Citations
- 199 So. 3d 835
Full opinion text
PER CURIAM.
We have for consideration the regular-cycle report of proposed amendments to the Florida Probate Rules (Rules), filed by the Florida Probate Rules Committee (Committee). See Fla. R. Jud. Admin 2.140(b). We have jurisdiction. See art. V, § 2(a), Fla. Const.
BACKGROUND
The Committee proposes amendments to rules: 5.040 (Notice); 5.041 (Service of Pleadings and Documents); 5.042 (Time); 5.080 (Discovery and Subpoena); 5.845 (Accountings Other Than Personal Representatives’ Final Accountings); 5.346 (Fiduciary Accounting); 5.550 (Petition to Determine Incapacity); 5.560 (Petition for Appointment of Guardian of an Incapacitated Person); 5.620 (Inventory); 5.690 (Initial Guardianship Report); and 5.696 (Annual Accounting). The Board of Governors of The Florida Bar unanimously approved these proposals.
The Committee published its proposed amendments in The Florida Bar News before submitting them to the Court. It received one comment but ultimately concluded that no additional amendments were necessary. After the Committee’s report was filed, the Court published the amendments for comment. We received one comment from Mr. Franklin Burr. The Committee filed a response to the comment, recommending no changes to its rules proposals.
We have fully considered the Committee’s proposed amendments, the comment, and the Committee’s response. As discussed in this opinion, we adopt the amendments as proposed, with two exceptions: we have revised the Committee’s proposals to amend rules 5.550 (Petition to Determine Incapacity) and 5.560 (Petition for Appointment of Guardian of an Incapacitated Person). We discuss the more significant amendments to the Probate Rules below.
AMENDMENTS
We first amend rule 5.040 (Notice), as proposed by the Committee, to add a new subdivision (e) (In the Manner Provided for Service of Formal Notice). This subdivision provides that if a document is served in the manner provided for service of formal notice, service will be deemed complete when the document is received and proof of service shall be made in the manner set forth in rule 5.040(a)(4).
We next amend rule 5.042(d) (Time; Additional Time after Service by Mail or Email), as proposed by the Committee, to clarify that Rule of Judicial Administration 2.514(b) (Computing and Extending Time; Additional Time after Service by Mail or E-Mail) shall apply to thé computation of time after service in proceédings under these Probate Rules, except for those documents served by formal notice or in the manner provided for service of formal notice.
Rule 5.080, now titled “Discovery, Subpoena, and Taking Testimony,” is amended in subdivision (a) (Adoption of Civil Rules) to authorize applying Rule of Civil Procedure 1,451 (Taking Testimony).in all probate and guardianship proceedings.
. Rule. 5.346 (Fiduciary Accounting) is amended, as recommended by the Committee, to clarify that the rule does not apply to guardian accountings. Guardian accountings are addressed separately in rule 5.696 (now titled “Guardian Accounting”).
We amend rules 6.550(a) (Petition to Determine Incapacity; Contents) and 5.560(a) (Petition for Appointment of Guardian of an Incapacitated Person; Contents) to require that a petition to determine incapacity or a petition seeking appointment of a guardian for an incapacitated person must state whether there are possible alternatives to guardianship known to the petitioner. In his comment, Mr. Franklin Burr argues in part that these rules should require the petitioning party to identify any known surrogates, in addition to trust agreements, powers of attorney, or advance directives. We agree, and we have revised the Committee’s proposal to include a surrogate in the list of possible alternatives to guardianship.
Finally, we amend rule 5.696, now titled “Guardian Accounting,” addressing the requirements for guardian accountings required under chapter 744, Florida Statutes (other than simplified accountings permitted in section 744,3679). As amended, subdivision (b) (Contents) now provides that a guardian accounting must include the following items: (1) a statement of the starting balance for all assets on hand at the beginning of the accounting period (or, if none, the value of assets on the inventory); (2) a full account of all receipts and disbursements of the ward’s property over which the guardian has control since the last accounting (or from the issuance of the letters of guardianship); (3) a schedule of the assets at the end of the accounting period; and (4) in the case of an annual accounting, a copy of the annual or year-end statement for all of the ward’s cash accounts. Subdivision (c) (Accounting Standards) of rule 5.696 outlines the standards that should be used in guardian accountings for transactions occurring on or after January 1, 2017. Subdivision (c)(1) provides that accountings shall be stated in a manner that is understandable to persons unfamiliar with practices and terminology that are unique to the administration of guardianships. Subdivision (c)(2) requires that the accounting begin with a concise summary of its purpose and content. Subdivision (c)(3) states that the accounting must contain sufficient information disclosing all significant transactions during the accounting period. Subdivision (c)(4) provides that the accounting shall contain two values in the schedule of assets: the asset acquisition value or carrying value, and the estimated current value. And subdivision (c)(5) states that gains and losses must be shown separately in the same schedule. Also in rule 5.696, we add new subdivision (d) (Accounting Format), which indicates that a model format for a guardian accounting is included in Appendix A; new subdivision (e) (Verification), requiring that all accountings shall be verified by the guardian; and a new committee note. In addition to the rule, we adopt Appendix A, which is accompanied by a summary form and Schedule A (Receipts), Schedule B (Disbursements), Schedule C (Capital Transactions and Adjustments), and Schedule D (Assets on Hand at Close of Accounting Period), and Appendix B outlining “Guardian Accounting Principles.”
