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Serving Flagler, Putnam, St. Johns, and Volusia Counties

PB-2007-021-SC

IN THE CIRCUIT COURT OF FLORIDA, SEVENTH JUDICIAL CIRCUIT IN AND FOR FLAGLER, PUTNAM, ST. JOHNS AND VOLUSIA COUNTIES

Re: Incapacity Petitioner Serving as Guardian

Ref: PB-2007-021-SC

WHEREAS, it has been made known to the undersigned that the prompt and expeditious administration of justice requires that the guardianship division of the circuit court take all appropriate steps to expeditiously consider all incapacity and guardianship petitions, and to protect the rights of alleged incapacitated persons in cases filed pursuant to chapter 744, Florida Statutes, and

WHEREAS, petitioners in incapacity and guardianship cases commonly file both incapacity and guardianship petitions and seek to be appointed guardian; often, such petitioners are immediate family members of the alleged incapacitated person, but many alleged incapacitated persons have no family or other interested persons willing to file such pleadings or to serve as guardian, and without willing petitioners, persons in need of guardianship services would remain neglected and vulnerable, and

WHEREAS, Chapter 744, Florida Statutes, contains numerous specific provisions that provide the circuit court with the duty and authority to protect the rights of alleged incapacitated persons; to wit, section 744.331(2) provides that each alleged incapacitated person must have an attorney independent of the petitioner or any other interested party; and section 744.309(3) prohibits the court from appointing a guardian who has a professional or business relationship with the alleged incapacitated person unless the court determines that any potential conflict of interest is insubstantial and that the appointment would be in the best interest of the ward; and section 744.446 lists conflicts of interest and prohibited activities, but does not include in its prohibitions the appointment of the person or entity that filed the initial incapacity and guardianship pleadings.

NOW THEREFORE, I, J. DAVID WALSH, Chief Judge ofthe Seventh Judicial Circuit of Florida, hereby find
that nothing in chapter 744, Florida Statutes, prohibits the court from appointing a person, entity or the Public Guardian as established under section 744.703 because that person, entity or Public Guardian filed the incapacity or guardianship petition; further, the function of filing both a petition to determine incapacity and a petition to appoint the petitioner as guardian, standing alone, does not create a substantial conflict of interest as described in section 744.309(3), Florida Statutes, but that the guardianship court and the attorney for the alleged incapacitated person should examine each petition to determine if any further conflict exists, disqualifying the petitioner. If no further conflict exists, the guardianship court should proceed to consider the petition.

IT IS FURTHER ORDERED that nothing in this order is intended to limit the court’s discretion in appointing
guardians or to alter the court’s duty to faithfully and uniformly apply all guardianship statues and rules.

TO BE RECORDED in Flagler, Putnam, St. Johns & Volusia counties.

DONE AND ORDERED in Daytona Beach, Volusia County, Florida this 6th day of August 2007.

/s/ J. David Walsh
J. David Walsh
Chief Judge

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Serving Flagler, Putnam, St. Johns and Volusia Counties