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Can a Florida Judge Appoint a Guardian Without First Conducting a Hearing?


An adult guardianship is often necessary to ensure someone has the ability to make legal, financial, and health care decisions for a physically or mentally incapacitated adult. But requesting a guardianship can be contentious, especially when the allegedly incapacitated adult objects. And even where there is evidence of incapacity, the courts must still respect the basic due process rights of potential guardianship wards.

Second District Reverses “Ex Parte” Guardianship Order

The Florida Second District Court of Appeal recently emphasized this point in a case, Covey v. Shaffer, in which it reversed a trial court’s decision to appoint an emergency temporary guardian without first conducting a formal hearing.

The petitioner in this case originally sought the appointment of a guardian in June 2018 for her longtime life partner (whom we’ll identify as “the ward.”). The petitioner said the ward suffered from Alzheimer’s disease and could no longer make decisions for herself. The petitioner further said the ward’s niece had taken her aunt out of Florida and had prevented the petitioner from speaking with her.

Five days after the petition was filed, a judge granted an “ex parte” order naming the petitioner as the ward’s emergency temporary guardian. “Ex parte” means the judge acted without holding a hearing or even giving formal legal notice to the ward of the petition. The court did, however, appoint an outside attorney to represent the ward. After speaking with the ward, the attorney subsequently filed a motion to vacate the guardianship.

At a hearing on the motion to vacate, the ward’s attorney maintained the judge “could not appoint a temporary guardian without holding an evidentiary hearing.” The judge disagreed and denied the motion to vacate. The ward’s attorney then filed an appeal.

The Second District agreed with the ward’s attorney that the trial judge acted inappropriately. The appeals court noted the Florida law authorizing guardianships states that notice of any petition to appoint a guardian “must be served on the alleged incapacitated person and on the alleged incapacitated person’s attorney at least 24 hours before the hearing on the petition is commenced.” This language “plainly contemplates that a hearing is to be held.” And in this case, the ward was not served with notice until after the judge issued the ex parte order. The Second District therefore reversed the order appointing the petitioner as the ward’s emergency temporary guardian.

Speak with a Florida Estate Planning Lawyer Today

Guardianship litigation can be avoided through proper estate planning. You have the right to name individuals who can make decisions on your behalf should you become incapacitated. If you choose not to exercise these rights, you may one day find yourself in a situation like the ward in the case described above.

A qualified Fort Myers guardianship attorney can assist you in creating a power of attorney and other documents that can keep you safe while also keeping you out of court. Contact the Kuhn Law Firm, P.A., at 239-333-4529 today to schedule a free estate planning consultation.


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