Florida Probate, Trust & Guardianship Litigation

How to Prove Less Restrictive Alternative to a Guardianship

Florida guardianship statutes, the Florida probate rules, and the general rules of Florida civil procedure often operate together to dictate the rights and deadlines that a party has in a given proceeding. In Adelman v. Elfenbein, 4D13-2446 (4th DCA 2015), the Florida appellate court determined that the Florida guardianship statutes and related Florida probate and procedure rules deprived the Florida guardianship court of jurisdiction to enter an order appointing a plenary guardian of Burton Adelman.

Adelman’s grandniece instituted a guardianship proceeding to determine the capacity of Adelman.  After hearing, a general magistrate found that Adelman was incapacitated.  Once incapacity is found, the Florida guardianship court is required to either appoint a guardian or find that there is an alternative to guardianship.  If there is an alternative, then a guardian may not be appointed.  It is fully within the power of the guardianship court to find someone incapacitated and yet not appoint a guardian. 

Here, the Florida guardianship court found that a less restrictive alternative was available — Adelman had advance directive documents in place appointing his former spouse in charge of Adelman’s care.  The Florida guardianship court adopted the magistrate’s report and dismissed the grand niece’s petition for appointment of plenary guardian. 

Several months later, Adelman’s grandniece filed a petition to reopen the guardianship and for the appointment of a professional guardian, alleging that Adelman’s former spouse was not providing consistent adequate care.   Over Adelman and the former spouse’s objection, the Florida guardianship court entertained the grand niece’s petition, held a trial, and appointed a professional guardian for Adelman.

On review, the Florida appellate court reversed the Florida guardianship court for lack of jurisdiction to enter the order appointing the professional guardian.  The Florida appellate court’s ruling was based on strict construction of the Florida probate rules and guardianship statutes. Essentially, the grandniece had several opportunities to challenge the order of the Florida guardianship court that dismissed her initial petition for guardianship, but did not do so.

First, under the Florida probate rules the parties had 10 days to file exceptions to the magistrate’s report.  No one did.  The Florida guardianship court then issued its order approving and ratifying the magistrate’s report, and dismissing the grand niece’s petition for appointment as plenary guardian.  The parties had ten days to file a motion for rehearing from these orders.  They did not.  The parties had 30 days to file an appeal from the orders, but did not do so.

The grand niece’s petition to reopen guardianship was filed almost six months after the Florida guardianship court’s orders became final.  The petition was not based on any rule or statute, but instead was premised on the Florida guardianship court’s continuing responsibility to take care of those unable to care for themselves.  The appellate court found that:

[T]his ongoing jurisdiction of the circuit court in an incapacity proceeding does not exist unless a guardian is appointed.  In our present day paternalistic society we must take care that in our zeal for protecting those who cannot protect themselves we do not unnecessarily deprive them of some rather precious individual rights….The legislature did not envision keeping cases open indefinitely where alternatives to guardianship have been established and the court has found that no guardian is required.

Adelman’s advance directive documents entrusted his affairs to his former spouse.  The former spouse’s role as fiduciary and the laws of Florida were found to be more than adequate to protect Adelman from future exploitation and abuse. 

The lesson from this case is that if you have an issue with an order entered by a Florida guardianship or probate court, it is important to determine any deadlines to move for a rehearing or to appeal the order.  Knowing the procedural requirements in a Florida guardianship or probate court can save everyone a lot of time and expense.

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


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