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First DCA Doesn’t Compel Probate Court to Appoint Guardian for Incapacitated Ward

Uncategorized Feb 3, 2017
post about First DCA Doesn’t Compel Probate Court to Appoint Guardian for Incapacitated Ward

What do you do if the probate court has concluded – by an order with findings of fact—that the AIP is partially incapacitated, but does NOT appoint a guardian (and, evidently, there is no lesser restrictive alternative)?   File a motion asking the Probate Court to appoint a guardian within X days. You may want to read the January 10, 2017, 1st District Court of Appeal (DCA) opinion in Cason v. Ross, a guardianship matter. You must make an express request that the trial court enter an order appointing a guardian if one is not being appointed and a guardian is required or needed.  

In this case, the DCA agreed that a probate court has an obligation to appoint a guardian if one is incapacitated, citing  Jasser v. Saadeh, 97  So, 3d 241 (Fla. 4th DCA, 2012).  But the writ of mandamus being sought was not issued: relief was denied by the 1st.  Why?  The 1st said that there is no authority that a probate court must appoint a guardian within a specific time frame. That’s right: the DCA said there is no authority that imposes a time deadline to appoint a guardian.  Hmmm…….  It seems that, at least in the 1st District, a “reasonable amount of time” won’t be inferred, evidently, even when the protection and security of a Ward is at issue.   Hmmm………………..So, if you are not getting your order appointing a guardian after a finding of partial or complete incapacity: keep asking, get a court reporter, have a hearing, and talk to a board certified appellate attorney like my law partner Robert Hauser, about getting a writ at your DCA.

-John Pankauski, Esq.