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How to Stop a Guardianship in Florida

Many times, a family member, or even a lawyer, or neighbor, may file for Florida guardianship when one is not necessary. If you are the person who someone thinks needs a guardian, or if you are a family member, wife or spouse, or adult child, of someone who is accused of being incompetent, you have rights. You can try to stop the guardianship. How do you stop a person who filed for guardianship?

There are three ways to stop a guardianship in Florida.

First, you can, perhaps, object to standing. Standing is often described by Florida guardianship lawyers as the legal ability to come into court and be heard. The right to participate in a lawsuit. You or I can’t go to a court and start arguing points of law, in say, some patent infringement case about a Silicon Valley company. Why? Because we live in Florida, and have absolutely nothing to do with some patent infringement case in California. There’s no connection. The same holds true for probate litigation in Florida. A person down the street, or at the Greyhound bus terminal, just can’t, on their own, come into court and claim that you need a guardian. There has to be some connection, or nexus, to filing for guardianship in a Florida probate court. The person who files has be “interested” in you or your welfare. If they don’t have a connection to you, you can ask that the petition for guardianship be dismissed for lack of standing. Who has standing to file for guardianship in Florida? Our appellate courts, including the Florida Supreme Court, have looked at standing broadly in the guardianship setting. An interested person need not be only a family member, but could be an in-law, neighbor, business partner, lawyer, or other.

Second, the guardianship is not necessary if you are competent. Think of competency as the ability to care for one’s self, and the ability to analyze and reason on your own. Can you go into a car dealership or a WalMart and analyze different options for cars, or a television? Can you understand the different prices and products? Do you understand what you are doing, who you are talking to, and what you want to accomplish? When a guardianship petition is filed in Florida, you typically have two matters: a petition to determine incapacity, where a court is being asked to make a finding whether you are totally incompetent, partially incompetent, or not incompetent (a finding that you are, indeed, competent). That is the “mental health” aspect of the guardianship proceeding which includes an examination of the “alleged incapacitated person” by an examining committee, whose members file reports. The other matter is the petition for appointment of guardian. If you are competent, you don’t need a guardian. If you are in need of some assistance, you may need a guardian for some matters, which means that a court may remove some of your rights. These rights may include the right to file taxes, to hire people, to handle your finances, the right to marry, choose where you live and who you socialize with. You may or may not need a guardian of the person, someone who will make personal decisions for you, like your health care matters and choices. And you may or may not need a guardian of your property. Who will manage your money and pay your bills and insure that your service providers, care workers, prescription drugs and medical bills are paid? And, just who is going to be your guardian?

The third way to stop a guardianship is by or through lesser restrictive alternatives that adequately address your needs. What does THAT mean? Is that legal mumbo jumbo used by some Florida guardianship attorney? Indeed. It’s straight from the Florida Guardianship Code, which you can read here. Well, if you are incompetent, you need someone to look out for you, to protect you and safeguard your property and money, right? Who will that be? Well, even if you need a guardian, you may not, well, need one. What? If you have a Florida estate plan where you already made those choices, why have a guardian? Did you create a revocable living trust? If so, your successor trustee can safeguard your money and property. Have a power of attorney? Super ! Your POA can transfer property to your trustee, who will account for it and distribute money for your benefit. Did you sign health care documents like a living will or health care surrogate or proxy, or a medical power of attorney? If you have those estate plan documents in place, if you made those choices while you were competent, a probate court is required to address those documents and therefore you may not need a guardian after all.

As you can tell, Florida guardianship is serious business. It involves your human rights and civil liberties. Can someone really go into court and say that you are not competent and ask a judge to put someone in charge of your life? Indeed. That happens everyday in Florida. That’s guardianship law Florida. And when families fight, that’s called guardianship litigation Florida.

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