Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT ALICIA FRANK, Appellant, v. GUARDIANSHIP OF MURIEL FRANK, an alleged incapacitated Person, HOWARD FRANK, and ANTHONY ROMANO, Appellees. No. 4D2024-1073 [August 19, 2026] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Charles Michael Greene, Judge; L.T. Case No. 062020MH003932A001CE; 062020CP005658A0001CE. V. Ashley Paxton of Paxton Appeals & Trials, Oakland Park, for appellant. Kimberly J. Fernandes of Kelley Kronenberg, P.A., Tallahassee, for appellees Anthony Romano and Howard Frank. No appearance for appellee Sheryl Frank. COATES, JR., HOWARD K., Associate Judge. Alicia Frank (“Alicia”) appeals from final judgments rendered by the circuit court regarding her mother Muriel Frank’s incapacity (“Muriel” or “the Ward”) and the appointment of a plenary guardian for Muriel. The opposing parties in this matter are Sheryl Frank (“Sheryl”) and Howard Frank (“Howard”) (collectively referred to as “Appellees”). Issues This appeal concerns four issues: (1) whether the circuit court reversibly erred by displacing the Ward's valid preneed directives and appointing a professional plenary guardian without making factual findings that the directives were contrary to the Ward's best interest and by improperly relying on court-appointed counsel’s substituted judgment; (2) whether the circuit court abused its discretion and violated procedural due process during the 2024 rehearing by imposing a strict October 2022 evidentiary cutoff that excluded relevant post-appointment evidence regarding the professional guardian’s management of the Ward's property; (3) whether the Ward's death renders the appeal moot; and, (4) whether the subsequent orders authorizing the sale of the Ward's property and the payment of fees must be reversed as derivative consequences of an invalid guardianship appointment. Facts This case arises from a dispute between Alicia and her siblings Howard and Sheryl regarding the guardianship of their mother, Muriel. In August 2019, Alicia moved in with her mother in Weston. Howard split his time between California and Marco Island, and Sheryl lived in Maryland. Before any court was asked to intervene, Muriel executed several advanced directives designating Alicia to manage Muriel’s affairs. Muriel’s durable power of attorney specifically appointed Alicia as her agent. Muriel’s trust and will protected Alicia’s right to remain in the Weston residence rent-free and without eviction. Muriel explicitly wrote in the trust and will documents that the residence should pass “straight” to Alicia “without interference” from Howard or Sheryl. Muriel similarly executed a designation of healthcare surrogate naming Alicia to make those decisions if Muriel were unable to do so. In June 2020, Muriel provided a videotaped statement affirming her estate- planning documents and overall plan to divest. Initial 2020-2021 Pleadings In December 2020, Howard initiated the first round of incapacity and guardianship proceedings. During a January 2021 evidentiary hearing, Muriel testified she did not want Howard handling her finances and preferred to handle them herself, stating that when she could no longer do so, “her daughter will.” Muriel's court-appointed attorney argued against implementing a guardianship based on Muriel’s durable power of attorney. Following the general magistrate's recommendation, the circuit court declined to declare Muriel incapacitated and Howard voluntarily dismissed his petition in February 2021. 2022 Incapacity Petition and Hearing In May 2022, Howard and Cheryl filed an amended joint petition to 2 determine incapacity and appoint a plenary guardian. The petition originated from a September 2022 deposition in which Alicia testified she had invested $72,000 of Muriel’s assets into precious metals in a $94,000 equity-indexed annuity. Alicia also testified she refused to have Muriel tested for or vaccinated against COVID-19, citing Alicia’s personal beliefs. In response, the court appointed an examining committee, which issued unanimous reports concluding Muriel was incapacitated. At the October 4, 2022 hearing, in contravention of Muriel’s expressed wishes and her directives, court-appointed counsel Theodore Kaufman recommended appointing a professional guardian and opined Alicia was not then able to fulfill the responsibilities required by Muriel’s advanced directives. October 2022 Orders Following the hearing, the circuit court entered orders determining incapacity and appointing a plenary guardian, Gloria Ego, from the court’s professional guardian registry. While the court acknowledged Muriel’s preneed documents, the court made no findings regarding the validity or viability of those less restrictive alternatives. Instead, the court instructed that if Alicia wished to act under the preneed documents, she would need to seek a separate hearing on the issue. Alicia subsequently filed a motion for rehearing. Guardianship Administration and the March 2023 Property Order Shortly after Gloria Ego’s appointment, she filed an amended resignation citing hardship and excessive time required due to a lack of