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Miami Guardianship Litigation and the Removal of Rights

What We Do Dec 16, 2020

If I am subject of a guardianship in Miami, does that mean I do not have the right to make any decisions for myself? Miami guardianship litigation is serious business and it’s booming !! (for good or for ill, right?) What rights can a guardianship take away from a person deemed incapacitated in Florida? What is a ward in a Florida guardianship? All of these are good and serious questions which experienced Guardianship Litigators deal with in court every day. Can a ward get married? Can a ward vote? Can a ward hire his or her own attorney? Guardianships are serious as certain rights can be taken away from a person deemed incapacitated. If you are considering petitioning for guardianship over someone, you may want to read Florida Statute 744.3215.

Miami guardianship litigation

Florida Guardianship Law 744.3215

This Florida statute is very important as it outlines the rights a person determined incapacitated retains and which rights can be removed.

Here are rights that can be removed by a guardianship court in Florida:

1) right to marry 2) right to enter into a contract 3) right to vote 4) right to personally apply for government benefits 5) right to have a driver license 6) right to travel 7) right to seek or retain employment 4) right to sue and defend lawsuits 5) right to manage property or to make any gift or disposition of property 6) right to determine his or her residence 7) right to consent to medical and mental health treatment 8) right make decisions about his or her social environment or other social aspects of his or her life.

Some of these rights may be removed in their entirety, while others are removed from the incapacitated person but delegated to the guardian.

Miami Guardianship Litigation & Right to Marry

Smith v. Smith, a March 2, 2016 Fourth DCA opinion, is a good example of a guardianship case involving the removal of a person’s rights. This Florida guardianship case specifically dealt with a marriage between a person and a ward. (When parties dispute a guardianship, it’s often referred to as “contested” guardianships. All that means is that you are involved in Miami Guardianship Litigation.)

In this case, 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. 

The ward, prior to the marriage, had been declared incapacitated in a Florida guardianship proceeding and rights, including his right to contract, were taken away from him. In Florida, after someone is found to be incapacitated, the probate court judge determines what rights should be removed from the ward and what rights the ward can retain.

Since the ward’s right to contract was taken away, his right to marry became “subject to court approval.” This is according to Florida Statute 744.3215(2)(a)

Recent Florida Guardianship Appeal

A March 6, 2020 Fourth DCA opinionErlandsson v. Guardianship of Elandsson, is another great example of a Florida guardianship proceeding where a person’s rights are at risk of being taken away. Here, a petition for limited guardianship was filed by two parents seeking to remove rights, specifically those specified in sections 744.3215(2) and (3), from their daughter. They believed their daughter was in need of a Florida guardianship because she was not attending to basic psychiatric needs and was unable to manage her own finances.

If you are involved in guardianship litigation in Florida, call (561)279-6344 ext.101 for a FREE consultation with an experienced West Palm Beach guardianship attorney.