West Palm Beach, Florida - Guardianship lawyer represented Appellant with appealing the order determining incapacity and appointing a plenary guardian for her mother.

We grant the appellant's motion for rehearing, withdraw our opinion

dated March 2, 2022, and issue the following opinion in its place.

Deborah Duross Guibord ("Appellant”) appeals the final order

determining incapacity and appointing a plenary guardian for her mother,

Kathleen Duross Ford ("the Ward”), and the order denying her motion for

rehearing. Appellant asserts multiple trial court errors, including failing

to properly apply the presumption of undue influence involving selfdealing, failing to comply with guardianship statutes in appointing the

guardian, precluding and ignoring evidence, and relying on improper

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expert testimony outside the witness's expertise. We affirm the trial court's

rulings without discussion, except as to one issue, the denial of a motion

for rehearing as moot. As to that issue we reverse and remand for further

proceedings.

After the trial court issued its order determining incapacity and

appointing the plenary guardian, Appellant filed a motion for rehearing

based on newly discovered evidence of a witness who would offer a firsthand account of prior physical abuse of the Ward by the appointed

guardian. Unfortunately, the Ward died before the trial court ruled on the

motion for rehearing. The guardian filed a response opposing the motion.

The trial court denied the motion without a hearing, concluding the motion

was moot due to the death of the Ward.

Regarding the final order determining incapacity and appointing the

plenary guardian, after extensively reviewing and considering (1) the large

record on appeal; (2) the forty-eight-page order with extensive findings of

facts and conclusions of law; and (3) the arguments on appeal, we are not

persuaded by any of Appellant's arguments. Granting appellate relief

regarding the appointment of the guardian as requested by Appellant

would involve reweighing evidence and accepting what Appellant contends

is the "better” evidence. Such a course of action is improper for an

appellate court. See Michael Anthony Co. v. Palm Springs Townhomes, 174

So. 3d 428, 432 (Fla. 4th DCA 2015) (explaining that it is not the function

of appellate courts to reweigh evidence). We conclude the trial court

properly ruled on the evidentiary issues and reached appropriate legal

conclusions based upon the evidence presented.

Regarding the trial court's denial of the motion for rehearing as moot

due to the Ward's death, we remind guardianship judges that the death of

the ward renders a motion for rehearing moot as to the incapacity

determination and the appointment of the guardian of the person. That is

because "[a] guardian of the person is discharged without further

proceeding upon filing a certified copy of the ward's death certificate.” §

744.521, Fla. Stat. (2020); see also Fla. Prob. R. 5.680(a) ("A guardian of

the person is discharged without further proceeding upon filing a certified

copy of the ward's death certificate.”); In re Guardianship of Beck, 204 So.

3d 143, 146 (Fla. 2d DCA 2016) ("The parties agree that [the ward's] death

rendered moot any further proceedings with respect to a determination of

whether he was incapacitated or whether a plenary guardian should be

appointed.”).

However, the ward's death does not render a motion for rehearing moot

as to the appointment of a guardian of the property if the guardian of the

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property handled the ward's property for a period of time or engaged in

any transactions affecting the ward's property to a significant degree. That

is because collateral legal consequences may flow from the appointment of

the guardian of the property. As we have previously explained:

The guardian of property is not discharged upon the ward's

death, but must continue the administration until a petition

for discharge is granted and his or her final accounting is

approved. See § 744.531, Fla. Stat. (2012). Section

744.441(16), Florida Statutes (2012), allows a guardian, with

court approval, to pay "reasonable funeral, interment, and

grave marker expenses for the ward from the ward's estate, up

to a maximum of $6,000.” Upon applying for discharge, the

guardian may also "retain from the funds in his or her

possession a sufficient amount to pay the final costs of

administration, including guardian and attorney's fees

regardless of the death of the ward, accruing between the filing

of his or her final returns and the order of discharge.” §

744.527(2), Fla. Stat. (2012); Fla. Prob. R. 5.680(b)(3)

As the guardian correctly conceded at oral argument, the Ward’s death

did not render the motion for rehearing moot as to the appointment of a

guardian of the property. Although the newly discovered evidence claim

may involve issues related to the appointment of the guardian of the

person, the motion for rehearing also asked the court to reconsider its

ruling with respect to the guardian of the property, as Appellant claimed

it overlooked evidence that she contended should have prevented the trial

court from appointing the guardian to this fiduciary position. The trial

court refused to consider it, erroneously concluding that it was moot.

Since the motion was not entirely moot, we reverse for the trial court to

consider the motion for rehearing only as to the appointment of the

guardian of the property