CONCLUSION
Accordingly, we amend the Florida Probate Rules as reflected in the appendix to this opinion. New language is indicated by underscoring, and deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 2017, at 12:01 a.m.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and , PERRY, JJ., concur.
CANADY, J., concurs in part and dissents in part with an opinion.
CANADY, J.,
concurring in part and dissenting in part.
I concur with the rule changes adopted by the majority, except that I would not adopt the amendments to rule 5.696, which contain reporting requirements that go beyond those contained in section 744.3678, Florida Statutes, the governing substantive law.
APPENDIX
RULE 5.040. NOTICE
(a) Formal Notice.
(l)-(3) [No Change]
(4) Service of formal notice pursuant to subdivision (a)(3)(A) shall be complete on receipt of the notice. Proof of service shall be by verified statement of the person giving the notice; and there shall be attached to the verified statement the signed receipt or other evidence satisfactory to the court that delivery was made to the addressee or the addressee’s agent,
(5) [No Change]
(b)-(d) [No Change]
(e) In the Manner Provided for Service of Formal Notice. If a document is served in the manner provided for service of formal notice, service is completed on receipt of the document, and proof of service shall be in the manner set forth in subdivision (a)(4).
Committee Notes
[No Change]
Rule History
1975-2012 Revisions: [No Change]
2016 Revision: Subdivision (e) created to specify when service in the manner provided for - service of formal notice is completed. Committee notes revised.
Statutory References
[No Change]
Rule References
[No Change]
RULE 5.041. SERVICE OF PLEADINGS AND DOCUMENTS
[No Change]
Committee Notes
Derived from Florida Rule of Civil Procedure 1.080. Regulates the service of pleadings and papersdocuments in proceedings on petitions or motions for determination of rights. It is not applicable to every pleading and paperdocument served or filed in the administration of a guardianship or decedent’s estate.
Rule History
1984-2012 Revisions: [No Change]
2016 Revision: Committee notes revised.
Statutory References
ch. 39, Fla. Stat. Proceedings relating to children.
ch. 48, Fla. Stat. Process and service of process.
ch. 61, Fla. Stat. Dissolution of marriage; support; time-sharing.
ch. 63, Fla. Stat. Adoption.
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§ 731.201, Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 733.212, Fla. Stat. Notice of administration; filing of objections.
§ 733.2123, Fla. Stat. Adjudication before issuance of letters.
§ 733.705(2), (4), Fla. Stat. Payment of and objection to claims.
ch. 743, Fla. Stat. Disability of nonage of minors removed.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.3201, Fla. Stat. Petition to determine incapacity.
§ 744.331, Fla. Stat. Procedures to determine incapacity.
§ 744.3371, Fla. Stat. Notice of petition for appointment of guardian and hearing.
§ 744.447, Fla. Stat. Petition for authorization to act.
ch. 751, Fla. Stat. Temporary custody of minor children by extended family.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.030 Attorneys.
Fla. Prob. R. 5.040 Notice.
Flá. Prob. R. 5.042 Time.
Fla. Prob. R. 5.150(c) Order requiring accounting.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.240(a) Notice of administration.
Fla. Prob. R. 5.340(d) Inventory.
Fla. Prob. R. 5.550 Petition to determine incapacity.
Fla. Prob. R. 5.560 Petition for appointment of guardian of an incapacitated person.
Fla. Prob. R. 5.649 Guardian advocate.
Fla. Prob. R. 5.681 Restoration of rights of person with developmental disability.
Fla. R. Civ. P. 1.080 Service of pleadings and papersdocuments.
Fla. R. Jud. Admin. 2.505 Attorneys.
Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.
RULE 5.042. TIME
(a) [No Change]
(b) Enlargement. When an act is required or allowed to be done at or within a specified time by these rules, by order of court, or by notice given thereunder, for cause shown the court at any time in its discretion
(1) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous orders or
(2) on motion made and notice, after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect. The court under this rule may not extend the time for serving a motion- for rehearing or te-enlarge any period of time governed by the Florida Rules of Appellate Procedure.