cooperation from Alicia. The circuit court ultimately appointed Anthony Romano as successor professional guardian. In early 2023, a court-authorized physician evaluated Muriel and created a care plan recommending her relocation to an assisted living facility, in addition to excluding Alicia from continuing as the caregiver in the residence. In March 2023, the circuit court granted an urgent petition implementing this plan, noting Alicia was not rendering adequate care and that Alicia’s presence was interfering with the guardian's efforts. The order authorized the guardian to sell Muriel’s property to Howard and Sheryl for $700,000, which the circuit court acknowledged was a non-arm’s-length transaction and lower than the open market value range of $825,000 to $855,000. The circuit court also ordered Alicia to vacate the property within ten days or face removal by law enforcement. 3 Litigation concerning Alicia’s motion for rehearing spanned numerous dates throughout 2024. During a May 2024 hearing, Muriel’s 2020- videotaped statement was admitted and played. The circuit court, however, established a strict evidentiary cutoff, stating it would only consider the evidence up to October 4, 2022. On November 25, 2024, the circuit court denied Alicia’s rehearing request. In considering Alicia’s financial transfers of gold, trust amendments made in Alicia’s favor, and Alicia’s refusal to comply with medical professionals’ opinions, the circuit court concluded Alicia was unqualified and a professional guardian remained in Muriel’s best interests. Following Muriel’s death, the guardianship generated ongoing litigation, culminating in a 2026 dispute wherein Howard, Sheryl and the guardian moved to satisfy fees from a post-death annuity benefit. This appeal follows. Standard of Review First, Alicia asserts that the circuit court committed structural error in violating the mandatory sequencing required in section 744.331(6)(b), Florida Statutes (2020), by bypassing the Ward’s preneed directives without making contemporaneous factual findings that those directives were contrary to the Ward’s best interests under section 744.312(1), Florida Statutes (2020). Alicia also maintains the circuit court improperly relied on court-appointed counsel’s substituted “best interest” opinion rather than the Ward’s expressed wishes, in turn violating section 744.102(1), Florida Statutes (2020). Review of these arguments is de novo. See Adelman v. Elfenbein, 174 So. 3d 516, 518 (Fla. 4th DCA 2015) (whether the lower court properly applied the legal and statutory framework is a question of law reviewed de novo on appeal). Second, Alicia asserts the circuit court violated due process during the 2024 rehearing by enforcing an arbitrary October 4, 2022, evidentiary cutoff. Alicia argues this cutoff prevented the admission of post- appointment evidence demonstrating the professional guardian’s misconduct, which Alicia believes was necessary to prove the guardianship was not the least restrictive alternative. The circuit court’s limitation of the evidentiary scope on a rehearing is reviewed for an abuse of discretion on appeal. Edrington v. Edrington, 945 So. 2d 608, 609 (Fla. 4th DCA 2006). Whether the exclusion of evidence constitutes a deprivation of procedural due process or fundamental error is reviewed de novo. Cayard v. U.S. Bank Nat'l Ass'n as Tr. for Structured Adjustable Rate Mortg. Loan 4 Tr. Mortg. Pass-Through Certificates Series 2006-9, 408 So. 3d 26, 29 (Fla. 4th DCA 2025); see Sanders v. Peterson-Sanders, 321 So. 3d 802, 805 (Fla. 4th DCA 2021). Third, Alicia asserts the Ward’s death does not moot this appeal due to the defects in the appointment and rehearing orders and all downstream orders, including the residential sale, eviction, and ongoing fee awards. Alicia argues the foregoing orders must be reversed or remanded for vacatur as fruit of the poisonous tree. Issues covering appellate jurisdiction, standing, mootness, and whether orders are void ab initio are reviewed de novo. Wexler v. Lepore, 878 So. 2d 1276, 1280 (Fla. 4th DCA 2004). Analysis Mootness We address the mootness issue first. While a ward’s death generally moots an incapacity determination, an exception exists regarding the appointment of a property guardian. Under Guibord v. Ford by and through Chopin, 338 So. 3d 928, 929–30 (Fla. 4th DCA 2022), a ward’s death does not render an appointment challenge moot if the guardian handled the ward’s property for a period of time or engaged “in any transactions affecting the ward's property to a significant degree.” Further, a guardian is not automatically discharged upon the property owner’s death, because retaining the authority to administer the estate, approve funeral expenses, and retain funds for administrative costs of final discharge can be significant if not handled properly. Id.; see also § 744.531, Fla. Stat. (2020). In Romano v. Olshen, 153 So. 3d 912, 920 (Fla. 4th DCA 2014), we posited that Chapter 744 creates a “tacit equitable lien” to pay legitimate guardianship expenses, keeping the property guardianship active for the purposes of settling accounts and