Emergency Guardianship in Florida
Sometimes a person may no longer be able to make certain decisions on their own because of incapacity. In urgent situations, Florida law allows a court to appoint an emergency temporary guardian after a petition to determine incapacity has been filed. Florida Statute 744.3031 requires the court to specifically find that there appears to be imminent danger that the person’s physical or mental health or safety will be seriously impaired unless immediate action is taken.
The court may also appoint an emergency temporary guardian if the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. If you know someone in this situation, an experienced probate attorney can help explain the emergency guardianship process and the rights of the alleged incapacitated person.
Key Takeaways
- Florida courts may appoint an emergency temporary guardian when an alleged incapacitated person’s health, safety, or property faces imminent danger.
- A petition to determine incapacity generally must already be filed before an emergency temporary guardian is appointed.
- The alleged incapacitated person and their attorney generally must receive at least 24 hours’ notice before the emergency hearing, unless providing notice would cause substantial harm.
- An emergency temporary guardian receives only the powers specifically granted by the court.
- The emergency temporary guardian’s authority generally expires 90 days after appointment or when a guardian is appointed, whichever occurs first. The court may extend the authority for an additional 90 days if the emergency conditions continue.
When Would a Person Require Emergency Guardianship?
- Mental health crisis: A mental health crisis does not automatically require emergency guardianship. If the person is alleged to be incapacitated and there is imminent danger that their health, safety, or property will be seriously impaired, emergency guardianship may be considered. Separate Florida mental-health laws may also apply when a person presents an immediate danger to themselves or others.
- Sudden illness or injury: Any accident, or health event that leaves a person unconscious, or in a coma may require emergency guardianship. Sometimes estate planning documents may cover these situations. However, it remains wise to discuss the matter with an attorney to ensure assets are protected and proper healthcare is administered.
- Incarceration: Incarceration alone does not establish incapacity or justify emergency guardianship. However, if an incarcerated person is also alleged to be incapacitated and their property is in imminent danger of being wasted, misappropriated, or lost, emergency guardianship may be considered if the statutory requirements are met.
- Financial exploitation: Emergency guardianship may be appropriate when an alleged incapacitated person’s property is in imminent danger of being wasted, misappropriated, or lost. Florida law also provides other remedies for financial exploitation, including injunctions for protection of vulnerable adults, so the appropriate legal response depends on the circumstances.
- Substance abuse: This is a tricky category and requires an attorney’s help. Generally speaking, this applies to folks addicted to alcohol or drugs. The addiction must impair their ability to function and manage their affairs. Usually, the family doesn’t realize the seriousness of the situation until an unexpected event happens.
Who Can Request Emergency Guardianship in Florida?
An emergency temporary guardianship may be requested by the person who is the subject of the incapacity proceeding or by any adult interested in that person’s welfare. The request is made in the court where the incapacity proceeding is pending.
The person requesting the emergency appointment must show why immediate action is necessary to protect the alleged incapacitated person’s health, safety, or property.
How to Obtain Emergency Guardianship
Emergency guardianship may be obtained to protect a person due to physical or mental incapacity. The first step would be to contact an experienced attorney. Then, the process begins:
- First, a petition is filed with the court.
- Second, the court schedules a hearing on the emergency petition. The alleged incapacitated person and their attorney generally must receive at least 24 hours’ notice before the hearing, unless the court finds that providing that notice would cause substantial harm.
- Third, if the court appoints an emergency temporary guardian, the court order will specifically identify the powers and duties granted to that guardian. Depending on the circumstances, those powers may involve personal, medical, residential, or financial matters, but the guardian’s authority is limited to what the court expressly authorizes.
- The emergency temporary guardian’s authority generally expires 90 days after appointment or when a guardian is appointed, whichever occurs first. The court may extend the emergency temporary guardianship for an additional 90 days if the emergency conditions still exist. A longer-term guardianship requires the separate guardianship process and appropriate court findings.
What Rights Does the Alleged Incapacitated Person Have?
Florida law provides important protections for a person who is alleged to be incapacitated. The court appoints an attorney to represent the alleged incapacitated person in the incapacity proceeding, although the person may substitute their own attorney.
A guardianship should also be no broader than necessary. Florida courts must consider whether a less restrictive alternative can adequately address the person’s needs, and a person who is found incapacitated retains all rights that the court does not specifically remove.
Does Guardianship Override Power of Attorney in Florida?
A power of attorney and a guardianship serve different purposes. A power of attorney is created by the principal and authorizes another person to act on the principal’s behalf. A guardianship is a court-supervised legal arrangement created after a judicial finding that a person needs assistance with certain rights or decisions.
In Florida, the authority granted under a power of attorney may be suspended during an incapacity proceeding, depending on the circumstances. If the principal is later adjudicated totally or partially incapacitated, the power of attorney may terminate unless the court determines that certain authority should remain exercisable by the agent.
A valid durable power of attorney may also serve as an alternative to guardianship when it adequately protects the person’s interests. For that reason, the effect of a guardianship proceeding on an existing power of attorney depends on the specific court orders and circumstances of the case.
