In re Amend. to the Florida Probate Rules
| Decision Date | 10 July 2008 |
| Docket Number | No. SC08-1256.,SC08-1256. |
| Citation | 986 So.2d 576 |
| Parties | In re AMENDMENTS TO the FLORIDA PROBATE RULES. |
| Court | Florida Supreme Court |
Frank T. Pilotte, Chair, Florida Probate Rules Committee, Palm Beach, Florida, and John F. Harkness, Jr., Executive Director, The Florida Bar, and J. Craig Shaw, Staff Liaison, Tallahassee, Florida, for Petitioner.
The Florida Bar's Probate Rules Committee (Committee) has filed a "Fast-Track Amendments Report." The Committee proposes amendments that conform the rules to recent legislation. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).
The Committee states that the proposals are based on the Legislature's passage of chapter 2008-125, Laws of Florida, and specifically the revisions to section 393.12, Florida Statutes, "Capacity; appointment of guardian advocate." The legislation addresses various responsibilities and requirements regarding guardian advocates for persons with developmental disabilities. The legislation became effective on July 1, 2008.
Pursuant to the "fast-track" procedure for considering new legislation, the Committee proposes amendments to rules 5.015 (General Definitions), 5.030 (Attorneys), 5.040 (Notice), 5.050 (Transfer of Proceedings), 5.120 (Administrator Ad Litem and Guardian Ad Litem), 5.540 (Hearings), 5.541 (Recording of Hearings), 5.620 (Inventory), 5.625 (Notice of Completion of Guardian Education Requirements), 5.640 (Continuance of Unincorporated Business or Venture of Ward), 5.650 (Resignation or Disqualification of Guardian; Appointment of Successor), 5.660 (Proceedings for Removal of Guardian), 5.680 (Termination of Guardianship), and 5.720 (Court Monitor). Further, the Committee proposes new rules 5.649 (Guardian Advocate), regarding the capacity and appointment of a guardian advocate, and 5.681 (Restoration of Rights of Person with Developmental Disability), establishing procedural guidelines in response to amendments to section 393.12, Florida Statutes. The Executive Committee of the Florida Bar Board of Governors approved the proposals by a vote of 9-0.
In addition, the Committee has revised Committee Notes to include statutory and rule references to the applicable guardian advocate statutes and rules, or to add commentary, but did not propose changes to the text of the rules that contain those Notes. The Committee Notes to the following rules are amended in this manner: 5.020, 5.025, 5.041, 5.042, 5.110, 5.150, 5.590, 5.600, 5.610, 5.630, 5.635, 5.646, 5.647, 5.670, 5.700, 5.705, 5.725, and 5.900.
After considering the Committee's proposals and reviewing the relevant legislation, we amend the rules as set forth in the appendix to this opinion. Deletions are indicated by struck-through type, and new language is indicated by underscoring. The Committee Notes are included for explanation and guidance only and are not adopted as an official part of the rules. These amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.1
It is so ordered.
APPENDIX
RULE 5.015. GENERAL DEFINITIONS
(a) General. The definitions and rules of construction stated or referred to in sections 1.01 and 393.12, Florida Statutes, and chapters 731, 732, 733, 734, 735, 736, 738, 739, and 744, Florida Statutes, as amended from time to time, shall apply to these rules, unless otherwise defined in these rules.
(b) Specific Definitions. When used in these rules
(1) — (3)[No Change]
(4) "judge" means a judge of the circuit court, including any judge elected, appointed, substituted, or assigned to serve as judge of the court;
(5) "guardian advocate" means a person appointed for a person with a developmental disability pursuant to section 393.12, Florida Statutes;
(6) "guardian means" a person appointed pursuant to chapter 744, Florida Statutes, or a guardian advocate unless a rule indicates otherwise;
(7) "ward" means an individual for whom a guardian is appointed.
Committee Notes
Rule History
1977 Revision: No change in rule. Correction of typographical error in committee note.
This is intended to simplify drafting of these rules and should be liberally construed. See Fla. Prob. R. 5.190 and 5.540 and also §§ 731.201 and 744.102, Fla. Stat.
1988 Revision: Rule was expanded due to deletion of rule 5.190. Committee notes expanded. Citation form changes in rule and committee notes.
1992 Revision: Citation form changes in rule and committee notes.
2000 Revision: Subdivision (b)(2) amended to delete outdated reference to rule 5.550(c).
2007 Revision: Subdivision (a) amended to add reference to chapter 736, Florida Statutes, which was added to the statutes effective July 1, 2007 and which replaces deleted chapter 737, and to add reference to chapter 739, Florida Statutes, which was added effective July 1, 2005. Committee notes revised.
