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Appointment of an Emergency Temporary Guardian in Florida

| Sep 1, 2020 | Elder Law, guardianship |

When an incapacitated person in Florida needs a guardian, an interested person, such as a family member, may petition the probate/guardianship court for a determination of incapacity and for appointment of a guardian. Once these pleadings are filed with the court, the court will appoint a three-person examining committee to recommend whether the person in need (i.e. the proposed ward) should have a guardian appointed. Once the committee makes its recommendations, then a hearing is conducted for the court to determine if the proposed ward is incapacitated and if a guardian should be appointed.

As you might guess, this process can take some time (typically 30-45 days and sometime longer). So what happens in the meantime if the incapacitated person needs someone to act for them right away? There is an interim remedy that can be implemented. This is accomplished by asking the court to appoint an Emergency Temporary Guardian (“ETG”). This allows the court to appoint someone to act for up to 90 days. This initial appointment period can be extended an additional 90 days if the emergency conditions remain in place.

In order to petition for appointment of an ETG, the alleged incapacitated person or any adult interested in the welfare of that person may petition for the appointment of an ETG. The Petition must be verified and state:

(1) the petitioner’s residence and post office address;

(2) the name, age, and residence and post office address of the alleged incapacitated person;

(3) that there appears to be imminent danger that the physical or mental health or safety of the alleged incapacitated person will be seriously impaired or that the alleged incapacitated person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken;

(4) the nature of the emergency and the reason immediate action must be taken;

(5) the extent of the emergency temporary guardianship, either limited or plenary, requested for the alleged incapacitated person, and, if known, the nature and value of the property to be subject to the emergency temporary guardianship;

(6) the names and addresses of the next of kin of the alleged incapacitated person known to the petitioner;

(7) the name and residence and post office address of the proposed emergency temporary guardian, and that the proposed emergency temporary guardian is qualified to serve, or that a willing and qualified emergency temporary guardian has not been located, and;

(8) the proposed emergency temporary guardian’s relationship to or any previous association with the alleged incapacitated person.

By having an ETG appointed, the proposed ward will have someone who can act on his or her behalf as authorized by the Order appointing the ETG. This means that the ETG may have authority over the person or property—or both— of the proposed ward.

An example of the benefit of having an ETG appointed may help. Charles was a 78-year old single man who suffered a massive stroke. He is completely incapacitated and cannot make decisions or act for himself. Sadly, Charles did not have any estate documents in place—in particular, he did not have a Durable Power of Attorney or a Power of Attorney for Healthcare. In effect, Charles needs someone to act for him immediately to consult with doctors but no one has authority. Charles is in imminent danger if no one can act for him. Charles’ brother wants to help so he consults an attorney. The decision is made to file for guardianship but the attorney advises that appointment may take a while—possibly 30 days or more. “But my brother needs help immediately!” is his brother’s response. Fortunately, filing for appointment of an ETG is the answer.

As is the case in all guardianship proceedings in Florida, the petitioner seeking the appointment of a guardian—including an ETG—must be represented by an attorney. If you have an incapacitated loved one who needs someone with authority to act, you should consult an attorney with experience in handling guardianship matters.

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