(c) [No Change]
(d) Additional Time after Service by Mail or E-mail. Except when serving formal notice, or when-serving a motion» pleading, -or other document4n-the-manner provided -fer-serviee-of formal notice, Florida Rule of Judicial Administration 2,514 (b) shall apply to the computation of time following service, except for' documents served by formal notice or in the manner provided for service of formal notice.
Committee Notes
[No Change]
Rule History
1984-2012 Revisions: [No Change]
2016 Revision: Subdivision (d) revised to clarify that Florida Rule of Judicial Administration 2.514(b) does not apply if a document is served by formal notice or in the manner provided for service of formal notice. Committee notes revised.
Statutory References
[No Change]
Rule References
[No Change]
RULE 5.080. DISCOVERY, ANB-SUBPOENA, AND TAKING TESTIMONY
(a) Adoption of Civil Rules. The following Florida Rules of Civil Procedure shall apply in all probate and guardianship proceedings:
(1) — (14) [No Change]
(15) Rule 1.451, taking testimony.
(b)-(c) [No Change]
Committee Notes
[No Change]
Rule History
1975-2007 Revisions: [No Change]
2016 Revision: Florida Rule of Civil Procedure 1.451 has been added to-subdivision (a). Committee notes revised. .
Statutory References
[No Change]
Rule References
[No Change]
RULE 5.845. ACCOUNTINGS OTHER THAN PERSONAL REPRESENTATIVES’ FINAL AC-COUNTINGS
(a)-(e) [No Change]
(f) Substantiating PapersDocuments. On reasonable written request, the fiduciary shall permit an interested person to examine papersdocuments substantiating items in any accounting to which this rule applies.
(g)-(h) [No Change]
Committee Notes
[No Change]
Rule History
1977-2005 Revisions: [No Change]
2016 Revision: Subdivision (f) revised to substitute “documents” for “papers.”
Statutory References
[No Change]
Rule References
[No Change]
RULE 5.346. FIDUCIARY ACCOUNTING
(a) Contents. A fiduciary accounting, other than a guardian accounting, shall include:
(1) all cash and property transactions since the date of the last accounting or, if none, from the commencement of administration, and
■ (2) a schedule of assets at the end of the accounting period.
(b)~(d) [No Change]
Committee Notes
[No Change]
Rule History
1988-2010 Revisions: [No Change]
2016 Revision: Subdivision (a) amended to clarify that this rule does not apply to guardian accounting. Committee notes revised.
Statutory References
[No Change]
Rule References
[No Change]
[No Change]
RULE 5.550. PETITION TO DETERMINE INCAPACITY
(a) Contents. The petition to determine incapacity shall be verified by the petitioner and shall state:
(1) — (5) [No Change]
(6) whether plenary or limited guardianship is sought for the alleged incapacitated person;-and
(7) the names, relationships, and addresses of the next of kin of the alleged incapacitated person, specifying tine year of birth of any who are minors, to the extent known by the petitionetYLand
(8) whether there are possible alternatives to guardianship known to the petitioner, including, but not limited to. trust agreements, powers of attorney. surrogates, or advance directives.
(b)-(d) INo Change]
Committee Notes
Rule History
1980-2014 Revisions: [No Change]
2016 Revision: Subdivision (a¥8~) added to require the disclosure of whether there are possible alternatives to guardianship known to the petitioner. Committee notes revised.
Statutory References
¾ 744,3115. Fla. Stat. Advance directives for health care.
§ 744.3201, Fla, Stat, Petition to determine incapacity.
§ 744.331, Fla. Stat. Procedures to determine incapacity.
§ 744.3371, Fla. Stat. Notice of petition for appointment of guardian and hearing.
§ 744.441(11), Fla. Stat. Powers of guardian upon court approval.
§ 744.462, Fla. Stat. Determination regarding alternatives to guardianship. § 765.102, Fla. Stat. Legislative intent and findings.
Rule References
[No Change]
RULE 5.560. PETITION FOR APPOINTMENT OF GUARDIAN OF AN INCAPACITATED PERSON
(a) Contents. The petition shall be verified by the petitioner and shall state:
(l)-(8) [No Change]
(9) whether there are possible alternatives to guardianship known to the petitioner-that-may sufficiently address the-problems ofthe-alieged incapacitated person-m-whol&-or in-part, including, but not limited to. trust agreements, powers of attorney, surrogates, or advance directives: and
(10) [No Change]
(b)-(c) [No Change]
Committee Notes
Rule History
1975-2014 Revisions: [No Change]
2016 Revision: Subdivision (a)(9) revised to require the disclosure of whether there are possible alternatives to guardianship known to the petitioner. Committee notes revised.
