Florida Probate, Trust & Guardianship Litigation

Can a Guardianship Petition Be Dismissed Prior to the Hearing?

Probably.  Some recent Florida cases conclude that the petition cannot be dismissed before the hearing, while others hold that the petition can be dismissed.

Petition for Incapacity

A guardianship proceeding is started by the filing of a petition for incapacity.  Sometimes, family members file a petition for incapacity over a relative.  Occasionally, the person filing the petition wants to withdraw the pleading.  Perhaps the petition was misguided, or the family is able to work things out without the benefit of the guardianship system taking control over the alleged incapacitated person.  One would think that the dismissal of a Petition for Incapacity would be allowed.  The caselaw is mixed.   

Katke v. Bersche

In Katke v. Bersche, (5th DCA 2014), the Court permitted withdrawal of the petition.  The facts of the case are somewhat common.  The daughter of the alleged incapacitated person, Bersche, filed a petition for incapacity.  Shortly thereafter, the guardianship court appointed an emergency temporary guardian (“ETG”), a professional guardian named Kardos.  A short time later, Bersche withdrew the petition. The professional guardian Kardos then filed her own petition for incapacity in the same proceeding. In mandating the dismissal of the case, the Court explained as follows:

A party may voluntarily dismiss any claim, and such a dismissal, if accepted by the trial court, deprives the court of jurisdiction over the subject matter of the claim dismissed.” Cutler v. Cutler, 84 So. 3d 1172 (Fla. 3d DCA 2012). The plaintiff’s right to voluntarily dismiss its own lawsuit is almost absolute, with exceptions for fraud on the court and child custody. Tobkin v. State, 777 So. 2d 1160, 1162 (Fla. 4th DCA 2001). Here, there was no allegation of fraud. Further-more, the trial court specifically found that the original petition was withdrawn and that all motions attacking the petition were therefore moot. Once the trial court accepted the withdrawal, it lost jurisdiction over the case. Thus, the court could not find that Kardos had standing to file the Second Petition in the same case or that the parties could set hearings on outstanding discovery motions.

Jasser v. Saadeh

In an earlier case, Jasser v. Saadeh, 97 So.2d 241 (4th DCA 2012), the petition for incapacity was filed.  After some litigation, but before the alleged incapacitated person was adjudicated incapacitated, the parties (the AIP, children, and ETG) purportedly settled the case and sought to dismiss the proceedings.  After the settlement fell apart, an appeal from many of the orders of the guardianship court was had.  The appellate court held that the Petition for Incapacity could not be dismissed, as follows:

The statutes and rules do not provide for the dismissal of a petition to determine the incapacity of an individual before the actual determination of the issue. In Borden v. Guardianship of Borden-Moore, 818 So. 2d 604 (Fla. 5th DCA 2002), the court held that a petition for guardianship could not be dismissed before receiving the report of the examining committee.  Section 744.331 contemplates that once a facially sufficient petition to determine incapacity has been filed, the court must ensure that the alleged incapacitated person has an attorney, that an appropriately qualified examining committee promptly examines the person, and that an adjudicatory hearing be set no more than fourteen days after the filing of the report of the examining committee, unless good cause is shown to extend that time. Compliance with the requirements of section 744.331 is mandatory and the trial court’s failure to adhere to those requirements constitutes reversible error. Id. at 608-09. See § 744. 331(4), Fla. Stat. (2008); see also In re Keene, 343 So. 2d 916, 917 (Fla. 4th DCA 1977) (“Proceedings to determine the competency of a person are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed.”) An attorney for the person may not waive an adjudicatory hearing when required. See In re Frederick, 508 So. 2d 44, 45 (Fla. 4th DCA 1987).

There is good reason for such a rule. If a person is incompetent, it is the duty of the court to assure that person’s protection and his or her autonomy is respected to the greatest extent possible. See § 744.1012, Fla. Stat. (2008). To permit dismissal of proceedings where a party is in fact incompetent may endanger that person. On the other hand, without knowing whether the person is actually incompetent, the court could restrict a person’s independent ability to deal with his property and place it out of the control of a person who may be completely capacitated. The guardianship statutes and rules should not be used to protect competent persons from their spendthrift ways or to protect their beneficiaries. An individual who is competent should not be subject to the control of the courts through guardianship proceedings, temporary or plenary.

That the order dismissing the plenary guardianship proceedings was a nullity is further supported by the fact that the order did not dismiss the petition for emergency temporary guardian, revoke the letters of guardianship, or terminate the same. Section 744.3031(1), Florida Statutes (2008), permits the appointment of an ETG only after a petition for determination of incapacity has been filed. For an ETG to be appointed there must be a pending determination of incapacity. As such, the court could not dismiss the petition for incapacity and retain the ETG. Unfortunately, that is what occurred in these proceedings.

