White v. Guardianship of Gary L. Lubin , 2014 Fla. App. LEXIS 19259 ( 2014 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MELINDA WHITE, )
)
Appellant, )
)
v. ) Case No. 2D13-5473
)
GUARDIANSHIP OF GARY L. LUBIN, )
)
Appellee. )
)
Opinion filed November 21, 2014.
Appeal from the Circuit Court for Polk
County; Mark F. Carpanini, Judge.
Keith D. Miller of Boswell & Dunlap LLP,
Bartow, for Appellant.
No appearance for Appellee.
WALLACE, Judge.
Melinda White, a professional guardian, challenges the circuit court's order
granting her petition for fees and costs in part and denying it in part. 1 Because the
circuit court's order denied Ms. White any compensation for certain services that she
1Ms. White also argues that the circuit court erred in entering a separate
order declaring the ward's sister to be an interested party in the guardianship
proceedings. This argument is without merit and does not warrant further discussion.
was required to perform on behalf of her ward, we reverse the circuit court's order in
part.
I. THE FACTUAL AND PROCEDURAL BACKGROUND
Ms. White is a professional guardian. The ward, Gary L. Lubin, is an
incapacitated adult. On January 3, 2011, the circuit court appointed Ms. White as the
emergency temporary guardian of the person and property of Mr. Lubin. The circuit
court appointed Ms. White as the plenary guardian of the person and property of Mr.
Lubin on March 7, 2011.
After Ms. White's appointment, she learned that Mr. Lubin had only
minimal assets. He qualified for Medicaid, and his monthly income was barely sufficient
to pay his expenses. As a result, Ms. White served as Mr. Lubin's guardian without
compensation for approximately three years.
In 2013, Ms. White received on behalf of Mr. Lubin a check for
approximately $22,000. The receipt of the $22,000 was apparently unexpected. The
funds represented the proceeds of the settlement of Mr. Lubin's claim that had been
pending for many years.
In September 2013, Ms. White filed a petition for her fees and costs
covering the period from November 30, 2010, through August 21, 2013. She petitioned
the court for the payment of fees of $16,032, representing 267.2 hours of her time billed
at her regular rate of $60 per hour and $894.12 in expenses for mileage, copies, and
faxes. Ms. White tentatively planned to use the balance of the $22,000 to pay for the
services of her attorney and to set aside sufficient funds for Mr. Lubin's burial. See Fla.
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Admin. Code r. 65A-1.712(2)(d) (2013) (excluding amounts designated for burial funds
from an individual's available resources for Medicaid qualification purposes).
Ms. White testified at a hearing on her petition and was questioned by the
court. No one objected to the amount of the fees and costs requested by Ms. White.
Mr. Lubin's sister consented to the entry of an order authorizing the payment of the fees
and costs requested. After the hearing, the circuit court granted Ms. White's petition but
disallowed 31.9 hours of her charges for time spent "reviewing and paying invoices,"
resulting in a reduction of her requested compensation in the amount of $1914. The
circuit court also reduced the amount claimed for costs in the amount of $134.40 based
on its determination that Ms. White's charges for copying and faxes were excessive.
II. FRAMING THE ISSUE
On appeal, Ms. White does not challenge the reduction in her claimed
expenses, but she does challenge the circuit court's refusal to award her any
compensation for her time devoted to reviewing and paying Mr. Lubin's bills. Our review
of the record supports Ms. White's claim that the circuit court appears to have
disallowed all of her time entries for this particular activity. Thus the issue presented is
whether the circuit court erred in denying Ms. White any compensation for the time she
devoted to reviewing and paying the ward's bills.
III. DISCUSSION
"The amount of guardian's fees to be awarded as compensation for
services rendered is in the discretion of the trial court, and its determination will not be
disturbed unless there is a lack of competent, substantial evidence to support the
award." In re Guardianship of Sapp, 868 So. 2d 687, 693 (Fla. 2d DCA 2004). A
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guardian is entitled to a reasonable fee for services rendered. § 744.108(1), Fla. Stat.
(2013).
In seeking such fees, the guardian has the burden to
establish through appropriate proof that the services claimed
were actually performed and that the fees claimed for those
services are reasonable. Based on that proof, the probate
court has the discretion to determine the amount of the fees
to which the guardian is reasonably entitled. This discretion
includes the ability to rely on common sense and experience
to adjust the time claimed for common or routine tasks. It
also includes the discretion to deduct time claimed by a
guardian for noncore, delegable tasks that are better
performed by others and to deduct excess time claimed due
to the guardian's own inefficiency because such time is not
expended for the benefit of the ward.
In re Guardianship of Shell, 978 So. 2d 885, 889 (Fla. 2d DCA 2008) (citations omitted).
Obviously, as plenary guardian of the property, Ms. White was required to
examine, approve, and pay Mr. Lubin's bills. Some portion of her time must be properly
chargeable for this task. A guardian is required by statute to account for and keep
records of all disbursements made on behalf of the ward. § 744.3678(2), (3). In
addition to the duty of paying the bills, the guardian has record-keeping responsibilities
regarding that function:
The guardian must obtain a receipt, canceled check,
or other proof of payment for all expenditures and
disbursements made on behalf of the ward. The guardian
must preserve all evidence of payment, along with other
substantiating papers, for a period of 3 years after his or her
discharge.
§ 744.3678(3). The guardian's duties and responsibilities in this regard are substantial;
they cannot be disregarded as trivial busy-work. Examining invoices, approving their
payment, making the payment, and retaining the required records is part of the job of
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the guardian of the property. The guardian must be paid something for the work that he
or she was appointed to perform and is required by law to perform.
Accordingly, the circuit court abused its discretion by arbitrarily reducing
Ms. White's charges by the entire amount charged over nearly a three-year period for
review and payment of the ward's invoices. We do not hold that the entire amount
disallowed must be awarded, but some compensation is due to Ms. White for the work
that the court appointed her to do and that she is required by law to do. See Thorpe v.
Myers, 67 So. 3d 338, 343-44 (Fla. 2d DCA 2011) ("To the extent that the services of a
guardian are unnecessary or unproductive, the circuit court may reduce the requested
compensation based on the factors listed in section 744.108(2) but may not deny
compensation altogether.").
IV. CONCLUSION
For the foregoing reasons, we affirm the circuit court's order to the extent
that it awarded Ms. White compensation of $16,032 and expenses of $894.12. We
reverse the order to the extent that it denied her any compensation for her time devoted
to reviewing and paying Mr. Lubin's invoices. On remand, the circuit court shall
reconsider the petition and award Ms. White reasonable compensation for these
services. We also affirm the circuit court's order designating Mr. Lubin's sister as an
interested person in the guardianship proceedings.
In closing, we note that Ms. White, to her credit, expended her time and
resources on behalf of Mr. Lubin for almost three years without the expectation of
receiving any compensation. The guardian's receipt of the $22,000 on behalf of Mr.
Lubin was a windfall. Ms. White is apparently committed to serving as Mr. Lubin's
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guardian until the guardianship terminates as a result of his death. It is unlikely that she
will receive any compensation for these additional services or that she will be
reimbursed for the additional expenses that she incurs on Mr. Lubin's behalf. We think
that the circuit court should take all of the factors surrounding Ms. White's service into
account when it reconsiders her petition for compensation on remand. See
§ 744.108(2).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
DAVIS, C.J., and SLEET, J. Concur.
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