Blogs from January, 2013


When there are concerns that a loved one may have limited mental capacity, it may be appropriate to petition the Court for implementation of a guardianship.  However, courts view guardianships as a last resort, and they will not usually grant them if there is a sufficient less restrictive alternative to guardianship.  Examples of these less restrictive alternatives would be a power of attorney, a healthcare surrogate, and/or a trust.

Nevertheless, there are times when courts have to intervene and initiate a guardianship.  Once a petition to determine incapacity is filed, the court orders that three (3) examining committee members assess the alleged incapacitated person’s mental health and they provide recommendations to the court as to whether or not they believe that a guardianship should be initiated by the court.

However, there has been some recent case law that may shed some light as to how strictly the court should consider these examining committee reports.  In Rothman v Rothman, 93 So.3d 1052 (Fla. 4th DCA 2012), a petition to determine incapacity was filed and the examining committee member performed their assessment of the alleged incapacitated person.  Two (2) of the three (3) committee members found there to be no incapacity, while the other recommended a limited guardianship.  Pursuant to Fla. Stat. 744.331(4), the alleged incapacitated person requested the dismissal of the petition because a majority of the committee members concluded that there is no incapacity.  The trial court found Fla. Stat. 744.331(4) to be unconstitutional and denied the dismissal of the petition.  This court order was later appealed, and the appellate court cited In re Keene, 343 So.2d 916 (Fla. 4th DCA 1977), which held that Fla. Stat. 744.331(4) should be strictly construed by the court and, as a result, the appellate court found that the trial court had erred in not dismissing the petition.

Guardianship should be viewed as a last resort; however, there are restrictions that the court must consider in determining how to handle a proposed guardianship.  Although courts are given great deference in assessing most situations, there is a proper procedure that the court must follow in implementing a guardianship and it is reversible error for the court to disregard these rules.

If you are concerned for a loved one's mental health and his or her ability to handle their finances, it would be wise to contact a Florida guardianship attorney to assess the viability and appropriateness of initiating a guardianship.


Most Recent Posts from January, 2013