Romano v. Olshen
153 So. 3d 912
| Fla. Dist. Ct. App. | 2014Background
- Ward Jack Olshen was found incapacitated by dementia; Guardian Anthony Romano appointed to oversee ward's person and property.
- Ward and Irene held a joint Oppenheimer Account titled 'Jack Olshen & Irene Olshen JTWROS' with survivorship; withdrawals required both signatures.
- The Oppenheimer Account comprised the bulk of the guardianship estate; value approximately $1.45 million with 89% in the account.
- Guardianship sought access to the account to pay guardianship and legal fees; dissolution stayed for three years under § 61.052.
- After ward’s death, the trial court permitted certain withdrawals for necessary ward expenses; other requests sought to fund fees from the account.
- The court ultimately reversed some orders and remanded; Beal Bank presumption that survivorship accounts are in entireties was contested in this guardianship context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Oppenheimer Account a tenancy by the entireties or JTWROS? | Guardian contends account is JTWROS; Beal Bank presumption inapplicable to guardianship. | Irene argues Beal Bank presumption makes it an entireties account, limiting guardian access. | Account held as JTWROS; guardian may access for ward’s necessary expenses. |
| May a guardian withdraw funds from a survivorship account to pay guardianship expenses after the ward’s death? | Guardian may wind up guardianship and pay due fees from the account. | Survivorship account post-death belongs to Irene; guardian lacks access. | Yes; post-death access permitted to pay guardianship expenses and final fees. |
| Can guardian and attorney fees be paid from the survivorship account? | Fees are necessary guardianship expenses; account may fund them. | Fees should be paid only from guardianship estate assets, not survivorship account. | Fees may be paid from the account when reasonably necessary to administer the guardianship. |
| Did Beal Bank precedent properly control access in this guardianship proceeding? | Beal Bank presumption unfairly deprives ward of necessary funds; not controlling here. | Beal Bank creates presumption of entireties ownership requiring spouse consent. | Beal Bank presumption does not apply in guardianship; account is not deemed entireties for purposes of access. |
| Should the legislature amend § 744.457(l)(a) to allow access to entireties accounts for ward necessities without nonincapacitated spouse consent? | Legislation should permit guardian access to entireties accounts for necessities regardless of spouse consent. | Existing statute protects survivorship interests; legislative change unnecessary for this case. | Court notes potential legislative clarification; remand for further proceedings; not dispositive in this case. |
Key Cases Cited
- Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla. 2001) (presumption that a bank account titled by both spouses is a tenancy by the entireties absent express disclaimer)
- Hayes v. Guardianship of Thompson, 952 So.2d 498 (Fla. 2006) (guardianship aims to protect wards; equity and broad statutory construction favored)
- In re Guardianship of Sapp, 868 So.2d 687 (Fla. 2d DCA 2004) (guardian of property rights and duties; equity in guardianship proceedings)
- Joseph v. Chanin, 940 So.2d 483 (Fla. 4th DCA 2006) (per stirpes interpretation of joint tenancy rights in survivorship accounts)
- Nationsbank v. Coastal Utils., Inc., 814 So.2d 1227 (Fla. 2002) (reasonable interpretation of joint tenancy accounts and survivorship principles)