In re Guardianship of Anderson, 568 So. 2d 958

In re Guardianship of Anderson

568 So. 2d 958 | Fla. Dist. Ct. App. | 1990

Lead Opinion

PER CURIAM.

This is a consolidated appeal of three rulings by the probate court regarding termination of a ward’s voluntary guardianship. The first order appealed required unimpeded access by the guardian to the ward; the second appointed a visitor pursuant to section 744.107, Florida Statutes (1987), to investigate allegations of undue influence; and the third order refused to vacate a previous order setting a hearing at the request of the guardian on the continued need for the guardianship. These are not final appealable orders because they do not determine the rights of any party as required under Florida Rule of Probate and Guardianship 5.100. Nor can we fit them into any class of final appealable orders.

We have considered whether these orders may be appropriately considered as petitions for writs of certiorari. However, a writ of certiorari will issue *959where there is a departure from the essential requirements of law which will cause material injury to the petitioner throughout the proceeding and which cannot be adequately redressed on appeal. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). The gist of appellant’s complaint here is that the probate court should not be entitled to conduct a hearing on the continued need for a guardian where a competent ward wishes to terminate a voluntary guardianship, relying on Bryan v. Century National Bank, 498 So.2d 868 (Fla.1986). Even if we consider this a departure from the essential requirements of law, there is an adequate remedy by appeal from any final order which may be rendered on the petition to terminate the guardianship. We have previously held that the fact that appellant may have to incur the expense and inconvenience of going through a hearing is not grounds for the appellate court to exercise its extraordinary writ jurisdiction. Hartford Acc. and Indem. Co. v. U.S.C.P. Co., 515 So.2d 998 (Fla. 4th DCA 1987); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); see also Doerschuck v. Doerschuck, 481 So.2d 1317 (Fla. 4th DCA 1986) (Glickstein, J., specially concurring). We can see no reason why the remedy on plenary appeal is not adequate here under the standard of the foregoing cases. Thus, certiorari is unavailable in this case.

We therefore dismiss the appeals for lack of jurisdiction.

LETTS and WALDEN, JJ., concur. WARNER, J., concurs specially with opinion.

Concurrence Opinion

WARNER, Judge,

concurring specially.

I think the trial court did depart from the essential requirements of law in ordering a hearing on the continued necessity of the guardianship where the competent ward has evidenced her intention to terminate the voluntary guardianship. In Bryan v. Century National Bank, 498 So.2d 868 (Fla.1986), the Supreme Court recognized the right of the ward of a voluntary guardianship to terminate a voluntary guardianship at any time. Since a voluntary guardianship depends entirely upon the consent of its legally competent ward, see Ahlman v. Wolf, 413 So.2d 787 (Fla. 3d DCA 1982), it follows that when that consent is withdrawn the guardianship must terminate, whether or not the court determines in a hearing a “need to continue the guardianship.” In addition, although neither party pointed it out to the court, section 744.521, Florida Statutes (1987) providing for termination of a guardianship was amended effective October 1, 1989. While formerly that statute provided that upon termination the court could inquire into proof of “the need of the continuance of the guardianship” once the ward is deemed competent, that authority of the trial court to review the need for continuation of the guardianship was eliminated by the amendment. Thus, I conclude that the trial court departed from the essential requirements of law in refusing to vacate its order setting a hearing on the need for continuation of the guardianship.

Nevertheless, since any error in holding an unauthorized hearing can be remedied on plenary appeal, we cannot accept certio-rari jurisdiction on this appeal. It is clear from Martin-Johnson, Inc. v. Savage that the use of this extraordinary jurisdiction power should be very limited. The Supreme Court stated:

We emphasize, first of all, that common law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders. Hawaiian Inn v. Snead Construction Corp., 393 So.2d 1201 (Fla. 5th DCA 1981); Ford Motor Co. v. Edwards, 363 So.2d 867 (Fla. 1st DCA 1978). Generally, all other appellate review is postponed until the matter is concluded in the trial court.

509 So.2d at 1098 (footnote omitted).

However, all this discussion is probably moot, because the Florida Legislature has now enacted specific procedures regarding termination of voluntary guardianships. Senate Bill 2770, effective October 1, 1990, amends section 744.341, Florida Statutes (1989) to provide that a voluntary guardian*960ship may be terminated simply by filing a notice of termination with the trial court with notice to all interested parties. Thus, there cannot thereafter be any argument that a legally competent ward has a right unilaterally to terminate a voluntary guardianship without interference or objection from other parties or even the court. This comports with Bryan.