Florida has a substantial elderly population. As they age, these individuals become less able to independently manage their own affairs. Therefore, a guardianship is inevitably required to assist such persons in meeting the essential requirements for their health and safety, financial affairs, and protection of their rights.
The guardianship process can be complicated and time-consuming and is best handled with the assistance of a Florida and Palm Beach County guardianship litigation lawyer at Comiter, Singer, Baseman & Braun. Our attorneys have a thorough understanding of Florida’s guardianship laws.
How Florida Guardianship Works
An individual, typically an elderly individual, known initially as an “alleged incapacitated person” and then after an adjudicated of incapacity is made, as a “ward,” can have their rights delegated to a guardian. If certain legal criteria are established, the Court will adjudicate an alleged incapacitated person’s capacity, or lack thereof. If the latter is found, a guardian may be appointed if the ward does not have “lesser restrictive alternatives.”
Under Florida law, the Court is required to appoint a guardian for a minor child when the child’s parents become incapacitated or die, or if a child receives an inheritance, the proceeds of a lawsuit, or an insurance policy payout that exceeds the predetermined statutory amount.
Guardianship for an adult is imposed when the Court finds that an individual no longer has the capacity to exercise his or her own rights. Guardianship is only authorized when the Court finds that there are no lesser restrictive alternatives, examples of which include a durable power of attorney, designation of healthcare surrogate, pre-need guardian, or an advanced directive.
Under Florida law, both voluntary and involuntary guardianships are allowed. A voluntary guardianship may be established for a mentally competent adult who is incapable of managing his or her own estate, and therefore voluntarily petitions for the appointment of a guardian for him or herself.
Because legislative intent clearly favors the least restrictive form of guardianship, Florida law provides for limited as well as plenary adult guardianship. A limited guardianship is favored if the Court finds—based on the recommendations of a three-member examining committee appointed to evaluate the ward—that the ward is able to partially, but not completely, perform the tasks necessary to care for his or her affairs, and if the individual does not have pre-planned, written instructions for all aspects of his or her life.
A “plenary” guardian is a person appointed by the Court to exercise all delegable legal rights and powers of the adult ward after the court makes a finding of complete incapacity.
Guardianship Disputes Often Lead to Litigation
Due to the very nature of the guardianship system, during which ward may face the loss of personal control over all or some of their civil and legal rights, conflict is inevitable. The conflict most often arises during the initial stages of the process, between the ward’s children who are vying for control of the ward in the later years of the ward’s life when they can no longer manage their own affairs. Such guardianship disputes are often the precursor to will contests. Other guardianship disputes includes resistance by the ward to guardianship, generally, and may result in the petitioner for the guardianship falling out of favor with the ward and leading to a potential disinheritance. If you are involved in a guardianship dispute, let a Florida and Palm Beach County guardianship litigation lawyer at Comiter, Singer, Baseman & Braun help you or your loved one.
Guardianship Disputes in Florida
For example, say the family of the ward agrees that the ward is incapacitated. However, they cannot agree on who should be appointed as the ward’s guardian. Florida laws allow for more than one guardian and also allow separate guardians for the ward and the property of the ward. Although multiple guardians may be a suitable solution to a dispute among the family, this solution may not be realistic when the parties involved tend to argue amongst themselves. Accordingly, a Florida and Palm Beach County guardianship litigation lawyer can assist a litigant in this scenario of guardianship litigation with when multiple parties petition to become the sole guardian, leaving the Court has to make a determination of who is best suited to serve as the ward’s guardian.
The Court also has the discretion to reject all of the petitioners and appoint a professional guardian instead. Commonly, the person who primarily took care of the ward prior to the guardianship petitions the Court to simply continue in this role but may be challenged by other parties who allege improprieties in the caretaker’s prior actions, giving rise to a dispute.
Incapacity Disputes in Florida and Palm Beach County
Disputes may also arise when the ward objects to the initiation of guardianship proceedings. Upon the filing of an incapacity petition, the Court will select a court-appointed lawyer to represent the interests of the alleged incapacitated person, commonly referred to as the “AIP.” Even though legal representation has been appointed for the AIP, the AIP has a right to choose private counsel for representation until the ward’s right to contract has been removed by the Court.
The incapacity proceedings are often conducted quickly since there are statutory deadlines involved, and therefore, if an AIP desires self-appointed private counsel, the AIP must contact the desired attorney as soon as possible so there is sufficient time to discuss options and manage the expectations of the AIP. Fighting the imposition of a guardianship requires a highly skilled attorney, such as a Florida and Palm Beach County guardianship litigation attorney at Comiter, Singer, Baseman & Braun.
Breach of Guardian Duties
Another type of dispute that often leads to litigation arises after a guardianship has been established and a guardian has been appointed. A guardian of the ward’s property typically controls the finances, and legal matters of the ward, but this control can be abused. A guardian of the person, on the other hand, will control the healthcare decisions. Often the guardian of the ward’s property is also appointed as the guardian of the ward’s person. Guardians have a fiduciary duty to the ward, which means the guardians must carry out their duties and obligations as set out in the Florida Statutes §§ 744.361-462 for the benefit of the ward rather than their own benefit.
Guardian’s breaches are often found when the guardian of a ward mismanages the ward’s finances, engages in self-dealing, or outright converts the ward’s assets into his or her own name. The ward’s next of kin, heirs at law, and those that would have benefitted from the ward’s prior estate planning are all interested persons and have standing to challenge the guardian’s actions with the Court.
If a guardian fails to conform with these duties and obligations, the guardian may face removal, along with civil and criminal penalties, depending on the nature of the guardian’s acts. Florida Guardianship Law specifically indicates that a guardian may not abuse, neglect, or exploit a ward. Florida guardianship law requires mandatory reporting of these actions, and may further impose civil and/or criminal penalties for exploitation of an elderly person or disabled adult.
Contact a Florida and Palm Beach County Guardianship Litigation Attorney for Help with Guardianship Disputes
At Comiter, Singer, Baseman & Braun, we have a legal team of attorneys experienced not only in guardianship disputes but also in a wide range of estate planning practices.
If you are involved in a guardianship dispute, whether as a guardian, a ward, or as any other type of interested party, we can help. Please contact us online or toll-free at 1-800-226-1484 to get started.