Florida Probate, Trust & Guardianship Litigation

2020 Revision to Florida Probate and Guardianship Rules

Effective September 3, 2020, several Florida Probate Rules were amended regarding guardianships, and several brand new rules were adopted.

The full Florida Supreme Court opinion can be found here: In Re Amendments To The Florida Probate and Guardianship Rules.  The opinion includes complete text of all of the amended and new rules effective immediately.

Amendments To The Florida Probate Rules – Guardianship

Three Florida Probate Rules governing guardianship proceedings were amended.

Amendment to Florida Probate Rule 5.550 – Petition to Determine Incapacity

Florida Probate Rule 5.550 section (a)(8) was amended to clarify that a petition to determine incapacity must include designations of health care surrogates or other advance directives.

The rule was also amended to require a petitioner seeking guardianship to explain “why the alternatives are insufficient to meet the needs of the alleged incapacitated person.”

Amendment to Florida Probate Rule 5.560 – Petition for Appointment of Guardian of An Incapacitated Person

Florida Probate Rule 5.560 section (a)(9) was amended to require that a petition for appointment of guardian state whether the petitioner has knowledge or belief that there are other possible alternatives to guardianship, and if there are, the petitioner must include an explanation of “why the alternatives are insufficient to meet the needs of the alleged incapacitated person.”

Amendment to Florida Probate Rule 5.649 – Guardian Advocate

Florida Probate Rule 5.649 section (a)(8) was amended to require that a petitioner seeking appointment of a guardian advocate include in the petition whether the petitioner has knowledge that the person with a developmental disability has executed a designation of health care surrogate.  If so, or if the person has executed an advanced directive under chapter 765, Florida Statutes, or a durable power of attorney under chapter 709, Florida Statutes, then the petitioner must explain “why the documents are insufficient to meet the needs of the individual.”

Subdivision (a)(9) was also adopted.  Subdivision (a)(9) requires a statement from the petitioner regarding any knowledge of a preneed guardian designation.

New Florida Probate Rules Concerning Guardianships

Several new rules were also adopted concerning guardianship proceedings, with the clear intent to make guardianship practice more streamlined and cost-effective.  The new Florida Probate Rules contain standardized forms for use in guardianship proceedings, as follows:

  • Rule 5.901 – Provides a model form to be used in a petition to determine incapacity pursuant to rule 5.550.
  • Rule 5.902 – Includes a Petition for Appointment of Guardian and an Order for Appointment of Guardian.
  • Rule 5.903 – Includes forms for Letters of Guardianship of the Person and Letters of Guardianship of the Property.
  • Rule 5.904 – Provides several guardianship plans (Initial Guardianship Plan for Minor, Annual Guardianship Plan for Minor, Initial Guardianship Plan for Adult, and Annual Guardianship Plan for Adult).
  • Rule 5.905 – Includes a petition, notice, and order for appointment of guardian advocate of the person.
  • Rule 5.906 – Provides model Letters of Guardian Advocacy.
  • Rule 5.910 – Form for an inventory account.  Additionally, the following statement was added to rule 5.910: “A certificate of service as required by Florida Rule of Judicial Administration 2.516 must be included if the incapacitated person is not a minor under 14 years of age and is not totally incapacitated.”

 

Oral Argument at 5th District Court of Appeals

Florida Probate Attorney Jeffrey Skatoff Arguing in Court

Jeffrey Skatoff

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(561) 842-4868

jeffrey@skatoff.com

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