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.