Summer Jasser, Lena Mamone and Anthony Saadeh, as Co-Trustees of the Trust Agreement of Karim H. Saadeh dated June 24, 2009, Appellants, v. Karim H. Saadeh, Appellee

Summary

The Fourth District held that a trust executed by a settlor whose right to contract had been removed by an emergency temporary guardian (ETG) with plenary authority was void ab initio for lack of capacity under section 736.0402(1), Florida Statutes. The court also ruled that an agreed order dismissing incapacity proceedings while the ETG remained active was a nullity because the statutory scheme mandates either an incapacity determination or termination of the ETG, and parties who relied on the ETG’s continued deprivation of rights were judicially estopped from asserting the dismissal was final.

Holdings

1. A trust is void ab initio where the settlor lacked legal capacity to create it because an emergency temporary guardian had been granted plenary authority, including the right to contract, thereby removing that right from the ward.
2. An order dismissing incapacity proceedings without determining incapacity and without terminating the emergency temporary guardianship is a nullity; the court retains authority to proceed with the incapacity determination and subsequent relief.

Questions Presented

1. Whether the May 2009 agreed order dismissing incapacity proceedings was final and not subject to attack.
2. Whether Saadeh lacked the legal right to contract and execute the trust due to the appointment of an emergency temporary guardian with plenary authority.
3. Whether the trust agreement was void ab initio.

Disposition

affirmed