Litigating Guardianship Disputes: understanding the roles of the different family members

For good or ill, guardianship litigation has exploded in South Florida.   Probate Courts and probate judges in Broward County, Miami-Dade County and Palm Beach County, Florida preside over guardianship trials more than ever.   Florida elder law lawyers and lawyers who assist senior citizens have seen their practices get bigger and their client list get longer.  Now, probate lawyers and Florida lawyers who prepare wills and trusts in smaller communities like Boca Raton, Boynton Beach, Delray Beach, and Aventura and Plantation are adding guardianship matters to their list of legal services which they provide.   In South Florida, all guardianship matters are heard before a probate judge, one who is experienced in related issues of trusts, estates, probate and estate administration.   Those probate judges preside over evidentiary hearings to determine capacity, and incapacity, of an individual, also called an “alleged incapacitated person” or “AIP” for short.  A hearing on capacity or incapacity is held: and if the Florida resident or AIP is determined or found by a probate judge to be incapacitated, a Florida guardian may or may note be appointed.  There are strict rules for who may be a guardian in Florida.  The probate, or guardianship, judge will then preside over a trial or guardian lawsuit to appoint a guardian of the Florida resident if that Florida resident is deemed incapacitated–if a guardian is even needed and if family members or others disagree or dispute who the guardian should be.   Put another way:  The probate judge will then preside over a guardianship trial if a guardian is needed or there is a dispute, or lawsuit, over who should serve as guardian of the Florida resident and the ward’s property.   There are many “legal actors” in disputes involving guardians, guardianships, a Florida resident’s property and the ward’s rights.   The roles can be different.  The ward or the incapacitated person is represented by an attorney and a guardian.  Their role is to look out for and protect the incapacitated Florida resident.   Probate judges in Florida will also take their role seriously and protect the ward.  There may be a guardian of the rights of the Florida resident.  There may be a guardian of the property of the Florida resident. They may be different people.   Spouses of the ward may have their own personal interests and want their own probate lawyer or guardianship lawyer or trial lawyer for the guardianship trial.   The spouse’s interests may or may not be viewed as the same as the Florida resident/ward.  … same for family members.   Children and grandchildren and even sisters and brothers may have their own individual interests that they want to advocate for or litigate for in the guardianship trial.   Their interest in the Florida resident’s property or his or her personal rights may be viewed as different from the Florida resident’s….or other family members’.   Family members who are involved in a Florida guardianship may not have all the same agendas or interests and may want their own, individual, guardianship litigator or guardianship trial lawyer.   Not all guardianship or elder law lawyers in Palm Beach and Broward County, Florida litigate, although many go to court for other reasons than to try a guardianship case.  While interested persons who may be permitted to be involved in the guardian trial may have their own probate lawyers or guardian lawyers, be cautious.  Guardianship trials in Florida are expensive.   Who’s protecting your interests and advancing your agenda?  Advocate hard. Litigate smart.