reviewing transfers. When a trial court improperly appoints a professional guardian by ignoring a ward’s preneed directives, that guardian’s foundational authority is compromised. Here, the property guardian executed a $700,000 home sale and the estate is currently litigating ongoing fee collections. Therefore, despite the Ward’s death, this case remains a live controversy and the Ward’s death does not moot this appeal. Structural Error in Violating Mandatory Sequencing 5 Florida law establishes a strong rebuttable presumption favoring a preneed guardian. Where a ward expresses preference as to her preneed guardian, that intent serves as the “polestar to guide probate judges in the appointment of their guardians. A ward's nominee, of course, may be rejected when unfit or unsuitable, or for other like reasons.” In re Est. of Salley, 742 So. 2d 268, 271 (Fla. 3d DCA 1997). To override this polestar, section 744.312(1), Florida Statutes (2020), requires a clear, factually supported finding that the appointment is “contrary to the best interests of the ward.” Treloar v. Smith, 791 So. 2d 1195, 1196 (Fla. 5th DCA 2001); see Koshenina v. Buvens, 130 So. 3d 276, 281–83 (Fla. 1st DCA 2014). Under section 744.331(6)(b), the circuit court must rule on less restrictive alternatives before appointing a guardian. Skipping this step to appoint a plenary guardian is reversible structural error. Adelman v. Elfenbein, 174 So. 3d at 518; see Silva v. Silva, 394 So. 3d 1235, 1237 (Fla. 3d DCA 2024). As we established in Elfenbein, this creates a strict “prohibitory mandate” and if a valid alternative exists, the court is prohibited from appointing a guardian. 174 So. 3d at 518. Passing over this step to appoint a plenary guardian is an “error of fundamental proportions.” Id. Further, section 744.102(1) requires court-appointed counsel to advocate for the ward’s expressed wishes, not to make decisions or provide opinions based upon their own assessment of what constitutes the ward’s best interest. Erlandsson v. Erlandsson, 296 So. 3d 431, 436 (Fla. 4th DCA 2020). While Erlandsson did not specifically address preneed designations, the implications for preneed guardian designations are direct. A court- appointed counsel's assessment that a preneed designee is unsuitable is not a substitute for the independent, factually supported judicial finding required by sections 744.3045(4) and 744.312(1). Where a ward has clearly and competently expressed her preference for a preneed guardian, Erlandsson’s established general principle that counsel must advocate for the ward's expressed wishes rather than substitute counsel’s own judgment applies. By relying on counsel’s suitability assessment to override a preneed designation, a circuit court effectively permits counsel to substitute counsel’s judgment for the ward’s expressed preference, contrary to Erlandsson. See also, In re Estate of Salley, 742 So. 2d at 270–71 (finding that a ward’s known preference is the guiding “polestar” for probate judges, and reversing the appointment of a professional guardian based merely on unsubstantiated family concerns); Acuna v. Dresner, 41 So. 3d 997, 999–1000 (Fla. 3d DCA 2010) (reaffirming the guiding doctrine that a court cannot bypass a preneed designee without making clear, factual 6 findings that the designee is unqualified or unable to serve). Here, the circuit court inverted the statutory burden by appointing a professional guardian first and then directing Alicia to “seek a hearing later” to validate the preneed directives. This backward approach violates section 744.331(6)(b). By failing to make a contemporaneous, factually supported finding that Alicia was acting contrary to the Ward’s best interests at the time of the October 2022 appointment, the circuit court failed to overcome the “polestar” presumption of the Ward’s wishes. The circuit court committed a similar reversible error as we had identified in Martinez v. Guardianship of Smith, 159 So. 3d 394 (Fla. 4th DCA 2015). There, we reversed the appointment of a professional guardian over the ward's preneed-designated wife. Id. at 397-401. The trial court failed to make an explicit finding the wife was unqualified or her appointment was contrary to the ward's best interests. Id. The reasons given (relocating the ward and failure to communicate well with the ward’s caregivers) were legally insufficient to overcome the statutory presumption. Id. at 400. Here, the circuit court’s October 2022 orders clearly relied on court- appointed counsel’s assessment that Alicia was “not suitable.” The record supports that the Ward executed a valid durable power of attorney and healthcare surrogate designating Alicia as such. The Ward affirmed these choices both in a June 2020 videotaped statement and in sworn January 2021 testimony. By failing to make explicit, contemporaneous findings that Alicia was acting contrary to the Ward’s best interests at the October 2022 appointment, the circuit court reversibly erred and failed to overcome the presumption of the Ward’s wishes. While Appellees argue that Alicia’s unorthodox financial strategies (such as purchasing