Background
Kevin Bandoian’s sister petitioned to determine their mother Mary Lucy Bandoian’s capacity and to appoint a guardian. Kevin, who had served for years as his mother’s durable power of attorney and healthcare proxy, objected and asserted that those arrangements were less restrictive alternatives to guardianship.
The only hearing notice scheduled an in-person hearing before a general magistrate at the Clearwater Annex on June 27, 2025, at 9 a.m. Kevin filed a motion to continue based on outstanding discovery and objected to the magistrate hearing the petitions. The record contained no ruling on either filing and no notice setting a hearing before a judge. Nevertheless, the matter proceeded later that day before a circuit judge at another location, without Kevin or his primary counsel present. The resulting order adjudicated Mary Lucy incapacitated, revoked Kevin’s power of attorney and healthcare-proxy authority, and appointed a professional plenary guardian.
The Court’s Holding
The Second District held that the proceeding violated section 744.331(5)(a), Florida Statutes (2024), and Kevin’s procedural due process rights. The statute requires an incapacity adjudicatory hearing to occur at the time and place specified in the hearing notice. Because the only notice identified a different time, place, and judicial officer, statements that the matter would proceed before a circuit judge that day did not satisfy the statute’s express notice requirement.
The court also concluded that the general magistrate lacked authority to schedule the matter before the circuit judge. Florida Probate Rule 5.095(c) requires party consent for referral to a magistrate, and Kevin’s objection ended any consent and prevented the magistrate from taking further action. The court reversed and remanded without deciding whether the trial court improperly failed to consider a less restrictive alternative; that issue must be addressed on remand. It treated the challenge concerning the unresolved continuance motion as moot.
Key Takeaways
- An incapacity hearing must be conducted at the time and place specified in the notice, as required by section 744.331(5)(a).
- A magistrate cannot continue acting after a party objects to the referral because probate-magistrate jurisdiction depends on the parties’ consent.
- The appellate court did not decide whether the power of attorney and healthcare proxy were sufficient alternatives to guardianship; the trial court must address that question on remand.
Why It Matters
The decision requires strict compliance with Florida’s statutory notice rules in incapacity and guardianship proceedings. Informally redirecting participants to a different judge, time, or location does not replace notice specifying where and when the adjudicatory hearing will occur.
The ruling also clarifies the limits of a probate magistrate’s authority after an objection. It does not resolve whether plenary guardianship was substantively warranted or whether a less restrictive alternative was adequate.