Rubin on Probate Litigation

Sarfaty v. M.S. , --- So. 3d --- (Fla. 3d DCA 2017) In this guardianship decision, the Court considered how strictly to interpret F.S. 744.331 and FPR 5.550, dealing with the required procedures following the filing of a petition to determine incapacity. It held in situations like this one, where the procedural deficiencies were a result of actions of the parties and occurred with everyone's knowledge, such deficiencies are not enough to result in a dismissal of the petition without leave to amend. The alleged deficiencies were twofold.  First, counsel for the AIP argued that the petition should be dismissed because of the alleged failure of court-appointed counsel to read the petition and form notice to the AIP.  Second, counsel argued that the petition should be dismissed because the examining committee members did not file their reports within the fifteen day period required by F.S. 744.331(3)(e).  The trial court dismissed the petition and ruled orally that a...

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...