CopyCited 41 times | Published | Florida 4th District Court of Appeal | 2005 WL 1226070
...Because Riva had been found by her physicians to have been incompetent because of senile dementia years earlier, and there was no evidence that her condition had changed in any way, the trial court's reliance on the power of attorney is unsupported by competent substantial evidence. [4] See § 744.3031(1) Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 11670, 2012 WL 2912950
...y. That the order dismissing the plenary guardianship proceedings was a nullity is further supported by the fact that the order did not dismiss the petition for emergency temporary guardian, revoke the letters of guardianship, or terminate the same. Section 744.3031(1), Florida Statutes (2008), permits the appointment of an ETG only after a petition for determination of incapacity has been filed....
...and terminated the ETG. The court was within its authority in these rulings. We agree with the trial court that when the court conferred the ward’s rights on the ETG, it removed them from the ward; both cannot simultaneously exercise those rights. Section 744.3031(1) provides that the court shall specify the rights to be exercised by the ETG....
CopyCited 5 times | Published | Supreme Court of Florida | 16 Fla. L. Weekly Supp. 557, 1991 Fla. LEXIS 1335, 1991 WL 169366
...ion of incapacity; (c) modification, termination, or revocation of the adjudication of incapacity; or (d) restoration of capacity. Committee Notes This is a new rule. It represents a rule implementation of the procedure found in sections
744.109 and
744.3031, Florida Statutes. It is not intended to change the effect of the statutes from which it is derived, or to create a new procedure or modify an existing procedure. Rule History 1991 Revision: New rule. Statutory References §
744.109, Fla. Stat. Records. *971 §
744.3031, Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...The circuit court then reviews the condition of the ward annually, or more frequently *432 by petition, pursuant to sections
744.369 and
744.3715. The court may appoint a guardian on its own motion if no petition for appointment of a guardian has been filed at the time of the order determining incapacity. §
744.3031, Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2248010
...atutes (2004), and to the DCF in chapter 415. Chapter 744 gives extensive authority to the judiciary to establish guardianships, including guardianships for persons who fall within the definition of "vulnerable adults" under section
415.102(26). See §
744.3031....
CopyCited 1 times | Published | Supreme Court of Florida | 32 Fla. L. Weekly Supp. 505, 2007 Fla. LEXIS 1234, 2007 WL 2002458
..., Florida Statutes (2006). See ch. 2005-140, § 4, Laws of Fla. (amending section
733.2121(3)(d), effective July 1, 2005). Finally, the Committee proposes new rule 5.648 (Emergency Temporary Guardian). The Committee did not address the amendments to section
744.3031, Florida Statutes ("Emergency temporary guardianship") made by chapter 2006-178, section 5, Laws of Florida, in its 2006 fast-track report....
...The proposed new rule incorporates the procedural aspects of the statute and provides additional procedural guidance to petitioners and emergency temporary guardians. Subdivision (a) of the rule addresses the contents of the petition and includes allegations satisfying the requirements of section 744.3031(1), Florida Statutes (2006); subdivision (b) provides that notice of the petition and any hearing on the petition must be served on the alleged incapacitated person and that person's attorney; subdivision (c) provides for service of...
...ner proposes that the public guardian be appointed as emergency temporary guardian; subdivision (d) provides that the order appointing the emergency temporary guardian must include a statement of the powers and duties of the guardian, as required by section 744.3031(1), Florida Statutes (2006); subdivision (e) provides the procedure to extend the authority of the emergency temporary guardian and carries out the intent of section 744.3031(3), Florida Statutes (2006); and, finally, subdivision (f) addresses the contents of the emergency temporary guardian's final report, incorporating the procedure now contained in section 744.3031(8), Florida Statutes (2006)....
