Proper service and notice in incapacity and guardianship proceedings - clear as mud? [Part I]

Jane Smith who lives in Rhode Island notices that her mother Janet Jones (Janet or mom), who lives in Naples, Florida is no longer herself.  Janet's second husband died last year and now Janet is alone.  Janet forgets things.  Janet sends people money that she does not know.  Janet buys stuff online that she does need.  Jane recently got a call from an neighbor that  Janet was walking outside late a night and appeared lost.  Jane attempts to get mom to ender assisted living, but mom refuses.  Mom is down to $1,000,000.00 in her brokerage account and moms financial planner tells Jane something has to be done.  Jane talks to several people and decides to commence guardianship proceedings.  

Mom has been married twice.  Jane has a brother Bill Smith, a half-brother Fred Jones and a step sister Cindy Jones.  Janet believes that Fred just took Janet to an attorney and some documents were executed, but she does not know what was executed.  Janet has a copy of an old will that gives mom's assets to her children equally upon her death and includes Cindy in the definition of who her children are.  Mom also has a durable power of attorney she just executed that names her long-term friend Cindy Nosella, as her attorney-in-fact.  Mom has also executed a health care surrogate naming Janet and Bill Smith as her agents for making health care decisions if mom cannot make these decisions.  Jane fills out a petition to determine incapacity, and petition to appoint a plenary guardian, an oath, an application for appointment and a petition to appoint an emergency temporary guardian. Who gets what notice?

In guardianship proceedings, Fla. Stat. 744.106 (chapter 744 is known as the Florida Guardianship Law) states that notice shall be given as provided in the Florida probate rules.  Under Fla. Stat. 744.1025 definitions contained in Florida Probate Code are applicable to Florida Guardianship Law.  Fla. Stat. 731.301 of the Florida Probate Code (Florida Chapter 731 through 735) sates that if notice to an interested person is required, then notice shall be given as provide in the Florida Probate Rules.  Under 731.303(3)(a) notice notice as prescribed by law shall be given to every interested person.  Fla. Stat. 731.201 defines an interested person as reasonably affected by the outcome of the proceeding.  Under 744.102(14) next of kin includes heirs at law if the person were deceased and includes lineal descendants of the Ward.  A "ward" under Florida Guardianship law is a person for whom a guardian has been appointed) or the alleged incapacitated person ("AIP").  Under Fla. Prob. R. 5.041 when notice is required, than notice of the proceeding shall be served on interested persons.  Under Fla. Prob. R. 5.648(a), any adult interested in the welfare of an AIP may petition the court to appoint an emergency temporary guardian.  

Lets go back to out example.  Under Fla. Prob. R. 5.550(b) in addition to being served on mom by her court appointed attorney, the petition to determine incapacity must also be served on the "next of kin."  Under Fla. Prob. R. 5.560, the petition to appoint the guardian of an incapacitated person is served as part of the petition to determine incapacity. The petition to appoint an emergency temporary guardian generally must be served on the AIP and the court appointed attorney at least 24 hours before the hearing, but is not required to be served on the next of kin.  Well what does next of kin mean?  Under Fla. Stat. 744.102(14), next of kin includes heirs at law if the person were deceased and includes lineal descendants of the AIP.  Just how expansive is this?  Consider Grant v. Odom 76 so.2d 287 (Fla. 1954).  [Continued in Part II]

Matthew A. Linde
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