Statutory References
§ 744.1083, Fla. Stat. Professional guardian registration.
§ 744.309, Fla Stat. Who may be appointed guardian of a resident ward.
g 744.3115. Fla.. Stat. Advance directives for health care.
§ 744.312, Fla. Stat. Considerations in appointment of guardian.
§ 744.3201. Fla. Stat. Petition to determine incapacity.
§ 744.331, Fla. Stat. Procedures to determine incapacity.
§ 744.334, Fla. Stat. Petition for appointment of guardian or professional guardian; contents.
§ 744.3371(1), Fla. Stat Notice of petition for appointment of guardian and hearing.
§ 744.341, Fla. Stat. Voluntary guardianship.
§ 744,344, Fla. Stat. Order of appointment.
§ 744.462, Fla. Stat. Determination regarding alternatives to guardianship.
§ 744,703, Fla. Stat. Office of public guardian; appointment, notification.
§ 765.102. Fla. Stat. Legislative intent and findings.
Rule References
[No Change]
RULE 5.620. INVENTORY
(a)-(b) [No Change]
(c) Substantiating PanersDocuments. Unless ordered by the court, the guardian need not file the papersdocuments substantiating the inventory. Upon reasonable written request, the guardian of the property shall make the substantiating papcrsdocuments available for examination to those persons entitled to receive or inspect the inventory.
(d) - (e) [No Change]
Committee Notes
Rule History
1977-2012 Revisions: [No Change]
2016 Revision: Subdivision (cl revised to substitute “documents” for “papers.”
Statutory References
[No Change]
Rule References
[No Change]
RULE 5.690. INITIAL GUARDIANSHIP REPORT
(a) - (b) [No Change]
Committee Notes
The committee recognizes the conflict between this rule and section 744.362, Florida Statutes, which requires the filing of the initial guardianship report (which includes the inventory) within 60 days after appointment. The committee believes this provision, which attempts to regulate when a paperdocument must be filed with Hie court, is procedural and that a guardian may not receive letters of guardianship empowering the guardian to act contemporaneously with the appointment, Therefore, the issuance of letters is a more practical time from which to measure the beginning of the time period for the accomplishment of this act.
In the event the guardian of the property and the guardian of the person are not the same entity or person, they shall malee a good faith effort to jointly file the initial guardianship report.
Rule History
1991-2012 Revisions: [No Change]
2016 Revision: Committee notes revised.
Statutory References
[No Change]
Rule References
[No Change]
RULE 5.696. ACCOUNTING
(a) Contents and Fifing — Tire guardian of the property must file an annual accounting as required-by law. The annual accounting-must include: '•
—a fall and eeffeet-aecountof the receipts and disbursements of all of the ward’s property over-whieh-the guardian has eenfr-el-and-a-stalement of the ward’s property on hand at the end ofthe-accounting-period; and
(3) — a cop}' of the-statements-of-all the ward-⅛-cash-accounts as of the end of ⅜⅛-aecounting period-frorn each institution wher-edhe-eash-is deposíted.-Applicabilitv. This rule applies to all guardian accountings required under Chanter 744, Florida Statutes, other than a simplified accounting permitted under section 744.3679, Florida Statutes.
(bl Contents. A guardian accounting shall include:
111 a statement of the starting balance of assets on hand at the beginning of the accounting period which shall be the ending balance of the preceding accounting, or if none, the value of assets on the inventory:
121 a full and correct account of the receipts and disbursements of all of the ward’s property over which the guardian has control since the date of the last accounting or. if none, from the date of issuance of letters of guardianship:
131 a schedule ofassets at the end of tire accounting period: and
141 in tire case of annual accountings, a copy of the annual or vear-end statement of all of the ward’s cash accounts from each of the institutions where the cash is deposited.
let Accounting Standards. The following standards are required for the accounting of all transactions occurring on or after January 1.2017:
('ll Accountings shall be stated in a manner that is understandable to persons who are not familiar with practices and-terminology peculiar to the administration of guardianships.
121 The accounting shall begin with a concise summary of its purpose and content.
Í3) The accounting shall contain sufficient information disclosing all significant transactions affecting administration during the accounting period.
(41 The accounting shall contain 2 values in the schedule of assets at the end of the accounting period, the asset acquisition value or carrying value. and estimated current value.
(5) Gains and losses incurred during the accounting period shall be shown separately in the same schedule.