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Emergency Temporary Guardianship in Florida

Emergency Temporary Guardianship in Florida

In this article, we’ll break down the following:

Age, illness, or accidents can render an individual incapacitated and unable to care for themselves or make decisions regarding their health or finances. The traditional guardianship process in Florida can take several weeks or months to complete. It involves thorough medical evaluations and multiple court hearings to determine an individual’s capability.

You might find yourself in a position where waiting for the lengthy court process to conclude isn’t an option. Your loved one may become suddenly incapacitated and immediate decisions regarding their welfare or assets are required.

This guide explores the legal aspects, requirements, and procedures for emergency temporary guardianship in Florida.

Emergency guardianship is a precursor to the court appointing a guardian to an alleged incapacitated person (AIP). If you believe that the safety or well-being of your loved one is in danger or that their assets face the risk of wastage or misappropriation, you can move quickly to petition the court to grant you an emergency temporary guardianship.

This action, in effect, freezes the AIP’s assets and names someone (a temporary guardian) to take over their decision-making rights until the court determines whether they are indeed incapacitated before appointing a final guardian.

Criteria for Granting Emergency Temporary Guardianship

According to the provisions of Florida Statutes Section 744.3031, courts have the mandate to appoint a temporary guardian if:

  1. An individual’s health or well-being is deemed to be in imminent danger; or
  2. If their property is at risk of being wasted, embezzled, or lost if immediate action isn’t taken.

Depending on the alleged level of the individual’s incapacitation, the temporary guardian may be appointed as the guardian of the person, the property, or both. They can assume guardianship after the Petition to Determine Incapacitation has been filed.

Individuals interested in the AIP’s welfare or even the AIP themselves may petition the court to appoint an emergency temporary guardian.

Procedures for Obtaining Emergency Temporary Guardianship

Here is a breakdown of the process for obtaining an emergency temporary guardianship of the person, property, or both.

1. Filing a Petition for Emergency Temporary Guardianship

The process begins by filing a petition for emergency temporary guardianship. The petition must include the following details:

  • The petitioner’s name and physical and mailing address;
  • The AIP’s name, age, and physical and mailing address;
  • A statement indicating that the AIP’s physical or mental safety or health appears to be in imminent danger or that their property appears to be in danger of wastage, loss, or misappropriation unless immediate intervention is taken;
  • A description of the nature of the emergency and the reason immediate action is required;
  • The scope of the emergency temporary guardianship being sought for the AIP (limited or plenary) and the value and nature of the property that’s the subject of the guardianship;
  • Names and addresses of the AIP’s next of kin;
  • The proposed emergency temporary guardian’s name, their physical and mailing address, and proof that they are qualified to serve as guardian or that a qualified and willing guardian has not been found; and
  • The proposed guardian’s current relationship to or prior association with the AIP.

2. Serving Notice

The AIP or their attorney must then be served with notice of filing and notice of the hearing at least 24 hours before the scheduled hearing. The only exception is if the petitioner demonstrates to the court that serving the 24-hour notice to the AIP would result in significant harm.

3. Responding to Claims of Incapacitation

Florida Statutes Section 744.3031(1) requires that an AIP must be represented by counsel. The AIP can be represented by their attorney or one appointed by the court. The attorney must then visit the ward as soon as possible and review the claims made by the petitioner.

Role of Emergency Court Monitors in the Process

Under Florida Statutes Section 744.1075(1)(a), the court may appoint an emergency court monitor to seek information, investigate, review documents (medical or otherwise), or interview the ward. The monitor must then compile a verified report of their findings and submit it to the court or any other person as determined by the court.

The monitor’s role is to evaluate whether the ward is in any imminent mental or physical danger that could result in serious impairment or whether the ward’s property is in danger of wastage or misappropriation. The court will usually define the scope of the monitor’s duties and powers.

The emergency court monitor’s authority is only valid for 60 days from their appointment date or until they find no probable cause for issuing an emergency temporary guardianship. However, their authority may be extended by a further 30 days if it can be shown that the emergency conditions still exist.

The monitor has 15 days to file a verified report detailing the findings of their investigations, proposed recommendations, supporting documentation, and any evidence or information relevant to the court.

The court will then review this information to determine if there is probable cause to appoint a guardian of the ward’s person, property, or both. If no probable cause is found, the monitor will be discharged from their duty.

4. Appointment of an Emergency Temporary Guardian

A hearing will then be held shortly after for the ward’s attorney to advise the presiding judge on whether the allegations made in the petition for emergency temporary guardianship are accurate and whether a temporary guardian needs to be appointed.

If it is determined that a guardian is indeed required, the judge will appoint one immediately after the hearing concludes. The order issued for the appointment of an emergency temporary guardian must specify their duties and responsibilities before the court issues letters of emergency temporary guardianship.

The court’s role in granting temporary guardianship is to safeguard the ward’s interests and well-being if they face imminent risk due to incapacity.

5. Duration of Emergency Temporary Guardianship

An emergency guardian’s authority over the ward is only valid for 90 days from their appointment date or until the final guardian is appointed—whichever happens first.

If, after these 90 days, the court has not appointed a guardian, and it can be shown that the emergency situation still exists, a 90-day extension may be granted.

The petitioner must, once again, file a petition for an extension of the emergency temporary guardianship and serve the ward’s attorney and the emergency temporary guardian with notice of the same.

6. Monitoring and Reporting

Once the emergency temporary guardianship expires, the guardian must file a final report with the court within 30 days of the guardianship’s expiration under the provisions of Florida Statutes 744.3031(9).