...ust satisfy the requirements of, and shall serve as, the initial report of the guardian of the property or person of the ward, as the case may be, as set forth in rule 5.690. Committee Notes Rule History 2007 Revision: New rule. Statutory References § 744.3031, Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 13400, 2016 WL 4651336
...determine the capacity of their father, Ward. Pursuant to section
744.331, the trial
court appointed a three-person examining committee to assist the trial court in its
determination as to whether to appoint a guardian for Ward.
Pursuant to section
744.3031, the trial court also appointed Temporary
Guardian as the emergency temporary guardian of Ward and appointed counsel for
Ward....
CopyPublished | Florida 2nd District Court of Appeal
.... .").
After a petition to determine incapacity has been filed, but
before a guardian has been appointed, the trial court may appoint
an emergency temporary guardian for the person, property, or both,
of an alleged incapacitated person. § 744.3031(1)....
...While the trial
court must make specific findings that there is an imminent danger
to the health of the "alleged incapacitated person" or that the
person's property is in danger of being wasted, the trial court is not
required to determine that the person is incapacitated to appoint an
emergency temporary guardianship. § 744.3031(1)....
...Rights that are
not specifically enumerated by the trial court in emergency
temporary guardianship letters are retained by the alleged
incapacitated person because the "powers and duties of the
6
emergency temporary guardian must be specifically enumerated by
court order." See §
744.3031(1).
Respondents acknowledge that section
744.331(2)b permits
Mr....
...They argue that permitting an alleged incapacitated
person whose right to contract has been removed pursuant to an
emergency temporary guardianship to contract with an attorney
would undermine the purpose of an emergency temporary
guardianship—to protect the alleged incapacitated person and his
or her property. See § 744.3031(1)....
...has the capacity
7
to enter into a contract with an attorney on behalf of the ward [after
the removal of the ward's right to contract following a determination
of incapacity]." (citing In re Guardianship of Bockmuller,
602 So. 2d
at 609)).
Section
744.3031(1) gives the trial court the general authority
to delegate certain rights of the alleged incapacitated person to a
guardian who has the power to exercise those rights on the alleged
incapacitated person's behalf. The statute confers "authority" on
the temporary guardian but makes no express mention of the
removal of a temporary ward's rights. See §
744.3031....
...corresponding rights from the alleged incapacitated person subject
to an emergency temporary guardianship to protect the person or
property of the individual from danger that may result from the
person's alleged incapacity if immediate action is not taken. See
§ 744.3031(1)....
...counsel with counsel of his or her choice during proceedings to
8
determine incapacity; this right, by logic and practicality, must
entail the right to enter into an agreement with the attorney of his
choosing.2 Thus, while section
744.3031(1) is broad enough to
allow removal of the right to contract generally, section
744.331(2)b
effectively prohibits the trial court from removing the alleged
incapacitated person's right to contract with an attorney....
...Unlike the wards in Jacobsen and In re Guardianship of Bockmuller,
Mr. Foster was an alleged incapacitated person and, as such, had a
statutory right to substitute counsel pursuant to section
744.331(2)b which the trial court is not authorized to remove
pursuant to section
744.3031(1).
Respondents also suggest that Holmes, 766 So....
... right to contract and, thus, she was presumed competent to
contract. Id. at 388. However, our conclusion in this case is not
undermined by our earlier decision in Holmes because we did not
consider in that case whether the general authority given to the trial
court pursuant to section
744.3031(1) allows the trial court to
prevent an alleged incapacitated person from exercising his or her
explicit right to contract with and substitute counsel pursuant to
section
744.331(2)b....
...A person subject to an emergency temporary
guardianship remains an alleged incapacitated person until such
time as he is adjudicated incapacitated and is free to exercise all
rights not otherwise delegated to a guardian pursuant to an
emergency temporary guardianship, including the right to
substitute counsel. See §§ 744.3031(1), .331(2)(b).3
3 After this case was perfected, Mr....
CopyPublished | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 636, 1992 Fla. LEXIS 1622, 1992 WL 249483
...a guardian; (c) modification, termination, or revocation of the adjudication of incapacity; or (d) restoration of capacity. *1368 Committee Notes This is a new rule. It represents a rule implementation of the procedure found in sections
744.109 and
744.3031, Florida Statutes....
