Rubin on Probate Litigation

In re Guardianship of Jones , 243 So.3d 503 (Fla. 2nd DCA 2018) This decision construes the language in F.S. 744.312 regarding the appointment of an emergency temporary guardian who is a professional guardian as the permanent guardian of a ward. The Court construed the language of the statute and the findings of fact in the trial court order, and found that the requirements had been met for this emergency temporary guardian to stay on as permanent guardian for the ward. Specifically, F.S. 744.312(4)(b) provides as follows: "An emergency temporary guardian who is a professional guardian may not be appointed as permanent guardian of a ward unless one of the next of kin of the alleged incapacitated person or the ward requests that the professional guardian be appointed as permanent guardian. The court may waive the limitations of this paragraph if the special requirements of the guardianship demand that the court appoint a guardian because he or she has special talent or s...

In re Guardianship of Beck , 204 So.3d 143 (Fla. 2d DCA 2016) In this decision, the Court considered whether F.S. 744.108(1) authorizes an award of fees and costs incurred by counsel for an emergency temporary guardian and counsel for a ward who was the subject of an emergency temporary guardianship when there was no later determination that the ward was actually incapacitated, and no guardian was appointed.  In this instance, an emergency temporary guardian was appointed, but the ward passed away before any determination of incapacity was made.   Counsel for the petitioner, the emergency temporary guardian and the alleged incapacitated person all sought reimbursement of their fees and costs.  The trial court held that F.S. 744.108(1) did not permit an award of fees and costs before a guardian over the ward is appointed.  The Appellate Court reversed. (1) Fees and costs of attorney for emergency temporary guardian.  The Court first held that the at...

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...

Flegal v. Guardianship of Swistock , 169 So.3d 278 (Fla. 4th DCA 2015), 2015 WL 4269079 This case centered around the ownership of stock shares and due process within a guardianship proceeding.  The dispute arose over the ownership of stock shares which were initially purchased by a father and his daughters as joint tenants with right of survivorship. Prior to his incapacity, the father sued his daughters in Pennsylvania over ownership of these shares.  He claimed even though he had transferred the shares to his daughters as joint tenants with rights of survivorship, he did not actually intend to gift the stock to them.  As evidence of this intent, he established that he had paid for the stock, kept possession of the certificates, retained all dividends and paid income taxes on the dividends.  He asked the daughters to sign the stock back to him, but they refused, so he sought a declaration that he was the sole owner of the stock. While this litigation w...

Saadeh v. Connors ,  166 So.3d 959  (Fla. 4th DCA 2015) In this portion of the Saadeh guardianship saga, the court was asked to determine whether an attorney representing a court-appointed guardian in a guardianship proceeding owes a duty to the ward under a third-party beneficiary theory.  The Court ultimately found that it did.  This case began with an emergency temporary guardianship proceeding, in which a court-appointed attorney was appointed to represent the alleged incapacitated person, a professional guardian was appointed, and that guardian had his own counsel.  As part of an "agreed" order to "settle" the guardianship, the court entered an ordered agreeing that the alleged incapacitated person would execute a trust instead of a plenary guardianship.  The agreed order did not settle the matter, unfortunately, and the litigation continued. Eventually, the alleged incapacitated person was found competent and brought suit against multiple play...

Katke v. Bersche , 161 So.3d 574 (Fla. 5th DCA 2014), 2014 WL 6488688 In this contested guardianship, there were two petitions filed to determine the alleged incapacitated person's incapacity.  First, the AIP's daughter filed her petition and was appointed as ETG.  She subsequently resigned as ETG and an unrelated professional guardian applied and was appointed as ETG.  The AIP filed an emergency motion to set aside the order appointing both her daughter and the professional guardian as her ETG, which the trial court granted based on lack of service and notice to the AIP. The AIP next filed an emergency motion to dismiss her daughter's petition.  The daughter withdrew her petition.  Before the trial court heard the motion to dismiss, the professional guardian filed her petition in the same case number as the  daughter.  The AIP filed a motion to strike that petition and sought a writ of prohibition after the court determined that it could proc...

Mack v. Polsby , --- So.3d --- (Fla. 3d DCA 2014), 2014 WL 54895 The dispute in this case centered around a revocable trust created by an emergency temporary guardian.  The ward, and eventual decedent, had four children.  After he suffered from a stroke and went into a coma, his daughter filed a petition seeking to be appointed as her father's emergency temporary guardian.  The court granted her petition, and also granted a later petition allowing her to create and fund a revocable trust.  Following the court's order allowing her to create the trust, the daughter funded the trust with her father's property in Michigan. When the father ultimately passed away, one of his sons was appointed personal representative of his estate in Michigan.  The son then filed a Complaint against his sister, which sought a declaration that the trust was invalid and that the sister breached her fiduciary duty as trustee and removal of the sister as trustee.  By the tim...

In re Guardianship of Klatthaar , --- So.3d --- (Fla. 2d DCA 2014), 2014 WL 51382 In guardianship proceedings, until incapacity is determined and a guardian is appointed, fees of the various attorneys involved and the members of the examining committee may rack up without any method for payment.  Once a guardianship is established, the law is clear about payment of the fees.  But if a guardianship is never established, as the Court correctly points out in this decision, there is a hole in our statute that leaves attorneys and examining committee members with no ability to be paid for their work. In this case, the alleged incapacitated person died before a final determination of incapacity was rendered.  A petition was filed and an ordered was entered for the fees and costs of the attorney for the petitioner, the attorney for the alleged incapacitated person and the members of the examining committee.  The personal representative of the decedent's estate appe...

Martinez v. Cramer , 121 So.3d 580 (Fla. 3d DCA 2013) NOTE: THIS DECISION SUPERSEDES THE DECISION DISCUSSED  HERE The Court withdrew its opinion dated June 19, 2013, and released this new opinion which reversed and remanded the appointment of an emergency temporary guardian since counsel was not appointed for the Ward until after  the appointment of the emergency temporary guardian.  In its earlier opinion, the Court found that since the appointment of the emergency temporary guardian remained in effect after counsel was appointed for the Ward, the failure to appoint counsel did not rise to the level of reversible error.

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...