TRINA ROSS CASON, daughter of alleged incapacitated person, Petitioner,
MARY S. ROSS, alleged incapacitated person, JAMES E. WILLIAMS, JR., nephew of alleged incapacitated person, and BONNIE DIVITO, stipulated third party professional guardian, Respondents.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
for Writ of Mandamus -- Original Jurisdiction.
Jennifer C. Lester of Salter Feiber, Gainesville; Shannon M.
Miller of The Miller Elder Law Firm, Gainesville, for
appearance for Respondents.
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We previously denied relief by an unpublished order and now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.
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.
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.
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).
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 trial 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 ...