Adelman v. Elfenbein

Adelman v. Elfenbein, 174 So.3d 516 (Fla. 4th DCA 2015), 2015 WL 5026178

Following the dismissal of a petition for incapacity because the court found sufficient least restrictive alternatives to guardianship, the petitioner brought a subsequent "petition to reopen" the guardianship, alleging that the fiduciary appointed in the alleged incapacitated person's advance directive documents was not providing adequate care for that person. The trial court entertained the petition, conducted a trial, and ultimately appointed a professional guardian for the ward. 

The Court reversed, holding that the trial court lacked jurisdiction to enter the order appointing the professional guardian.  It held that once a court makes an appropriate finding of least restrictive alternatives to guardianship and chooses not to appoint a guardian, the appropriate method for reviewing that finding is by filing a timely motion for rehearing pursuant to Fla. Prob. R. 5.020(d), or filing an appeal pursuant to Fla. Prob. R. 5.100 and Fla. R. App. P. 9.130(b).  Because the petitioner did neither, the trial court no longer had continuing jurisdiction over the incapacity proceeding.  The Court did not agree that the trial court has parens patriae responsibility to the alleged incapacitated person, and that the law provides adequate remedies to prevent abuse by a fiduciary pursuant to an advanced directive, through the Florida Power of Attorney Act (F.S. 709.2101-.2402) and the Adult Protective Services Act (F.S. 415.101-.113).


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