos. 4D12-2466 and 4D13-1083, and remand to the circuit court for further proceedings.