M. Krumholz v. Guardianship of H.K.

M. Krumholz v. Guardianship of H.K., 114 So.3d 341 (Fla. 3d DCA 2013)

An order determining that an alleged incapacitated person (AIP) is totally incapacitated and appointing a plenary guardian to act on his or her behalf requires a recitation of the requisite findings of fact required by F.S. 744.331(6)(c).  F.S. 744.331(6)(c) requires that, "In determining that a person is totally incapacitated, the order must contain findings of fact demonstrating that the individual is totally without capacity to care for herself or himself or her or his property."

Here, the trial court entered an order determining the AIP was totally incapacitated, that there were no reasonable alternatives to guardianship, that no alternatives would sufficiently address the AIP's problems and needs, and appointed a professional guardian.  The order contained the following description of the nature and scope of the AIP's incapacities:

"Imminent danger that the physical or mental health or safety will be seriously impaired.  She suffers from dementia, memory loss and amnestic cognitive impairment and delusions."

Because there were no other findings of fact in the order, the Appellate Court found that the order failed to contain sufficient findings of fact to satisfy F.S. 744.331(6)(c).  Judge Rothenberg had presided over the initial hearing and had since retired.  Since he is now serving as a private mediator for similar types of cases, he is prevented from preparing an order because of Canon 5F(2) in the Florida Code of Judicial Conduct.  The cause was remanded for a new adjudicatory hearing before a successor judge.


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