Contested Guardianship Proceedings

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Foust v. Maldonado, 30 Fla. L. Weekly D895 (Fla. 5 DCA April 1, 2005) (Trial Court Reversed) Proceedings for removal of guardians are initiated pursuant to F.S. § 2004->Ch0744->Section%20477#0744.477″>744.477 and Probate Rule 5.660. In this one-paragraph opinion, the Fifth DCA reversed Osceola County Circuit Court Judge Jeffords D. Miller for apparently failing to comply with the requisite notice requirements in a removal proceeding, but provides zero guidance for anyone other than the parties to this litigation for where the trial court went wrong.
Continue Reading If you’re going to remove a guardian, you have to give reasonable notice . . . unfortunately this one-paragraph opinion fails to provide any guidance regarding what reasonable notice may be

McJunkin v. McJunkin, 30 Fla. L. Weekly D840 (Fla. 2 DCA March 30, 2005) (Trial Court Reversed) In March 2001 the ward’s two sons had him declared incapacitated at age 79 because he apparently wasn’t managing his money as prudently as he could have. Two years later, in October 2003, the ward filed a “Suggestion of Capacity” seeking to have his rights restored. Even though the medical evidence presented in 2003 clearly showed that the ward was not incapacitated, and it was doubtful that he was ever incapacitated, Highlands County Circuit Court Judge J. David Langford ruled against him, declining to restore his rights. In reversing the trial court, the Second DCA makes clear that attorneys representing wards need to be advocates . . . not social workers, protecting individuals from, among other dangers, well intentioned relatives and courts guided by misplaced paternalism.
Continue Reading Just because a person makes bad decisions, doesn’t mean he should be declared incapacitated and have all his rights stripped away

In re Guardianship of J.D.S., 864 So.2d 534 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT AFFIRMED) Is a fetus a “person”? In the latest chapter of Florida’s fetal rights debate, the 5th DCA held that in the context of Florida’s guardianship law, the answer is no. Orange County Circuit Court Judge Lawrence R. Kirkwood denied Jennifer Wixtrom’s petition to be appointed guardian of the fetus of “J.D.S.,” a 22-year old woman suffering from severe mental retardation that was pregnant as the result of a rape that occurred while she was in the care of the Department of Children and Families (“DCF”). Ms. Wixtrom’s petition was denied and she appealed.
Continue Reading Court Says No to Guardianship for Fetus