TRINA ROSS CASON, DAUGHTER OF ALLEGED INCAPACITATED PERSON, PETITIONER,
v.
MARY S. ROSS, ALLEGED INCAPACITATED PERSON, JAMES E. WILLIAMS, JR., NEPHEW OF ALLEGED INCAPACITATED PERSON, AND BONNIE DIVITO, STIPULATED THIRD PARTY PROFESSIONAL GUARDIAN, RESPONDENTS
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Petitioner sought a writ of mandamus to compel the circuit court to issue letters of guardianship for an allegedly incapacitated person. The appellate court denied the petition, finding that although delays in the guardianship matter are concerning, the petitioner failed to establish the circuit court's indisputable legal duty or demonstrate that an express demand for the guardian appointment order was made.
The writ of mandamus is denied. While the court is concerned about the lack of guardianship appointment, petitioner failed to establish that the circuit court has an indisputable legal duty or a time deadline for issuing guardianship letters, and petitioner did not make an express demand that the trial court enter such an order.
[1] A writ of mandamus requires a clear legal right to the relief sought, an indisputable legal duty to perform the requested action, and the absence of any other adequate re…
[2] A court has a duty to protect an incapacitated person and respect their autonomy to the greatest extent possible.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If a person is incompetent, it is the duty of the court to assure that person's protection and his or her autonomy is respected to the greatest extent possible.”
Establishes the general duty of courts to protect incapacitated persons, though petitioner failed to show specific time deadline for compliance
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePetitioner Trina Ross Cason filed petitions to determine incapacity and for guardianship of Mary S. Ross in December 2015. Hearings were held in March…
The full statement of facts, procedural history, and disposition for this case are member content.
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This petition for writ of mandamus seeks to compel the circuit court to render a decision and issue letters of guardianship. We previously denied relief by an unpublished order and now write to explain our reasoning.
In December 2015, petitioner filed a petition to determine incapacity and a petition for appointment of guardian for an alleged incapacitated person (“AIP”). Hearings in the matter were held in March, April, and June 2016.
On August 29, 2016, the circuit court issued an Order Determining Partial Incapacity. On September 8, 2016, petitioner filed a motion for rehearing stating that the Order Determining Partial Incapacity had limited the AIP’s ability to make certain decisions, but no order appointing a limited guardian or letters of guardianship was entered. On October 5, 2016, the circuit court entered an order granting the motion for rehearing and vacating the Order Determining Partial Incapacity. On the same date, the circuit court issued an order setting a non-jury trial for January 4, 2017, before the successor judge in the division.
This petition for writ of mandamus asserts that circuit court had a clear, ministerial duty and responsibility to protect the AIP’s rights by appointing a guardian to protect the AIP. Jasser v. Saadeh, 97 So.3d 241 (Fla. 4th DCA 2012) (“If a person is incompetent, it is the duty of the court to assure that person’s protection and his or her autonomy is respected to the greatest extent possible.”). Petitioner asserted that the circuit court was required to issue letters of guardianship. See § 744.345, Fla. Stat. (2015).
“In order to be entitled to a writ of mandamus the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available.” Huffman v. State, 813 So.2d 10, 11 (Fla. 2000). Although we are concerned that the AIP has not been appointed a guardian for certain matters, other than complaining about the delay, petitioner pointed to no authority for the proposition that the circuit court has a time deadline to issue an order appointing a guardian. It appeared that the *1026trial judge determined that he could not enter an order on the guardianship matter before his time in the division ended. There is no showing that petitioner made an express request that the trial court enter a new order that appointed a guardian for the AIP. Absent a showing that an express and distinct demand for performance of this sort has been made, mandamus will not lie. See Thomas v. State, Dept. of Revenue, 74 So.3d 145 (Fla. 1st DCA 2011); Al-Hakim v. State, 783 So.2d 293 (Fla. 5th DCA 2001).
WOLF, B.L. THOMAS, and KELSEY, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Huffman v. State, 813 So. 2d 10 (Fla. 2000)
- State v. Barber, 783 So. 2d 293 (Fla. 5th DCA 2001)
- Marzuq Al-Hakim v. State, 783 So. 2d 293 (Fla. 5th DCA 2001)
- Summer Jasser v. Saadeh, 97 So. 3d 241 (Fla. 4th DCA 2012)
- Chadwin A. Stanley, JR. v. State, 74 So. 3d 145 (Fla. 1st DCA 2011)
- Thomas v. State, 74 So. 3d 145 (Fla. 1st DCA 2011)