Circuit Court Lacks Ongoing Jurisdiction in an Incapacity Proceeding Unless a Guardian is Appointed

Posted on October 2, 2015

In Adelman v. Elfenbein, 2015 Fla. App. LEXIS 12773 (Fla. 4th DCA 2015), the Fourth DCA found that because a grandniece’s petition to reopen a guardianship was barred by the finality of the court’s previous order and because the directive documents of her great uncle entrusted his affairs to his former spouse the trial court erred in appointing a professional guardian as the trial court lacked jurisdiction.

In the subject case, Hillary Elfenbein (“Appellee”) sought to determine the capacity of her great uncle. After a hearing on her petition to determine incapacity and petition for appointment of a plenary guardian, the general magistrate found that, while plenary incapacity was established, Mr. Adelman’s advance directive documents provided a less-restrictive alternative to guardianship. Mr. Adelman’s former spouse, Ruby Adelman, (“Appellant”) was a party to the proceeding and was named in his advance directive documents as his attorney-in-fact, health care surrogate, plenary guardian, and trustee. The trial court adopted and ratified the general magistrate’s report and dismissed the grandniece’s petition for appointment of a plenary guardian. No appeal was taken from that order. Several months later, the grandniece filed a “petition to reopen” the guardianship. She sought the appointment of a professional plenary guardian, alleging that her great uncle’s former spouse was not providing consistent adequate care. Mr. Adelman and his former spouse objected to this. The trial court allowed the petition, conducted a trial, and issued an order appointing a professional plenary guardian for Mr. Adelman.

On appeal, the Fourth DCA found that the trial court lacked jurisdiction to enter its order in this case, and therefore, reversed the decision of the trial court. Specifically, it noted that pursuant to Fla. Prob. R. 5.020(d), once a court makes an appropriate finding of least restrictive alternatives to guardianship and chooses not to appoint a guardian, the appropriate method for reviewing that finding is by filing a timely motion for rehearing. After the period for rehearing expired, the trial court lost jurisdiction to do anything other than enforce the orders previously entered.  In the alternative, an appeal could be filed pursuant to Fla. Prob. R. 5.100 and Fla. R. App. P. 9.130(b).  However, in the subject case, the Appellee did neither. Thus, the trial court no longer had continuing jurisdiction over the incapacity proceeding. Since no appeal was taken, the orders became final and absolute, and “thereafter the court was without jurisdiction to alter, modify or amend [them] .”  In re Beeman’s Estate, 391 So. 2d 276, 279 (Fla. 4th DCA 1980). Therefore, finding the trial court without jurisdiction to make the ruling that it did, the Fourth DCA reversed the finding of the trial court and vacated its order.

The Fourth DCA specifically declared that:

“Upon a finding of incapacity, the court is required to either appoint a guardian or find that there is an alternative to guardianship.  If there is an alternative to guardianship, the court is prohibited from appointing a guardian. §744.331(6)(b), Fla. Stat.  (‘A guardian may not be appointed if the court finds there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person.’) (emphasis added).  It is fully within the power of the trial court to find someone incapacitated yet not appoint a guardian.  Smith v. Lynch, 821 So.2d 1197, 1199 (Fla. 4th DCA 2002).” 

The Fourth DCA held that a circuit court lacks ongoing jurisdiction in an incapacity proceeding unless a guardian is appointed.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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