...to create a new procedure or modify an existing procedure. Rule History 1991 Revision: New rule. 1992 Revision: Editorial changes. Committee notes revised. Citation form change in committee notes. Statutory References §
744.109, Fla.Stat. Records. §
744.3031, Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 4954, 1994 WL 202969
...dherence to the statutory procedure for appointment of emergency guardians which includes the requirement that the court shall appoint counsel to represent the alleged incapacitated person in the summary proceeding to appoint the emergency guardian. § 744.3031(1), Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal
an emergency temporary guardian pursuant to section
744.3031, a procedure available when the court specifically
CopyPublished | Florida 3rd District Court of Appeal
an emergency temporary guardian pursuant to section
744.3031, a procedure available when the court specifically
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 9575, 2015 WL 3875682
...pacitated person or the
petitioner.” §
744.331(2)(c), Fla. Stat. (2009).
While the petition is pending, the court may appoint an emergency
temporary guardian to protect the alleged incapacitated person and any
property from imminent harm. See §
744.3031(1), Fla....
CopyPublished | Supreme Court of Florida | 28 Fla. L. Weekly Supp. 495, 2003 Fla. LEXIS 1063, 2003 WL 21402500
...f a guardian; (c) modification, termination, or revocation of the adjudication of incapacity; or (d) restoration of capacity. Committee Notes This is-a-new-rule. — It- represents a rule implementation of the procedure found in sections
744.109 and
744.3031, Florida Statutes....
...xisting procedure. Rule History 1991 Revision: New rule. 1992 Revision: Editorial changes. Committee notes revised. Citation form change in committee notes. 2003 Revision: Committee notes revised. Statutory References §
744.109, Fla. Stat. Records. §
744.3031, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 9264, 2015 WL 3759641
...pursue medical malpractice until her appointment. The purpose of an emergency temporary guardianship is to protect a person who has not as yet been declared incapacitated, where there is imminent danger to the person’s health, safety, or property. Section 744.3031, Florida Statutes (2010), on ETGs provides: (1) A court, prior to the appointment of a guardian but after a petition for determination of incapacity has been filed pursuant to this chapter, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person....
...However, in another case where letters of guardianship for an ETG gave plenary powers to the ETG without listing those powers, the Fifth District indicated its disapproval of this practice of giving unenumerated plenary powers to an ETG, saying: “The legislature, in promulgating F.S.
744.3031, had a basis for requiring that an emergency temporary guardian’s powers be enumerated[.]” Batzle v. Baraso,
776 So.2d 1107, 1109 (Fla. 5th DCA 2001). Practitioners are also advised that the statute requires the specific enumeration of powers for an ETG. See §
744.3031(1), Fla....
...s made. The ETG statute protects a potentially incapacitated individual during the short period of time necessary to determine incapacity and set up the plenary guardianship, but only where there is imminent danger to the ward , or his property. See § 744.3031(1), Fla....
...This does not contemplate the pursuit of a medical malpractice suit, which requires the retention of experts and careful analysis of the care and treatment of the person, something that could never be accomplished within the short duration of the appointment of an ETG. See § 744.3031(3), Fla....
...Those issues are not relevant in this appeal due to our conclusion that the statute of limitations could not commence running prior to appellant's appointment as plenary guardian of her son. . The governing statute on the date of her appointment did not allow for an ETG to be guardian of the property. See § 744.3031, Fla....
CopyPublished | Florida 4th District Court of Appeal
...pursue medical malpractice until her appointment.
The purpose of an emergency temporary guardianship is to protect a
person who has not as yet been declared incapacitated, where there is
imminent danger to the person’s health, safety, or property. Section
744.3031, Florida Statutes (2010), on ETGs provides:
(1) A court, prior to the appointment of a guardian but after a
petition for determination of incapacity has been filed
4
...
