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Guardianship Litigation

What happens when a person is unable to manage their affairs? Who is given the power to make their decisions? And what happens if family members can’t agree on who should be in charge? So called “contested” Florida guardianships are on the rise. Ask any Florida probate litigator, and they will tell you that their guardianship practice has exploded over the last 10 years. More and more family members seek the assistance of probate courts when a mother, father, or elderly adult family member becomes frail or vulnerable and unable to manage their affairs. Sadly, financial exploitation of the elderly in Florida appears to be on the rise, too. Florida guardianship litigation law firms now help families recover money, bank accounts, and property, which may have been taken improperly by someone who exploited a frail, elderly senior citizen by means of elder abuse or financial exploitation.

Florida courts have the ability to delegate a citizen’s rights in favor of another. This is known as guardianship. The procedure begins with a verified petition to determine incapacity and petition for appointment of guardian. The guardianship can be over a person, their property, or both (plenary). In a guardianship, if an alleged incapacitated person needs assistance, the probate court will end up taking away some or all of that person’s rights. The petition for incapacity should specify which rights enumerated in F.S. § 744.3215 the alleged incapacitated person is incapable of exercising, to the best of the petitioner’s knowledge (or if the petitioner has insufficient experience to make such judgment, the petition must so state). F.S. § 744.302(2)(f). Pursuant to F.S. § 744.3201(1), any “adult person” may petition to determine the incapacity of any other person. Before the petition for appointment of guardian becomes ripe, the petition to determine incapacity must be addressed. Sometimes, people file for Florida guardianship against a mother or father or even boyfriend or husband or wife and there is really no need for a guardianship. Sometimes, family members use the guardianship system to fight about family money, to control money or a family trust, or to control mom or dad, which is not proper. The focus of any guardianship, and the focus of any Florida guardianship lawyer, should be the well-being, care and protection of the person who may need a guardian.

You can read the Florida Guardianship Code here. 

The Florida Statutes in the Guardianship Code do not offer a definition of capacity. McJunkin v. McJunkin, 896 So. 2d 962, 963 (Fla. 2d DCA 2005). However, under Florida law an “incapacitated person” is “a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.” F.S. § 744.102(12).

The Guardianship Examining Committee. Within 5 days of the filing of the petition to determine capacity, the court must appoint an examining committee of three individuals to examine the alleged incapacitated person. F.S. § 744.331(3)(a). One members of the examining committee must be a psychiatrist or other physician. Id. The members of the examining committee must file reports with the court regarding the alleged incapacitated person within fifteen days after appointment. F.S. § 744.331(3). These reports opine as to whether or not a person lacks capacity and whether any rights should be removed. Yes, Florida guardianships are serious business. If someone can’t manage their affairs or care for themselves, the court will take away some of their rights.

Florida Guardianship Trial. Pursuant to F.S. § 744.331(5), an adjudicatory hearing shall be set no more than 14 days after the filing of the reports of the examining committee members, unless good cause is shown. At this hearing the partial or total incapacity must be established by clear and convincing evidence. Id. It is noteworthy that this burden of proof falls between a preponderance and a reasonable doubt, those used in civil and criminal litigation, respectively.

If a finding of incapacity is made, the court then may consider the appointment of a guardian. Pursuant to F.S. § 744.312(2) the court must give preference to the appointment of a person who is related by blood or marriage to the ward but may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not. The court shall also consider the wishes expressed by an incapacitated person as to who shall be appointed guardian. F.S §. 744.212(3)(a). A person who has been convicted of a felony shall not be appointed guardian. F.S. § 744.309(3). Further, a nonresident of the State of Florida may only serve as guardian of a resident ward if he or she is a relative (by blood or adoption) of the ward or a spouse of that relative.

Chapter 744 of the Florida Statues contains the law regarding guardianship in the State of Florida. While provisions such as F.S. § 744.3085 regarding guardian advocates for persons with developmental disabilities provide for a less restrictive form of guardianship, circumstances often mandate that a Guardianship is sought which can entail litigation regarding both the petition to determine incapacity as well as the petition for appointment of guardian. It is important to note that the Florida Evidence Code is applicable to guardianship proceedings and the burden of proof must be met.

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