As the problem of elder abuse has become increasingly prevalent in recent years, so too has the need to protect elders who suffer abuse, whether physical, mental, or financial, at the hands of the individuals to whom they have entrusted their care and affairs. For family members who are aware of such abuse, one solution may be to commence an emergency temporary guardianship (“ETG”). Sec. 744.3031(1), F.S. reads in relevant part:

A court, prior to 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. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The subject of the proceeding or any adult interested in the welfare of that person may apply to the court in which the proceeding is pending for the emergency appointment of a temporary guardian. The powers and duties of the emergency temporary guardian must be specifically enumerated by court order.…

In addition, the court has authority to issue an injunction, restraining order or other appropriate writ to protect the physical or mental health or safety of the ward. See §744.3031(4), F.S. All of the above can occur without a finding of incapacity and without the statutory safeguards of an examining committee and an adjudicatory hearing where the burden of proof is “clear and convincing”. See §744.331, F.S.

Assuming the court grants to the emergency temporary guardian the ward’s right to contract, can the ward execute an irrevocable trust during the pendency of the ETG? The court in Jasser v. Saadeh, 2012 Fla. App. LEXIS 11670 (Fla. 4th DCA 7/18/12) answered this question in the negative. At oral argument, Brian O’Connell, Esq. argued that the ETG is like a non-springing Durable Power of Attorney in that the ward, like the principal under a POA, retains his legal rights throughout the ETG. In support, Mr. O’Connell, citing, Am. Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3rd DCA 1998), argued that a ward may retain the right to execute a Will during the pendency of a guardianship. The court disagreed. The court reasoned that “[t]o permit both a ward and the guardian to exercise the right to contract would render the protection afforded by an ETG non-existent. In such cases, the ward could continue to deal with his or her property and conceivably give it all away while a petition for incapacity is pending even though that person is incompetent but not officially adjudicated as such. The ETG would be faced with the difficult task of recovering missing property.” The court, citing §736.0402(1), F.S., held that “because Saadeh had no legal right to execute the trust [his right to contract had been removed and therefore, he had no capacity to create a trust], the trust was invalid and void.”

Based on the holding and reasoning in Jasser, it would appear that the ward loses all of his delegable legal rights given to the emergency temporary guardian during the pendency of the ETG.

Status of Appeal: On August 2, 2012, the appellants filed a Motion for Rehearing and a Notice to invoke Discretionary Jurisdiction of Supreme Court.

Practice Point: The ETG hearing must be heard on short notice and the petitioner is only required to serve the alleged incapacitated person and his attorney (if known) with the petition and the notice of hearing. See Fla. Probate Rule 5.648(b). Although the court is required to appoint an attorney for the ward (See §744.3031(1), F.S.), court appointed counsel rarely has time to prepare for the hearing and/or meet with his client in advance of the hearing. As a result, it is relatively easy to sandbag the ward and have the ETG entered with little, if any, opposition. If you believe that a guardianship is being contemplated by the opposition, either advise the opposition that you represent the ward or stay in constant contact with the ward to confirm whether he was served the petition for an ETG.