If the emergency temporary guardian was the guardian of the property, they must file with the court an inventory of the ward’s assets at the date the emergency guardianship started and at the date of its termination. They are also required to file a final accounting report.

If the temporary guardian goes on to become the limited or plenary guardian of the property, the final report of the emergency temporary guardianship must tally with the initial report of the guardian of the property.

If the emergency guardian was the guardian of the person, the final report must detail the temporary guardian’s activities with regard to the ward’s mental health, medical, and social status, and their residential placement based on the authority bestowed upon them by the court.

If the temporary guardian becomes the limited or plenary guardian of the person, the final report of the emergency temporary guardianship must also tally with the initial report of the guardian of the person.

Limitations and Challenges of Emergency Temporary Guardianship

Young woman kissing elderly mother on the cheek

When an interested party files a Petition to Determine Incapacity, granting guardianship can take several months to complete. There’s no telling what could go wrong during that time.

Due to the legal implications and restrictive nature of guardianship, courts must be thorough in their due diligence process when determining a lack of capacity. Granting a guardianship petition strips the AIP of most of their rights and autonomy and delegates them to the guardian.

They can no longer make decisions regarding their health or finances themselves. For this reason, guardianship is often the last resort after other, less restrictive alternatives prove inadequate in the current circumstances.

If an AIP is deemed to lack capacity, and they or their property faces imminent danger, immediate intervention is required. The time-sensitive nature of such cases also means that the procedural requirements necessary for granting traditional guardianship are deferred because of the urgency of the situation.

If, in the unfortunate case, the actions of the emergency temporary guardian pose an imminent risk to the ward’s well-being, the court can restrict or suspend the guardian’s authority and call for a hearing to determine whether to revoke or restrict their powers or substitute the person entirely.

If a temporary substitute guardian is appointed, the court will issue them with letters of guardianship detailing their duties and powers, which may be the same as those in the previous order or modified at the court’s discretion.

Case Studies and Examples of Emergency Temporary Guardianships

  • A mother petitioned the court to be appointed emergency temporary guardian of her son’s person and property. Her son suffered cardiac arrest from a drug overdose and went into a coma from which he did not emerge. In her petition, the mother alleged that because her son was still in a coma, he needed an emergency guardian to manage his medical and financial affairs, file insurance claims, and make medical decisions on his behalf. The court approved her petition, granting her plenary guardianship of the person and property. Before the period of temporary guardianship expired, the son was determined to be incompetent. His mother was appointed his plenary guardian of his person and property. Barrier v. JFK Medical Center Ltd. Partnership, 169 So. 3d 185 (Fla. Dist. Ct. App. 2015)
  • A widow, who was the personal representative of her deceased husband’s estate, filed a petition for a review of court orders that indefinitely extended the temporary guardianship of the deceased’s daughter over his person and property. The widow asserted that the court’s decision to extend the guardianship encroached upon her authority as the personal representative of the estate. Before his death, the deceased was removed from his marital home and brought into his daughter’s home after his wife was charged with spousal abuse. After the ward’s death, the daughter filed for an indefinite extension of temporary guardianship of the person and property, which the court granted without a hearing. The court approved the widow’s petition and the writ of certiorari, quashing the temporary emergency guardianship order. Batzle v. Baraso, 776 So. 2d 1107 (Fla. Dist. Ct. App. 2001)

Best Practices and Recommendations

Here are some useful tips to remember when filing a petition for emergency temporary guardianship over a loved one.

Ensure You Have Proper Documentation

The most common cause for seeking an emergency temporary guardianship is when an individual’s physical or mental safety or health is in imminent danger. It is also sought when their assets face imminent risk of loss or misappropriation.

Before a court can grant a petition for temporary guardianship, it will conduct a hearing to review the circumstances and determine whether an emergency guardian is warranted.  Ensure you work with your guardianship attorney to compile the necessary documentation and medical evaluation reports to show cause.

Collaboration between legal professionals and skilled medical professionals is crucial in emergency guardianship cases.

Know Your Rights and Duties

If you choose to be appointed emergency temporary guardian, ensure you understand the responsibilities you’ll be required to take up as dictated in the guardianship order. While the order is meant to last 60 days, it could be extended depending on the circumstances of the case.

The responsibility of being a guardian can be daunting, so you need to work closely with an experienced attorney to help you navigate the process.

Final Thoughts

Dealing with potential guardianship issues can be stressful and overwhelming, especially when doing it alone. An attorney can hold your hand and guide you through the process to ensure you safeguard the interests and well-being of your loved one.

An order granting you emergency temporary guardianship will ensure you move quickly to protect your loved one’s welfare or assets from imminent harm or loss.

Don’t wait until it’s too late. Please feel free to get in touch with us for legal advice on your specific case.

Do You Need a Plantation Guardianship Attorney?

In Florida, the court requires that guardians have an attorney of record. The good news about having a guardianship attorney by your side is that it can help you better advocate for the adult or child in your care and avoid many of the issues that arise on a daily basis, including claims that a guardian stole from the ward and/or denied family members access to the ward.

A Plantation guardianship attorney should help you understand your legal rights, responsibilities, and the liabilities you’ll assume if guardianship is granted.

If you’re looking for the guidance and support of a lawyer to help you with your guardianship case, contact us today or give us a call at (954) 880-1302 for a free case evaluation. We’ll listen to your case and explain your rights.