Forman v. Gort

Voluntary dismissal or settlement of a guardianship proceeding has been a hotly debated issue in Florida guardianship practice.  In Forman v. Gort, (4th DCA 2016), a settlement agreement entered into by an alleged incapacitated person prior to a hearing on incapacity was upheld.  William petitioned to have his brother Adam declared incapacitated and for the appointment of an emergency temporary guardian.  Adam suffered from some mental health issues, including schizophrenia and hallucinations.  Adam opposed William’s petition.  Adam’s cousin, Lisa, petitioned to determine Adam’s capacity and to be appointed guardian.

As required by Florida Statute, an examining committee was appointed.  All three examining committee members found that Adam was incapacitated and lacked capacity to contract.  The Florida guardianship court ordered the parties to mediation prior to an incapacity hearing.  The parties reached a settlement.  William and Lisa agreed to dismiss the pending petitions to determine incapacity.  Adam and Lisa agreed to keep William updated as to Adam’s status and included terms in the settlement agreement to keep the lines of communication open between the brothers.  Pursuant to the settlement agreement, the pending petitions were voluntarily dismissed.  The settlement agreement was filed with the court.

Over a year later, William filed an action against Adam and Lisa, seeking a declaration from the court that the settlement agreement was valid and enforceable.  Adam submitted an affidavit essentially outlining that his life has improved since the settlement agreement, that he did not want communication with his brother, and that he felt pressured to sign the settlement agreement, fearing that he might be institutionalized if he did not sign.

The Florida probate court entered summary judgment in favor of William, finding in part that it “was not improper for the parties to enter into the settlement agreement after a petition to determine incapacity had been filed but before an adjudicatory hearing because there is no requirement for an adjudicatory hearing every time a petition is filed.”

Adam and Lisa appealed the summary judgment order.  They argued that the settlement agreement was void under Florida law and public policy because the petition for incapacity could not be dismissed without the statutorily required adjudicatory hearing on incapacity.

The Florida appellate court upheld the summary judgment.  Incapacity proceedings are controlled by statute.  Section 744.331, Florida Statutes (2012) provides that:

[W]hen a petition to determine incapacity is filed, a court must appoint an attorney to represent the alleged incapacitated person, and within five days of the petition, the court shall appoint an examining committee of three members to examine the alleged incapacitated person, all of whom are to file their reports with the court.

The statute also provides that the court shall dismiss a petition if the examining committee members conclude that the person is not incapacitated.  But, the Florida statute is silent on whether a court is required to hold an adjudicatory hearing every time a petition is filed, and is also silent on whether a party may voluntarily dismiss a petition to determine incapacity. 

Adam argued to the Florida appellate court that Jasser prohibits the voluntary dismissal of a petition prior to adjudicatory hearing.  In Jasser, an emergency temporary guardian (ETG) was appointed for an alleged incapacitated person, Saadeh, diagnosed with Alzheimer’s and in danger of financial abuse.  Saadeh’s rights were delegated to an ETG.  The court did not make a formal determination of incapacity.  After the ETG’s appointment, an agreed order was submitted to the court by the ETG’s attorney and Saadeh’s court-appointed attorney to “settle” the guardianship.  Saadeh was required to execute a trust, and all pending incapacity proceedings were dismissed.  Saadeh petitioned to revoke the trust he had been required to execute by the agreed order, arguing that he lacked legal capacity to enter it.  The Florida probate court granted summary judgment in his favor, because all of Saadeh’s legal rights had been transferred to the ETG at the time the trust was executed.  The Florida appellate court upheld the summary judgment. 

The Florida appellate court distinguished the instant case from Jasser.  In this case, Adam was not suffering from Alzheimer’s, but instead from a mental health disorder which appears controllable when he is properly medicated.  Adam did not complain about the settlement agreement until over a year after dismissal of the petition to determine incapacity.  Also, the examining reports were never considered at a formal adjudicatory hearing, and there was no trial court determination that Adam was incapacitated.  The Florida appellate court found that:

Because our guardianship and probate rules do not prohibit a party from voluntarily dismissing a petition to determine incapacity, and section 744.311 does not mandate an adjudicatory hearing, the trial court did not err in finding the settlement agreement did not violate Florida law or public policy.

The dissenting opinion urged that once an examining committee has been appointed, a petition for determination of incapacity cannot be voluntarily dismissed by a petitioner unless a majority of the examining committee finds that the alleged incapacitated person is not incapacitated.  This is for the protection of the alleged incapacitated person, who could actually be incompetent and lack the ability to enter into a valid settlement agreement.


The guardianship law in Florida is now somewhat tangled on dismissal, but one point is obvious:  do not file a petition for incapacity unless (a) the alleged incapacitated person is truly incapacitated, and (b) you understand that you may not be able to withdraw the petition.  Using a petition for incapacity as a tool to coerce settlement or some other behavior is therefore not acceptable (not that it ever was). 

Oral Argument at 5th District Court of Appeals

Jeffrey Skatoff

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(561) 842-4868


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