Emergency Temporary Guardianship in Florida
Fla. Stat. § 744.3031 · Fla. Prob. R. 5.648
Emergency temporary guardianship is the one guardianship proceeding that moves in days rather than months. It is also the one most often misunderstood from both sides: petitioners file it expecting a standalone remedy, and families on the receiving end learn of it only after letters have issued and the accounts are frozen. It requires a pending incapacity petition, a finding of imminent danger, and it expires — 90 days, with one extension.
What it is
Under Fla. Stat. § 744.3031(1), a circuit court may appoint an emergency temporary guardian of the person, the property, or both, of an alleged incapacitated person. The court must find 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. The powers granted must be specifically listed in the order, and an emergency temporary guardian may not be given more authority than the emergency actually requires.
The gating fact most petitioners miss is that an ETG is not a freestanding proceeding. It may be filed only after a petition to determine incapacity has been filed, and only before a guardian has been appointed (§ 744.3031(1); Fla. Prob. R. 5.648(a)). There is no way to obtain emergency relief over an adult's person or money without also putting their capacity at issue — which is a serious step, and the right first conversation to have. The narrow exception runs the other direction: under § 744.3031(3), where no guardianship petition has been filed by the time an order determining incapacity is entered, the court may appoint an emergency temporary guardian on its own motion.
Standing is deliberately broad. The application may be made by the alleged incapacitated person themself or by any adult interested in that person's welfare. The court appoints an attorney for the alleged incapacitated person, and that attorney may request that the proceeding be recorded and transcribed (§ 744.3031(1)). That request is worth making every time: the transcript of the imminent-danger showing is the record on which any later challenge to the appointment is built.
And it ends. The appointment lasts 90 days, or until a guardian is appointed, whichever comes first, and the court may extend it for one additional 90 days on a showing that the emergency conditions still exist (§ 744.3031(4)). That ceiling is not arbitrary — measure it against the plenary track in § 744.331, where the examining committee is appointed within 5 days of the incapacity petition, each member files a report within 15 days of appointment, and the adjudicatory hearing is held at least 10 and no more than 30 days after the last report is filed. A case that is genuinely moving reaches adjudication inside the first 90 days. An extension request is therefore informative: it usually means the incapacity case has stalled, and the reason it stalled is worth examining.
The other half of this practice is defensive, and it exists because of one provision. The 24-hour notice the statute requires can be dispensed with where the petitioner shows that giving it would itself cause substantial harm (§ 744.3031(2)). Used properly, that is how a court stops an exploitation in progress before the money moves. Used improperly, it means the first an adult or their family hears of the matter is a guardian already holding letters. The answers in that situation are in the same statute read backwards: the powers granted exceed what the emergency required, the imminent-danger finding is unsupported on the record, the extension petition does not show continuing conditions, the final report is late. We appear on both sides of that argument in the Orange County guardianship division.
What the Petition Must Show — and Who May File
The verified petition required by Fla. Prob. R. 5.648(a) is specific, and courts hold petitioners to it precisely because the relief is granted so quickly:
- A petition to determine incapacity must already be on file, and no guardian may yet have been appointed.
- The petitioner's residence and post office address, and the alleged incapacitated person's name, age, residence, and post office address.
- The imminent danger to the person's health or safety, or to the person's property — pleaded as facts, not characterizations.
- The nature of the emergency and the reason immediate action is required. This is the allegation that carries the petition, and the one a court-appointed attorney will test first.
- Whether the emergency guardianship sought is limited or plenary, and the property involved if known.
- The names and addresses of the known next of kin.
- The proposed guardian's name, residence, post office address, and qualifications, and that person's relationship to or prior association with the alleged incapacitated person — or a statement that no willing and qualified guardian has been located.
- Where the public guardian is the proposed appointee, the petition and notice are also served on the public guardian (Fla. Prob. R. 5.648(c)).
Who may apply is broader than most families expect: § 744.3031(1) permits the application by the alleged incapacitated person or by any adult interested in that person's welfare. No familial relationship is required. That breadth is what allows a concerned neighbor or a treating facility to act when relatives will not — and equally what allows a distant relative or a recent acquaintance to open a file over the objection of the people closest to the adult. It is the structural reason Florida's professional-guardian oversight statutes were tightened in 2020 by HB 709 / SB 994 (Ch. 2020-35, L.O.F.).
