What happens if someone files a guardianship case in Florida and then dismisses it? Is the guardianship really over? What if someone files a guardianship petition in that same action? Florida’s 5th District Court of Appeal dealt with this issue in a November 20, 2014 opinion.
How do I file a Florida Guardianship?
- To file a Florida guardianship for an adult, like your mother or dad who suffers fromdementia, you need to file a petition in the probate court
- Any guardianship lawyer Palm Beach Gardens will tell you that there are typically two guardianship petitions filed at the beginning
- One guardianship petition is the petition to determine incapacity also called a petition to determine capacity
- The petitioner alleges that the person who is the subject of this guardianship matter, called the alleged incapacitated person, needs help and assistance: needs to be protected and that person can’t make his or her own decisions on some, or all, matters
- Your guardianship lawyer West Palm Beach will typically also file a second guardianship petition called a petition to appoint guardian, where you ask the probate court Delray Beach to appoint a guardian to make decisions for the incapacited person (now called a Ward under Palm Beach Probate) and perhaps manage the Ward’s’money
Florida Guardianship Appeal
- To appeal a Florida guardianship matter, keep in mind that probate rules in Florida for appeals were changed a couple of years ago
- How do I appeal Florida guardianship matters?
- The appellate rules in Florida, to appeal guardianship rulings of Palm Beach probate courts are unique.
Daughter Files Guardianship Over Mother
- What do you do if you have capacity and your daughter files a Florida guardianship petition over you?
- Put another way: how do you appeal a Florida guardianship that your daughter filed if you don’t need a Florida guardian?
- Here are the facts of this recent Florida guardianship case:
- Originally, daughter filed a guardianship action over mother which she withdrew
- After that, a second guardianship petition was filed
- The Florida appeals court said that the probate court or the guardianship court lost jurisdiction over the Florida guardianship when the first petition was dismissed
- A Florida writ of prohibition was GRANTED ending the guardianship case
- March 31, 2014: a guardianship petition is filed
- An emergency temporary guardian was also sought under the Guardianship Code
- April 2, 2014: the petitioner is appointed emergency temporary guardian
- April 9, 2014: the emergency temporary guardian resigns
- April 10, 2014: a professional guardian Florida applied and was appointed as the NEW emergency temporary guardian
- April 28, 2014: guardianship proceedings declared adversary, under Florida Probate Rule 5.025
- May 19, 2014: the Ward — the WARD — filed an emergency motion to set aside the order appointing the professional guardian.
- In other words, the person who is allegedly incapacitated is saying “end the guardianship: I’m OK”
- The probate court set aside the guardianship
- More legal wrangling
- May 25, 2014: the first petition is withdrawn: a notice of withdrawal is filed in the guardianship court Florida
- July 29, 2014: a second petition for guardianship is filed
- The probate court said that the second petition could be heard
- The Florida appeals court granted the writ of prohibition saying that the probate court lost jurisdiction over the guardianship Florida when the first petition was withdrawn
What is a writ of prohibition in Florida?
The Florida appeals concept of a writ of prohibition is discussed in this case.
You can read it for free online at the website for Florida’s 5th District Court of Appeal. The case is Katke v. Bersche and it is No. 5D14-3210. Justice Wallis wrote the opinion.
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