...However, in another case where letters of guardianship for
an ETG gave plenary powers to the ETG without listing those powers, the
Fifth District indicated its disapproval of this practice of giving
unenumerated plenary powers to an ETG, saying: “The legislature, in
promulgating F.S.
744.3031, had a basis for requiring that an emergency
temporary guardian’s powers be enumerated[.]” Batzle v. Baraso,
776 So.
2d 1107, 1109 (Fla. 5th DCA 2001). Practitioners are also advised that
the statute requires the specific enumeration of powers for an ETG. See §
744.3031(1), Fla....
...capacity) is made. The ETG statute protects a potentially incapacitated
individual during the short period of time necessary to determine
incapacity and set up the plenary guardianship, but only where there is
imminent danger to the ward or his property. See § 744.3031(1), Fla....
...and his wife was appointed the ETG of his person and property for about
three months.2 His son was then appointed permanent guardian of his
2 The governing statute on the date of her appointment did not allow for an ETG
to be guardian of the property. See § 744.3031, Fla....
...This does not contemplate the pursuit of a medical malpractice
suit, which requires the retention of experts and careful analysis of the
care and treatment of the person, something that could never be
accomplished within the short duration of the appointment of an ETG. See
§ 744.3031(3), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...The court then denied Covey's motion to vacate, and
her counsel filed this appeal under Florida Rule of Appellate Procedure 9.170(b)(8).
During the pendency of the appeal, the circuit court extended the
temporary guardianship for a further ninety days, as is permitted by section
744.3031(4), Florida Statutes (2018)....
...-3-
about an order regarding temporary guardianship ordinarily become moot if a
permanent guardian is appointed."). However, because an emergency temporary
guardianship can last for a maximum of only 180 days, see § 744.3031(4) (providing
that an emergency temporary guardianship expires after ninety days or when a
guardian is appointed, whichever occurs first, and may be extended for "an additional
90 days"), the issues here are capable of repetition while evading appellate review....
...2d DCA 2007).
Analysis
Covey contends that appointing the emergency temporary guardian
without first holding a hearing on the petition violated her Fourteenth Amendment right
to due process as well as the procedural requirements of section 744.3031....
...Pete Beach,
161 So. 3d 548,
550 n.1 (Fla. 2d DCA 2014) (noting that under the principle of judicial restraint "courts
should avoid considering a constitutional question when a case may be disposed of on
nonconstitutional grounds").
Section
744.3031 and Florida Probate Rule 5.648 together set forth the
procedures for the appointment of an emergency temporary guardian. Section
744.3031 provides:
-4-
(1) A court, prior to appointment of a guardian but
after a petition for determination of incapacity has been filed
pursu...
...4th DCA
1997), quashed on other grounds
713 So. 2d 1013 (Fla. 1998) ("The indefinite
article a has an accepted sense of 'any,' while the definite article, the, used before a
noun specifies a definite and specific noun, as opposed to any member of a class.").
Section
744.3031(1) also provides that counsel for the alleged incapacitated person
may request that "the proceeding" be transcribed, thus indicating that there is to be a
proceeding capable of being transcribed, i.e., a hearing.
We...
...But the 2015
amendment removed the word "any," further indicating that a hearing is not optional but
rather should be held as a matter of course. See In re Amendments to Fla. Prob. Rules,
181 So. 3d 480, 484 (Fla. 2015).
Conclusion
In sum, we hold that section
744.3031 requires a circuit court to hold a
hearing prior to ruling on a petition for the appointment of an emergency temporary
guardian....
CopyPublished | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 11450, 2011 WL 2937302
...Section
744.3201 sets forth the requirements for a petition to determine incapacity. The statute allows, but does not require, a petition for appointment of a guardian or emergency temporary guardian to be filed with the petition to determine incapacity. See §
744.3201(3), Fla. Stat.; see also §
744.3031(1), Fla....
