The following article was recently published in the Daily Business Review and the Summer 2014 edition of The Elder Law Advocate.

The Fourth District Court of Appeal issued an interesting opinion in March of this year in the case of Romano v. Olshen, —So. 3d— (March 12, 2014). The case invoked the laws of guardianship and joint accounts. The case involved the ability of the guardian and the guardian’s counsel to recover guardianship administration fees and expenses from a joint brokerage account owned by the ward and his spouse, with entitlement arising prior to the ward’s death but collection transpiring after the ward’s death.

The ward had sold his business of roughly 40 years, and the sale proceeds were deposited into an Oppenheimer account titled jointly with rights of survivorship between the ward and his wife, presumably as joint tenants by the entirety. The ward filed for divorce, and the wife responded with a petition to determine her husband’s capacity as well as for the appointment of an emergency temporary guardian. The incapacity proceedings took hold and resulted in a stay on the divorce proceedings for the required three years. A professional guardian was appointed. The Oppenheimer account was reported by the guardian of the property on the inventory for the guardianship. The account, represented almost the entire assets of the ward and of the guardianship estate. The case was contentious and heavily litigated, and substantial fees and costs were generated by all parties, as were significant care expenses for the ward, whose health declined during the course of the case. He eventually died.

Promptly after the ward’s death, the guardian filed a petition to use the Oppenheimer account to pay outstanding guardianship expenses and to close out the guardianship proceedings. Simply put, the guardian sought to enforce an equitable lien on the joint brokerage account. Not surprisingly, among other things, the wife argued that she was entitled to the whole of the Oppenheimer account as the surviving joint owner and that the account was outside the reach of the guardianship estate because the ward had expired and the account vested in her upon his expiration.

The court’s decision includes a detailed discussion regarding guardianship proceedings as equitable proceedings. Relying on the broad discretion afforded guardianship courts as courts of equity, the court found that while the Oppenheimer account was properly viewed as a joint tenancy with a right of survivorship in the wife, the guardianship statute permitted the trial court, in equity, to authorize payments for the ward’s necessary expenses even after his death. The power of this reasoning cannot be overstated. It is notable that the court states, “Historically, courts of equity came into being in order to provide a forum for the granting of relief in accordance with the broad principles of right and justice in cases where the restrictive technicalities of the law prevented the giving of relief” Hedges v. Lysek, 84 So. 2d 28, 31 (Fla.1955).

The outcome in the Olshen case makes one wonder whether the case could have broader implications under varying fact patterns. For instance, perhaps the reasoning could be extrapolated to other types of assets that normally pass by operation of law, contract or otherwise upon death. Or in the context of the joint account, perhaps the identity of the joint account holder could be expanded beyond that of a spouse. In other words, does the type of asset or the nature of the account matter? Or the type of creditor and the reason for the debt owed? Where are the lines of equity drawn? In Olshen, the court reasoned:

If the ward’s death rendered a survivorship account inaccessible to a guardian of property, then serving as a guardian or the guardian’s attorney would be a risky financial proposition … compensation should not require a race to the courthouse to secure a court order prior to a ward’s death. Severe restrictions on access to survivorship accounts that are part of the guardianship estate would deter many qualified persons from serving as guardians, a result contrary to the public purpose of protecting wards.

These are valid public policy concerns. These types of concerns arise in other areas of the law as well. The court went so far in its decision to suggest that the Florida Legislature should consider enacting legislation which would permit access to a tenancy by the entireties bank or brokerage account for necessary expenses of the guardianship estate even where the joint spousal owner disagrees. This would address the issue that arose in Olshen. But just think of the wider possibilities…