Emergency Temporary Guardianship vs. Plenary Guardianship
| Aspect | Emergency Temporary Guardianship in Florida | Plenary Guardianship (§ 744.331) |
|---|---|---|
| Authority | Fla. Stat. § 744.3031; Fla. Prob. R. 5.648 | Fla. Stat. § 744.331 |
| Prerequisite | An incapacity petition already on file | It is the incapacity petition |
| Finding required | Imminent danger to health or safety, or to property | Incapacity, after an examining-committee evaluation |
| Examining committee | None | Three members, appointed within 5 days; reports within 15 |
| Notice before hearing | 24 hours — dispensable on a showing of substantial harm | Full statutory notice to the person and interested parties |
| Time to letters | Days | Typically about two months to the adjudicatory hearing |
| Scope of powers | Only those the order specifically lists | The rights the adjudication removes from the ward |
| Duration | 90 days; one 90-day extension on continuing conditions | Until restoration, removal, resignation, or death |
| Closing out | Final report within 30 days of expiration (§ 744.3031(9)) | Annual guardianship plan and annual accounting |
How an ETG Moves in Orange County
Emergency petitions are heard in the Probate Division of the Ninth Judicial Circuit in and for Orange County, and an ETG hearing is frequently reached within the same week the petition is filed — sometimes the same day where the allegations and the supporting affidavits justify it. Nothing else in Chapter 744 operates on that clock.
Where the emergency is financial rather than medical, the companion relief often matters as much as the appointment itself. Section 744.3031(5) authorizes the court to enter an injunction, a restraining order, or other appropriate writ to protect the person's physical or mental health or safety — which is the mechanism that actually stops a transfer while the guardianship machinery catches up.
- Day zero: the petition to determine incapacity and the ETG petition are filed together. The court appoints an attorney for the alleged incapacitated person, who may substitute counsel of their own choosing, and appoints the three-member examining committee within 5 days (§ 744.331(2)–(3)).
- Notice: served on the alleged incapacitated person and that person's attorney at least 24 hours before the hearing commences — unless the petitioner shows that substantial harm would result from giving it (§ 744.3031(2); Fla. Prob. R. 5.648(b)).
- Hearing: short, affidavit-driven, and focused on imminent danger. Counsel for the alleged incapacitated person may ask that the proceeding be recorded and transcribed (§ 744.3031(1)); on either side of the case, ask for it.
- Order: the court specifies the powers and duties granted. An order that recites general guardianship authority rather than enumerated powers is vulnerable, and correcting it later costs more than drafting it properly.
- Oath, bond, and letters: the emergency temporary guardian takes an oath to perform the duties faithfully before letters issue (§ 744.3031(6)); a guardian of the property may be required to post bond under § 744.351 (§ 744.3031(7)); and the authority begins only when letters of emergency temporary guardianship are issued under § 744.345 (§ 744.3031(8)).
- The clock: 90 days from appointment, or earlier if a guardian is appointed. An extension requires a verified petition filed before the authority expires, showing that the conditions warranting the initial appointment still exist, served on the ward's attorney and on the emergency temporary guardian (§ 744.3031(4); Fla. Prob. R. 5.648(e)).
- Closing out: a final report is due no later than 30 days after the emergency temporary guardianship expires — for a guardian of the property, a verified inventory as of the date letters issued, a final accounting, and a statement of property on hand; for a guardian of the person, a summary of residential placement, medical condition, mental health and rehabilitative services, and social condition. It is served on any successor guardian, the ward, and the ward's attorney, and no final guardian or attorney's fees are paid until it is filed (§ 744.3031(9)).
- If the emergency temporary guardian is appointed the successor guardian, the final report must satisfy Fla. Prob. R. 5.690 and serves as the initial guardianship report — a useful efficiency, and a trap for anyone who treats the appointment as the end of the paperwork.
Is an attorney required?
Representation is mandatory: Fla. Prob. R. 5.030(a) requires every guardian to be represented by a Florida attorney, and an emergency temporary guardian is a guardian. The more practical point is the clock on both sides of the case. For a petitioner, the ETG is the one guardianship filing where preparation time is the scarce commodity — the incapacity petition, the emergency petition, the supporting affidavits, the proposed order with enumerated powers, the bond or depository arrangement, and the proposed guardian's qualifications all have to be assembled before anything can be heard. For the person on the receiving end, the window is 24 hours, and sometimes none at all; what can be done in that window depends almost entirely on how fast counsel can get to the file and the hearing. Either way, the 90-day expiration is the deadline that actually governs the engagement, because it is the date by which the underlying incapacity case must have gone somewhere.
Frequently Asked Questions
How quickly can an emergency temporary guardianship actually be obtained?
