Florida Probate, Trust & Guardianship Litigation

How to Obtain Guardianship Over Parent Florida

A parent starts making bad decisions, such as giving large sums of money away, refusing to take medication, and kicking out home health care aides.  Such behavior is often accompanied by the parent “turning” on those persons in the family who have been the most responsible and caring.  Do you need to know how to obtain guardianship over your parent in Florida right away?

In Florida, guardianship law can provide the answers; however, guardianships are expensive, open to public scrutiny, and might not work.  What are the complete list of options, including obtaining a guardianship over the parent?

Power Of Attorney

By far the best option, in terms of ease and low cost, is to have in place powers of attorney and similar documents.

A durable power of attorney allows a child of a senior parent to take control of the senior parent’s finances – such as paying bills, obtaining access to financial information, and re titling accounts so that the money cannot be easily given away.

A health care proxy, also known as a medical power of attorney, allows the child to make medical decisions on behalf of the parent.

Can a Power of Attorney Go Wrong?

Powers of attorney are not perfect.  As an initial matter, if the parent has not executed the power of attorney documents prior to the bad behavior, it may be too late to create the documents – either because the parent is too far gone to have enough competency to sign the documents, or because the parent refuses to sign the documents.

The parent can also revoke the power of attorney – a common problem where a wrongdoer (such as an exploitative child or neighbor) has the confused parent revoke the power of attorney. Even worse, the wrongdoer might have the parent execute new power of attorney documents.

When Is Guardianship The Best Option?

If the parent cannot be brought under control, and the power of attorney option does not work, a guardianship can be the best option.  In order for the guardianship to work, advance fact-finding and evidence gathering is necessary.

Obtaining a guardianship over a parent who is capable of acting normally is challenging.  Nevertheless, skilled guardianship counsel should be able to demonstrate to the guardianship court that the parent is truly suffering and making poor decisions that are negatively impacting the parent’s health and/or finances.

How to Obtain Guardianship Over the Parent in Florida

File the Petition for Guardianship and the Petition for Incapacity

The first step is for the child to file the petition for guardianship and the petition for incapacity.

The Examining Committee

Once the petition for incapacity is filed, the Florida guardianship court will appoint a three person examining committee to examine the alleged incapacitated person.

The examining committee is typically made up of a medical doctor, psychologist, and a lay person.  These examining committee members will examine the alleged incapacitated person, in person, to determine whether the person is incapacitated and whether a guardianship is necessary.

If two or three members of the examining committee determine that the person is incapacitated, the guardianship proceedings continue.  If two or three guardianship examining committee members determine that the person is not incapacitated, the guardianship case is halted and the petition for incapacity (along with the petition for guardianship) is dismissed.
If at least two committee members determine incapacity, case continues.

Trial on Capacity

At the trial, the petitioner who filed the guardianship petition, a next of kin, or interested person may present witnesses and evidence as to whether the alleged incapacitated person is in fact incapacitated.  An expert witness on the alleged incapacitated person’s mental state is permissible.

If the parent is capable of presenting well and there is doubt about the parent’s lack of capacity, evidence of the bad decisions must be brought forward.  In a common case, the parent is gifting large sums of money to an exploitative child, and will deny such behavior.  It would be critical to present the actual evidence of the gifting – especially where the gifting is putting in jeopardy the finances of the parent.

Lesser Restrictive Alternative?

If the guardianship court makes an evidentiary finding of incapacity, the next step in the proceedings is a hearing on whether a guardianship is necessary.  The hearing on whether a guardian will be appointed, and if so who, may take place at the incapacity hearing, or it may take place at a subsequent hearing.

If the incapacitated person has power of attorney documents in place, the guardianship court might defer to those arrangements.  If the persons with the power of attorney are exploiting their position, it will be critical to prove to the guardianship court that the powers of attorney should be canceled and a guardianship put in place instead.


If the guardianship court believes that a guardianship is necessary, the guardianship court will then, at this point, appoint the person designated in a pre-need designation or appoint another person to serve as guardian, which can be a family member or professional guardian.

The guardian is required to retain the service of a guardianship lawyer at all stages of the proceedings, so that the requirements of a guardian can be met.  To learn more about guardianship, read Florida Guardianship Questions and Answers.

Before you implement these lessons for how to obtain a guardianship in Florida, consider whether other, less restrictive options are available.

Oral Argument at 5th District Court of Appeals

Florida Probate Attorney Jeffrey Skatoff Arguing in Court

Jeffrey Skatoff

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(561) 842-4868


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