August 22, 2013

Bresky Law Obtains Reversal and Remand on Rehearing in Emergency Temporary Guardianship Appeal

Bresky Law Obtains Reversal and Remand on Rehearing in Emergency Temporary Guardianship Appeal

In August of 2013, the Fourth District Court of Appeal (“Fourth DCA”) clarified a crucial point of guardianship law: the time at which the trial court must appoint counsel for an alleged incapacitated person when the court finds that a guardian needs to be appointed on an emergency basis.

Our client’s husband is in a nursing facility and our client is his designated healthcare surrogate and has the power of attorney. In formal estate-planning documents, he directed that our client should be appointed as his guardian if he were ever to be found incapacitated. However, a professional guardian of the property was appointed after our client’s husband had an automobile accident three years ago.

That limited guardian obtained a temporary injunction to prevent our client from transferring her husband to a different nursing facility, which she had a right to do as the healthcare surrogate. Our client moved to dissolve the temporary injunction. The motion and notice of hearing were only on that subject. However, at the conclusion of the injunction hearing, the trial court decided that it needed to appoint a plenary emergency temporary guardian (“ETG”).

In effect, that impromptu decision converted the injunction hearing into a summary proceeding to consider appointment of an ETG. The trial court asked the guardian of the property to file a petition for appointment of an emergency temporary guardian. The next day, the court appointed him as the plenary ETG. But the alleged incapacitated person was not represented by counsel. In fact, the court failed to appoint counsel for the ward until two weeks later.

The Fourth DCA held that the trial court erred when it failed to appoint counsel for the alleged incapacitated person at the time when it appointed the emergency temporary guardian. Thus, the order was reversed and remanded for proceedings where the ward will be represented by the court-appointed attorney, as he should have been in the original summary proceeding.

Additionally, the Fourth DCA noted that the trial court had erred in failing to appoint counsel when the limited guardian of the property filed a petition to find the limited ward fully incapacitated, which was filed before the injunction hearing/ETG proceeding.

Bresky Law is available to handle appeals from guardianship orders anywhere in Florida. We are also pleased to assist attorneys with litigation support in the probate/guardianship court.