Rubin on Probate Litigation

Zelman v. Zelman , 175 So.3d 871 (Fla. 4th DCA 2015), 2015 WL 5125439 Does a spouse have a due process right to be heard, call witnesses and present evidence at an incapacity hearing?  The Court in this decision held that because a spouse is an interested person, the spouse has standing to participate in the guardianship proceeding, and that participation must be meaningful.  Meaningful participation must be more than being allowed to be present and to speak- the spouse has the right to introduce evidence at a meaningful time and in a meaningful manner.  This is because the effect of a guardianship proceeding on a spouse is extensive.  The proceeding can impact the marriage, the marital home and the marital finances.  A spouse is also in a position to weigh in on what is in the ward's best interests.  Here, because the trial judge precluded the spouse from participating in the proceeding, the Court reversed the guardianship orders and remanded the case ...

Barrier v. JFK Medical Center Ltd. Partnership , 169 So.3d 185 (Fla. 4th DCA 2015) This decision centered around when the knowledge of a guardian is imputed to the ward for purposes of bringing a medical malpractice suit.  Here, the mother of the ward was first appointed as ETG of her son.  After sixty days, her son was determined to be incompetent and she was appointed as plenary guardian of his person and property.  The issue on appeal was whether her appointment as ETG created a legal duty towards her son such that any knowledge of medical malpractice the guardian may have acquired could be imputed to her son and thus trigger the commencement of the statute of limitations.  The Court held that since the appointment of an ETG is an interim measure, which gave the mother only the authority to make medical decisions for her son and manage his medical and financial affairs until the appointment of a permanent guardian, she did not have a duty as ETG to file a mal...

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 a...