Adversarial Proceedings in Florida Guardianship - Right to Amend?

Jeffrey Skatoff

When can a litigant in a guardianship proceeding amend a petition?  The appellate court holds that an amendment to the initial pleading is allowed once, as a matter of right, before the responsive pleading is filed.

In Reed v. Long, 111 So. 3d 237 (4th DCA 2013), the guardian improperly held himself out as the husband of the ward and was able to procure for himself loss of consortium damages in his capacity as the husband.  The daughter of the ward filed a declaratory action with the guardianship court in which the the court declared him not to be the husband.

The daughter then filed a motion for leave to seek supplemental relief.  Attached to the motion was a proposed petition in two counts - removal of the (non) husband as guardian, and surcharge.  The court allowed the supplemental petition for removal to proceed, but denied the supplement petition for surcharge, holding that the court failed to see a viable cause of action.   Eventually, the guardianship court removed the guardian as a result of his improper behavior.

The appellate court held that the daughter should have been allowed to amend her petition on the surcharge count, based on the Florida Rule of Civil Procedure pertaining to amendments of pleadings.

If a proceeding in the guardianship court is considered to be adversarial in nature, whether because the rules make it adversarial or because a litigant files a notice that the proceeding is adversarial in nature, the regular rules of civil procedure apply, not just the guardianship rules of procedure (which confusingly are found within the Florida Probate Rules.)

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Adversarial Proceedings in Florida Guardianship - Right to Amend?