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Marriage and Florida Guardianships

Uncategorized Nov 26, 2019
post about Marriage and Florida Guardianships

If I am subject to a guardianship in West Palm Beach, can I still get married? What is an adult guardianship? What should your guardianship lawyer know about the right to marry and guardianship litigation? What is Florida Statute, Section 744.3215? You may want to read, Smith v. Smith, a March 2, 2016 Fourth District Court of Appeal opinion.

Florida Guardianships

Probate lawyers know that, when we talk about guardianships in Florida, we’re not talking about guardians for minors. Instead, we are talking about guardianships for adults. Adults may be subject to a guardianship if they become incapacitated and unable to care for themselves. Oftentimes, family members file for a guardianship over a loved one in order to ensure that the loved one is being properly cared for.

A Florida guardianship proceeding is initiated by the filing of a petition with a probate court. This petition explains that the person you are seeking a guardian for is incapacitated and needs some protection, or rights taken away.

There is then a process to determine whether the person is incapacitated. The court also considers whether there is a lesser restrictive alternative to a guardianship that adequately addresses the person’s needs. For example, if a person has a power of attorney and a revocable trust, he or she may not need a guardian.

Florida Guardianship Litigation

At Pankauski Hauser, guardianship matters have become a very large part of our probate practice. This is because guardianship litigation in Florida is becoming more and more frequent. Guardianship litigation is taken very seriously by Florida probate courts because we are talking about removing people’s rights. Probate Statute 744.3215 lists the rights that may be taken away from a person determined to be incapacitated.

Florida Statute 744.3215 and Marriage

This Florida statute outlines the rights a person determined incapacitated retains and which rights can be removed. Florida guardianship lawyers know that subsection (2)(a) of this statute provides:

(2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right:

(a) To marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval.

Smith v. Smith

Smith v. Smith was a March 2, 2016 opinion from the Fourth District Court ofAppeal.This Florida guardianship case dealt with a marriage between a person and a WardHere, a gentleman was declared to be incompetentor incapacitated. Court appointed counsel was appointed to represent him, and rights were taken away from him. In Florida, if someone is found to be incapacitatedorincompetent, a probate court judge will determine what rights should be removed from a Ward and what rights a Ward may retain.

Here, the Ward’s right to contract was taken away so his right to marry became “subject to court approval.” This is according to Florida Statute 744.3215(2)(a).  Restrictions on the right to marry is very common in a Florida guardianship setting. The Ward and the appellant married without the court’s consent, and the guardian of the Ward petitioned to annul the marriage. The guardian was successful in his petition and the marriage was annulled. Click here to read the entire case.