Guardianship is a legal proceeding in the circuit courts of Florida in which a guardian may be appointed to exercise the legal rights of an incapacitated person. Florida law requires the court to appoint a guardian for minors when parents die or become incapacitated, or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding the amount allowed by statute. Adult guardianship is the process by which the court may find an individual’s ability to make decisions so impaired that the court gives the right to make decisions pertaining to his or her person and/or property to another person. Guardianship is warranted only when no less restrictive alternative (such as a durable power of attorney, trust, health care surrogate or proxy, or other form of preneed directive) is found by the court to be appropriate and available. Florida law allows both voluntary and involuntary guardianships. Where appropriate, a guardian will be appointed by the court to make either personal or financial decisions for a minor or for an adult with mental or physical disabilities. A voluntary guardianship may also be established for an adult who, though mentally competent, is incapable of managing his or her own estate and who voluntarily petitions for the appointment.
Guardianship litigation: Guardianship litigation may occur at the inception of such a proceeding regarding whether the individual at issue is incapacitated or over the appointment of a guardian when competing petitions are filed. It may also occur post-appointment when a petition is brought to remove the guardian or to restore the ward’s rights, in part or in full.
Litigation in the probate, trust and guardianship arenas may pertain to joint account disputes, gifts and virtually anything else that families can fight about when a loved one dies or is declared to be incapacitated and a guardian is appointed.
Taking steps to legally institute a guardianship proceeding is complex and requires the help of an experienced attorney. Guardianship entails litigation from the inception of the proceedings if the petition to determine incapacity or petition to appoint a guardian is contested. If a guardian is appointed, he or she must be represented by an attorney admitted to practice in Florida. Among other responsibilities, the guardian must exercise the rights delegated to him or her, implement the guardianship plan, and care for the person and property of the ward, if those rights are delegated to the guardian. Litigation may be encountered during the course of the guardianship administration for a variety of reasons, including disputes pertaining to property of the ward, objections to an accounting and controversies involving the rights of interested persons.
Guardianship is based upon Chapter 744 of the Florida Statutes. These Statutes and the Florida Probate Rules which govern their procedure are constantly evolving based upon changes in our society. Legislative proposals are currently pending which if passed will revise many aspects of Florida Guardianship Law. We closely monitor the changes in Guardianship Law in order to provide you legal services based upon this changing landscape.