precious metals and living rent-free) justified the override, Florida law is clear that unconventional strategies and existing property interests do not constitute a per se conflict of interest warranting automatic disqualification. Further, the circuit court failed to make the specific, contemporaneous evidentiary findings required to overcome the preneed presumption. See Davis v. King, 686 So. 2d 763, 764 (Fla. 5th DCA 1997) (“The trial court's findings of fact are clearly supported by the evidence and are sufficient to rebut the statutory presumption that the appellant . . . should be appointed guardian.”); Cf. Miller v. Goodell, 958 So. 2d 952, 954 (Fla. 4th DCA 2007) (trial court’s explicit finding that the sister's appointment was contrary to the ward's best interests and the sister and her attorneys jointly agreed to the appointment of a neutral professional guardian upheld, thereby overcoming the statutory 7 presumption). As such, we reverse and vacate the circuit court’s October 2022 order appointing plenary guardian because it bypassed mandatory statutory requirements and lacked the specific, contemporaneous evidentiary findings required to overcome the preneed presumption. Due Process Issue We also find the circuit court failed to provide due process by imposing a strict evidentiary cutoff that excluded post-appointment evidence relevant to the property guardianship. The right to be heard requires the opportunity to introduce evidence at a “meaningful time and in a meaningful manner.” Vollmer v. Key Dev. Props., Inc., 966 So. 2d 1022, 1027 (Fla. 2d DCA 2007). Post-appointment evidence of a professional guardian’s actions is relevant and admissible to challenge the appointment of a property guardian. See Berges v. Infinity Ins. Co., 896 So. 2d 665, 675 (Fla. 2004). Critically, a circuit court cannot use a belated rehearing order to supply retroactively foundational findings required at the time of the original appointment. See Livingston v. State, 219 So. 3d 911, 918 (Fla. 2d DCA 2017) (“[An appellate] court cannot cure the trial court's omission to make the required predicate findings—as the majority has done—by culling the record and supplying the missing findings.”); see also Martinez, 159 So. 3d at 399–400. The circuit court, by capping the evidentiary hearing window, hindered Alicia’s ability to present evidence in a meaningful manner, as found in Vollmer. 966 So. 2d at 1027. Identical action here subsequently shielded the appointed property guardian from scrutiny. Evidence regarding how a guardian subsequently handled a ward’s property, such as executing a non-arm’s length transaction and imposing large fees, was directly relevant to the determination of whether the professional guardianship was a viable, less restrictive alternative. Searle v. Bent, 137 So. 3d 1028, 1030 (Fla. 2d DCA 2013). The circuit court’s 2024 rehearing order attempted retroactively to cure the defective 2022 order by adding new factual findings regarding Alicia’s finances. However, as found in Martinez, retroactive findings cannot salvage an appointment order that was defective when issued. 159 So. 3d at 399. Conclusion Based on the foregoing: (1) the Ward’s death did not moot this appeal; 8 (2) the circuit court erred by entering the October 4, 2022 order appointing plenary guardian because the circuit court bypassed mandatory statutory requirements and failed to make the specific, contemporaneous evidentiary findings required to overcome the preneed presumption; and, (3) the circuit court failed to provide due process by imposing the artificial evidentiary cutoff; and, (4) the subsequent orders authorizing the sale of the Ward's property and the payment of fees must be reversed as derivative consequences of an invalid guardianship appointment. Accordingly, we reverse the October 4, 2022 order appointing plenary guardian of the person and property; the November 25, 2024 order denying rehearing; and, all later fees orders and derivative orders flowing from the circuit court’s improper appointment of the guardian of the property, including any orders authorizing or effecting the sale or transfer of the Ward’s home. We remand to the circuit court with instructions to take all necessary action consistent with the terms of this opinion, including: (1) vacating the guardian of the property appointment and all derivative orders flowing therefrom, such as the order authorizing the sale of the Ward's home and returning to the extent reasonably possible all parties to their position before the entry of the order appointing guardian of the property; and, (2) taking such other and further actions as may be required to conclude the guardianship consistent with this opinion. We further instruct the circuit court to provide notice of the remand proceedings to the Ward's personal representative and heirs, and trustee if applicable, who are the parties most directly affected by the vacated guardianship appointment and all orders entered derivatively therefrom. Reversed and remanded. SHEPHERD and LOTT, JJ., concur. * * * Not final until disposition of timely-filed motion for rehearing. 9