Days, and sometimes the same day. There is no examining committee to appoint and no adjudication to try — the court is deciding only whether there is imminent danger to the person's health or safety or to their property, on affidavits and the petition. What determines the speed in practice is not the court's calendar but how complete the filing is when it arrives: the incapacity petition, the emergency petition with facts rather than conclusions, the affidavits, and a proposed order that enumerates specific powers.
Can I file for an emergency guardianship without filing for incapacity?
No. Section 744.3031(1) permits the appointment only after a petition to determine incapacity has been filed and before a guardian has been appointed. The emergency petition rides on the incapacity case; it is not an alternative to it. The one provision running the other way is § 744.3031(3), which lets the court appoint an emergency temporary guardian on its own motion where no guardianship petition has been filed by the time an order determining incapacity is entered.
Can this happen without my mother being told?
It can. The rule is 24 hours' notice to the alleged incapacitated person and that person's attorney before the hearing commences, but § 744.3031(2) allows the petitioner to dispense with it on a showing that substantial harm to the alleged incapacitated person would result from giving the notice. That provision exists for the case where warning the wrong person would let the money leave the account overnight. It is also the provision most capable of abuse, and an order entered without notice is the one most worth attacking on the record.
My sibling obtained an ETG and froze our mother's accounts. What can we do?
Move quickly, and inside the existing case rather than by filing a new one. The incapacity petition is pending, which means there is a court-appointed attorney for your mother and a committee process already running. The arguments available are specific: that the powers granted exceed what the alleged emergency required, that the imminent-danger showing is unsupported, that material facts were omitted from a petition heard without notice, and — when the time comes — that an extension petition fails to show continuing conditions. Removal of a guardian for cause under § 744.474 is also available. Order the transcript if the proceeding was recorded.
What happens at the end of the 90 days?
The authority terminates by operation of law — 90 days from the appointment, or earlier if a guardian is appointed in the meantime (§ 744.3031(4)). One 90-day extension is available on a verified petition, filed before expiration, showing that the conditions that warranted the appointment still exist. If no extension is granted and no guardian has been appointed, the emergency temporary guardian's authority simply ends, and the final report comes due within 30 days.
Does an ETG mean my father has been declared incapacitated?
No, and the distinction matters. Throughout the emergency proceeding he is an alleged incapacitated person. The adjudication of incapacity happens later, at the hearing held after the three examining-committee members file their reports, and the court may find him fully capable. An ETG is a holding action on a specific danger, not a determination about him.
Can an emergency temporary guardian sell the house or change the estate plan?
Only if the order says so, and even then not freely. Section 744.3031(1) requires the powers to be specifically listed and bars granting more authority than the emergency requires, so an ETG has no general authority over the ward's affairs. Beyond that, the significant property decisions — sale of homestead, settlement of major claims, and the narrow circumstances in which estate-planning documents can be touched — require separate court approval under §§ 744.441 and 744.446. An emergency appointment is a poor vehicle for anything irreversible, and courts treat it that way.
Who pays for all of this?
Reasonable guardian and attorney's fees in a guardianship proceeding are payable from the ward's assets to the extent the services benefited the ward (Fla. Stat. § 744.108), and that includes the emergency phase. One useful piece of leverage: under § 744.3031(9)(b), no final fees for the emergency temporary guardian or that guardian's attorney may be paid until the final report has been filed. Where the ward's assets are limited, or where the court concludes the work did not benefit the ward, the petitioning party may bear the cost.
Will the emergency temporary guardian automatically become the permanent guardian?
No. Appointment of a guardian after an adjudication of incapacity is a separate decision, made at a separate hearing, and the court is not bound by who held the emergency appointment. In practice an ETG who has performed well has a real advantage, and one whose conduct during the 90 days has been questioned has given the objecting parties their evidence. Where the emergency guardian is appointed successor, the final report must meet Fla. Prob. R. 5.690 and doubles as the initial guardianship report.
Is a bond required?
For a guardian of the property, it may be. Section 744.3031(7) provides that an emergency temporary guardian of the property may be required to post bond under § 744.351 before exercising authority. In practice the court's choice between a bond and a court-designated restricted depository depends on what the asset is and how quickly it has to be protected — and in a genuine exploitation case, the depository order is frequently the faster and more effective of the two.
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
An emergency involving an adult who cannot protect themselves — or an ETG filed against your family?
We file emergency temporary guardianship petitions in the Orange County Probate Division, and we defend against them where the emergency does not hold up. Call (407) 843-0430 or schedule a consultation with our Orlando guardianship attorneys.
Or text PROBATE to (407) 906-9507 for a faster response.
Yergey & Yergey, P.A. | 910 N. Fern Creek Avenue, Orlando, FL 32803
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