CopyPublished | Supreme Court of Florida | 33 Fla. L. Weekly Supp. 542, 2008 Fla. LEXIS 1242, 2008 WL 2686339
...; (c) modification, termination, or revocation of the adjudication of incapacity; or (d) restoration of capacity; or (e) restoration of rights. Committee Notes This rule represents a rule implementation of the procedure found in sections
744.109 and
744.3031, Florida Statutes....
...2003 Revision: Committee notes revised. 2008 Revision: New subdivision (e) added for proceedings involving guardian advocates. Committee notes revised. Statutory References §
393.12, Fla. Stat. Capacity; appointment of guardian advocate. §
744.109, Fla. Stat. Records. §
744.3031, Fla....
CopyPublished | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 703, 2015 Fla. LEXIS 2810, 2015 WL 9264021
...fore
-3-
the hearing is commenced, unless the petition demonstrates that substantial harm to
the alleged incapacitated person would occur if notice is given. See ch. 2015-83, §
6, Laws of Fla. (amending section 744.3031, Florida Statutes, to require that notice
of filing a petition for appointment of an emergency temporary guardian must be
served on the alleged incapacitated person twenty-four hours before a hearing on
the petition, unless the tw...
...if the 24-hour notice is given.
(c) – (f) [No Change]
Committee Notes
Rule History
2007 Revision: [No Change]
2015 Revision: Amended subdivision (b) to conform to statutory changes in
section 744.3031(2), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 4006526, 2013 Fla. App. LEXIS 12357
...This argument elevates form over substance. The trial court’s decision to appoint an emergency temporary guardian after hearing the evidence presented at the hearing on the temporary injunction converted the hearing into a “summary proceeding” for purposes of section 744.3031(1)....
CopyPublished | Florida 2nd District Court of Appeal
...Under the Florida Guardianship Law, a trial court may appoint an emergency
temporary guardian for the person or property of a person alleged to be incapacitated
before the statutory process for determining incapacity and appointing a guardian just
described has been completed. § 744.3031(1)....
...or safety of the alleged incapacitated person or that his or her property is in danger of
being wasted, misappropriated, or lost. Id. An emergency temporary guardianship lasts
for ninety days, subject to extension, or until the appointment of a guardian, whichever
happens first. § 744.3031(3).
Ms....
...The fact that the statutory title of Ms.
Yates's appointment is "emergency temporary guardian" on its face appears to establish
that unless or until a plenary or limited guardianship is established or the emergency
temporary guardianship expires, Ms. Yates is a guardian as described in section
744.108(1). Cf. §
744.3031 (establishing an emergency temporary guardianship in part
III of chapter 744 as a type of guardianship); Barrier v....
...The emergency temporary guardianship statute
unambiguously states that the person subject to an emergency temporary guardianship
-8-
is a ward. It authorizes the court to enter orders to protect "the person who is the ward
of the emergency temporary guardianship." § 744.3031(4) (emphasis added). It
requires an emergency temporary guardian for property to "account [for] the receipts
and disbursements of all the property of the ward." § 744.3031(8)(b) (emphasis added).
And it requires a temporary emergency guardian of the person to report on, among
other things, the "medical condition, mental health[,] and . . . social condition of the
ward." § 744.3031(8)(c) (emphasis added)....
...In Faulkner, for example, the First District considered whether fees
incurred by an examining committee evaluating the alleged incapacity of a person
2
In looking to the understanding of a person subject to an emergency
temporary guardianship conveyed by section 744.3031, we acknowledge that we are
looking to statutory context and not the ordinary, everyday meaning of the term "ward."
We do so because the statute clearly demonstrates that whatever the ordinary meaning
of ward is, when that term is us...
...- 10 -
Mr. Berschback contends that the person subject to an emergency
temporary guardianship is regarded by the Florida Guardianship Law as an alleged
incapacitated person and not as a ward. See § 744.3031(1) ("A court, prior to
appointment of a guardian but after a petition for determination of incapacity has been
filed ....