2008 Revision: Subdivision (a) amended to add reference to section 393.12, Florida Statutes, which governs guardian advocates for persons with developmental disabilities. As provided by section 744.102(11), the term "guardian advocate" as used in the Florida Guardianship Law and these rules does not include a guardian advocate appointed for a person determined to lack capacity to consent to treatment under section 394.4598, Florida Statutes. Subdivisions (b)(5) through (b)(7) added to reflect 2008 amendments to section 393.12, Florida Statutes. Committee notes revised.
Statutory References
§ 1.01, Fla. Stat. Definitions.
§ 393.063, Fla. Stat. Definitions.
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§ 731.201, Fla. Stat. General definitions.
§ 736.0103, Fla. Stat. Definitions.
§ 738.102, Fla. Stat. Definitions.
§ 739.102, Fla. Stat. Definitions.
§ 744.102, Fla. Stat. Definitions.
RULE 5.020. PLEADINGS; VERIFICATION; MOTIONS
(a)-(e) [No Change]
Committee Notes
The time for determining when a motion for rehearing must be served has been clarified in view of Casto v. Casto, 404 So.2d 1046 (Fla.1981).
Rule History
1977 Revision: Editorial change (rule) and expansion of committee note. Subdivisions (a), (b), and (d) substantially the same as subdivisions (a), (b), and (f) of prior rule 5.030. Subdivision (c) taken from section 731.104, Florida Statutes. For adversary proceedings see new rule 5.025. Notice of administration is not a pleading within the meaning of this rule.
1980 Revision: Subdivisions (c) and (d) have been redesignated as (e) and (f). New subdivisions (c) and (d) are added to provide for the use of motions in probate proceedings other than adversary proceedings and to specifically authorize a procedure for rehearing.
1984 Revision: Minor editorial changes. Subdivision (f) of prior rule has been deleted as it is now covered under the adversary rules.
1988 Revision: Editorial change in caption of (a). Committee notes revised. Citation form change in committee notes.
1992 Revision: Editorial changes. Committee notes revised. Citation form changes in rule and committee notes.
2003 Revision: Committee notes revised.
2008 Revision: Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§ 731.104, Fla. Stat. Verification of documents.
§ 731.201, Fla. Stat. General definitions.
§ 733.202, Fla. Stat. Petition.
§ 733.604(1), Fla. Stat. Inventory.
§ 733.901, Fla. Stat. Final discharge.
§ 735.203, Fla. Stat. Petition for summary administration.
§ 744.104, Fla. Stat. Verification of documents.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.3201, Fla. Stat. Petition to determine incapacity.
§ 744.331, Fla. Stat. Procedures to determine incapacity.
§ 744.334, Fla. Stat. Petition for appointment of guardian or professional guardian; contents.
Rule References
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.200 Petition for administration.
Fla. Prob. R. 5.205(b) Filing evidence of death.
Fla. Prob. R. 5.320 Oath of personal representative.
Fla. Prob. R. 5.330 Execution by personal representative.
Fla. Prob. R. 5.350 Continuance of unincorporated business or venture.
Fla. Prob. R. 5.370(a) Sales of real property where no power conferred.
Fla. Prob. R. 5.405(b) Proceedings to determine homestead real property.
Fla. Prob. R. 5.530 Summary administration.
Fla. Prob. R. 5.550 Petition to determine incapacity.
Fla. Prob. R. 5.560 Petition for appointment of guardian of an incapacitated person.
Fla. Prob. R. 5.600 Oath.
Fla. Prob. R. 5.649 Guardian advocate.
RULE 5.025. ADVERSARY PROCEEDINGS
(a) — (d) [No Change]
Committee Notes
The court on its initiative or on motion of any party may order any proceeding to be adversary or nonadversary or enter any order that will avoid undue delay. The personal representative would be an interested person in all adversary proceedings. A prescribed form for the caption is provided that will facilitate the clerks and the courts ability to segregate such adversary proceeding from other adversary proceedings and from the main probate file:
Court
Case #
In Re Estate of John B. Jones
Julia Jones
Petitioner
v
Harold Jones, as Personal
Representative, et al
Respondents.
Rule History
1975 Revision: New rule. 324 So.2d 38.
1977 Revision: Editorial changes to (a)(1).
1984 Revision: Extensive changes, Committee notes revised and expanded.
1988 Revision: Changes in (a) add proceedings to remove a guardian and to surcharge a guardian to the list of specific adversary proceedings and delete proceedings to determine and award the elective share from the list. Change in (b)(4) clarifies on whom the petitioner must serve formal notice. Editorial change in (d)(2) and (d)(5). Committee notes revised. Citation form changes in committee notes.
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