When can an Emergency Temporary Guardian (ETG) file a lawsuit?
When does the statute of limitations start to run in a guardianship? In the recent decision of Barrier v. JFK Medical Ctr. (Fla. 3d DCA June 17, 2015), the temporary nature of emergency temporary guardian appointment does not impose a legal duty on the emergency temporary guardian to protect the ward’s interest in a medical malpractice action. The emergency temporary guardianship must enumerate all powers even where the emergency temporary guardian is given plenary power.
Under Florida law, an emergency temporary guardian is a person appointed by the Court when it appears that there is an imminent danger that the physical or mental health or safety of an alleged incapacity person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. A petition to determine incapacity must be filed prior to the emergency temporary guardian appointment. The authority of the emergency temporary guardian expires upon the earlier of ninety (90) days after the date of appointment or when a is appointed. The Court may extend this time period up to an additional ninety (90) days, upon a showing that the emergency conditions still exist.
In Barrier, the trial court granted summary judgment in favor of the defendants—numerous health care providers—based on the statute of limitations. It was determined below that the statute ran from the time the emergency temporary guardian was appointed and had knowledge of the possibility of medical negligence. On appeal, the Third District reversed this decision to hold, that “knowledge . . . of possible malpractice, may not be imputed [to the ward]” until a determination as to incapacity is made and the emergency temporary guardian is appointed permanent guardian of the ward’s property.
The ward had fallen into a coma from which he has not emerged. The ward’s mother petitioned to be appointed emergency temporary guardian over her son’s person and property. On April 13, 2010, the probate court appointed the ward’s mother as emergency temporary guardian and issued letters of guardianship which granted her:
[A]ll powers and duties given to a plenary guardian of the person and property, including but not limited to authority to consent to medical treatment for the ward and to demand, obtain, review and release to others the medical records of the ward.
The Court noted that the emergency temporary guardian’s purpose is to secure the health and safety of the temporary ward until his or her capacity can be determined and then, if necessary, a plenary guardian can be appointed. Pursuant to section 744.3031, Florida Statutes:
(1) A court, prior to the appointment of a guardian but after a petition for determination of incapacity has been filed pursuant to this chapter, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The subject of the proceeding or any adult interested in the welfare of that person may apply to the court in which the proceeding is pending for the emergency appointment of a temporary guardian. The powers and duties of the emergency temporary guardian must be specifically enumerated by court order. . . .
(3) The authority of an emergency temporary guardian expires 90 days after the date of the appointment or when a guardian is appointed, whichever occurs first. The authority of the emergency temporary guardian may be extended for an additional 90 days upon a showing that the emergency conditions still exist.
In Florida, an action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence . . . .” § 95.11(4)(b), Florida Statutes. A ninety-day extension of the statute of limitations is permitted under section 766.104(2), Florida Statutes.
On May 19, 2010, before the temporary guardianship expired, the ward was determined to be incompetent and the emergency temporary guardian was appointed to be the ward’s plenary guardian of his person and property.
On July 19, 2012, after receiving a 90-day extension under the statute, the plenary guardian served notices of intent to initiate litigation for medical malpractice against the defendants below as required under the statute. The plenary guardian followed this up by filing a complaint for medical negligence.
The statutory framework governing emergency temporary guardian appointment is that the emergency temporary guardian’s powers be specifically enumerated by court order. Citing a litany of decisional law in this regard, the Third District agreed that an emergency temporary guardian’s powers must be specifically enumerated even where the emergency temporary guardian is given plenary power. The emergency temporary guardian assumes a guardianship over a person not yet declared to be incapacitated and in need of a guardian. The emergency temporary guardian’s powers should be limited to only those that are necessary to protect the ward’s interests until the determination of incapacity (or capacity) is made.
As noted above, the emergency temporary guardian’s purpose is to secure the health and safety of the temporary ward until a capacity determination. This does not contemplate the pursuit of a medical malpractice suit, which among other things, requires the investigation and analysis of the patient’s treatment and condition, and the retention of at least one expert to prepare an affidavit to accompany the statutorily-mandated notice of intent to initiate litigation in a medical malpractice action. The fact that the emergency temporary guardian had knowledge of the possibility of a medical malpractice suit is not to be imputed to the ward, unless and until the emergency temporary guardian is appointed to be the plenary guardian. As a result, the Third District reversed the grant of summary judgment and held the medical malpractice action was timely filed.