PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Court Ordered Alternate Fiduciaries

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:

  1. ESTATES:
    (A) CURATOR: A curator is a person appointed by the court to take charge of the estate of a decedent until letters are issued or until a successor PR is appointed. The curator may be authorized to perform any duty or function of a PR. See §§731.201(8), 733.501(1), 733.503, and 733.5061, F.S., and Fla. Pro. R. 5.122(d). In short, a curator is a temporary appointee whose responsibility consists of safeguarding the assets of a decedent until a PR can be appointed.
    (B) ADMINISTRATOR AD LITEM: When it is necessary that the estate of a decedent be represented in a probate proceeding and there is no PR of the estate or the PR is or may be interested adversely to the estate or is enforcing his own debt or claim against the estate, the court may appoint an administrator ad litem for that particular proceeding. See §733.308, F.S. and Fla. Pro. R. 5.120(a). The administrator ad litem becomes solely responsible to the estate for the administration of that portion of its affairs entrusted to him by the court, and thus supplants in that regard the authority of the PR, who continues to be responsible for the administration of all other aspects of the estate’s business. See Woolf v. Reed, 389 So. 2d 1026 (Fla. 3rd DCA 1980).
  2. GUARDIANSHIPS:
    (A) GUARDIAN AD LITEM: When it is necessary that a ward be represented in a guardianship proceeding and there is no guardian of the ward, or the guardian is or may be interested adversely to the ward, or is enforcing the guardian’s own debt or claim against the ward, the court may appoint a guardian ad litem to represent the ward for that particular proceeding. See §§744.102(10) and 744.391, F.S. and Fla. Pro. R. 5.120(a).
    * §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 interests of an incapacitated person, an unborn or unascertained person, a minor or any other person otherwise under a legal disability, or a person whose identity or address is unknown.”
    * §744.3025 Claims of minors – “(1)(a) The court may appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s portion of the claim in a case in which a minor has a claim for personal injury, property damage, wrongful death, or other cause of action in which the gross settlement of the claim exceeds $15,000 if the court believes a guardian ad litem is necessary to protect the minor’s interest.”
    * Fla. Pro. R. 5.636 Settlement of Minors’ Claims [in excess of $50,000] – “(d) Guardian Ad Litem. The court shall appoint a guardian ad litem on behalf of a minor, without bond or notice, with respect to any proposed settlement that exceeds $50,000 and affects the interests of the minor, if: (1) there is no court-appointed guardian of the minor; (2) the court-appointed guardian may have an interest adverse to the minor; or (3) the court determines that representation of the minor’s interest is otherwise inadequate.” See also §744.3025(b), F.S.
    (B) EMERGECY TEMPORARY GUARDIAN: A court, prior to appointment of a guardian but after a petition for determination of incapacity has been filed, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. See §744.3031(1), F.S. and Fla. Pro. R. 5.648.
  3. 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.”
  4. 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.