November 16, 2023
SSRGA recently secured a partial stay pending appeal of an order appointing a guardian advocate.
Multiple family members, including a parent and a grandparent, petitioned for appointment as guardian advocate for the Ward, a developmentally disabled adult who had been living with the grandparent. The proceedings to determine the need and appointment of an advocate lasted for over a year and a half during which the trial court conducted several hearings. The court had to address whether the Ward lacked the decision-making ability to exercise certain rights, including the right to determine her residence. The court received evidence from witnesses, including the competing petitioners, and heard the Ward’s desire to have her grandparent as her advocate and to remain living with her grandparent.
The trial court later rendered an order removing specific delegable rights from the Ward and appointing the Ward’s parent as her guardian advocate. The court’s order removed several rights from the Ward, including the Ward’s ability to determine her own residence.
The grandparent retained SSRGA to appeal the trial court’s order and to move to stay the order pending conclusion of the appeal. In moving to stay the order, we argued in part that the grandparent would have a high likelihood of success on appeal because competent substantial evidence did not support the parent’s appointment as advocate for the Ward. Pursuant to section 744.312(2) of the Florida Statutes, preference of appointment of a guardian should be towards the person who has the ability to meet the requirements of the law and the unique needs of the individual case. SSRGA asserted that our client has a likelihood of success on appeal where the evidence shows that the grandparent as advocate better meets the unique needs of the case and the Ward. Through her attorney, the Ward supported an issuance of a stay pending appeal.
After a hearing on the motion to stay, the trial court rendered an order granting the stay in part. While the court denied the stay as to the appointment of the parent as advocate, the court granted the stay as to the advocate’s ability to change or determine the residence of the Ward pending the outcome of appeal or any further modification to the stay. This favorable result for our client allows for the Ward to continue to maintain her residence with our client while the client pursues her appellate rights.
*Not final until exhaustion of any appellate remedies.