Searle v. Brent
Searle v. Brent, 2013 WL 5225218 (Fla. 2d DCA 2013)
In guardianship proceedings, the court is required to consider whether a less restrictive alternative to guardianship exists before giving a ward's rights to a guardian. Here, a daughter brought a guardianship proceeding to determine her mother's capacity, because she feared her mother was being taken advantage of by her caregivers. The court held an evidentiary hearing and heard testimony, and then declared the mother to be incapacitated and appointed a guardian.
In this appeal, the mother argued that the trial court erred by not considering less restrictive alternatives to guardianship. Her daughter had filed a "Verified Statement by Interested Person Pursuant to F.S. 744.331(6)(f)," alleging that her mother's estate planning documents were invalid because of her mother's lack of capacity and/or undue influence. In her verified statement, she included facts and finding by medical experts. The court held that the verified statement provided a reasonable factual basis for it to believe that the estate planning documents were invalid and not an available less restrictive alternative to guardianship.
The mother felt that the trial court violated her right to due process by in effect invalidating her estate plan based on an affidavit. The Court held that the verified statement complied with the plain language of F.S. 744.331(6)(f), and explained that it was not invalidating the estate plan, but rather simply finding that the estate plan was not a less restrictive alternative to guardianship.
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