Martinez v. Cramer

Martinez v. Cramer, 4th DCA, Case No. 4D13-405, June 19, 2013

NOTE: THIS DECISION HAS BEEN SUPERSEDED, SEE DISCUSSION HERE

The Court held that an alleged incapacitated person is entitled to have counsel appointed at the same time that an emergency temporary guardian is appointed for that person.  Typically in guardianship, an alleged incapacitated person is entitled to have independent counsel to represent him or her.  In this case, the trial court had already determined that the AIP needed a guardian of the property (but not person), but a later dispute arose regarding where the Ward should reside.  At a hearing on a temporary injunction, the trial court decided to appoint an emergency temporary guardian for the Ward’s person, but did not appoint counsel for the Ward until after the emergency temporary guardian was appointed.  Appellant relied on F.S. 744.3031(1), the statute governing emergency temporary guardianship, which states that, “The court shall appoint counsel to represent the alleged incapacitated person during any such summary proceedings...” (emphasis added).  Appellee argued that the temporary injunction hearing was not a “summary proceeding” for purposes of emergency temporary guardianship.  The Court held that the trial court’s decision to appoint an emergency temporary guardian after hearing the evidence presented at the hearing on the temporary injunction converted the hearing into a “summary proceeding” for purposes of section 744.3031(1).

38 Fla. L. Weekly D1344c


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