Florida Guardianship Litigation
Florida guardianship litigation often involves family members litigating against other family members in heated disputes. I have experience in guardianship litigation in the following areas.
Incapacity Proceedings. Under Florida law, when a petition for incapacity is filed, the guardianship court will appoint a three member panel to examine the alleged incapacitated person. Typically the persons appointed include a medical doctor in the area of psychiatry, a psychologist, and a lay person. If two of the three persons find the alleged incapacitated person to be incapacitated, the guardianship court will have a hearing on incapacity. The guardianship court will appoint an attorney to represent the alleged incapacitated person. The alleged incapacitated person has the right to hire their own attorney to defend against the incapacity proceeding.
Appointment of Guardian. If the guardianship court finds the person to be incapacitated, the court will determine whether a guardianship is needed. The court is required to determine whether there is a “less restrictive alternative” to a guardianship. For example, if the incapacitated person already has their assets in a trust, and also has a health care directive in place along with a durable power of attorney, the court might not appoint a guardian.
Choice of Guardian. If the court finds that the appointment of a guardian is necessary, the guardianship court will appoint a guardian. If one able family member applies for the position, that person is likely appointed. If more than one person applies, the guardianship court will hold an evidentiary hearing to determine the most appropriate person to appoint. In such disputes, there are often allegations of financial abuse and self dealing directed towards each of the family members. In extreme cases of family disfunction, the guardianship judge may appoint a professional guardian.
Guardianship Accounting. A Florida guardian is required to file an annual accounting of the guardianship finances. Many guardians struggle to properly and accurately report their activities, and some engage in acts of self dealing and theft from guardianship accounts. A family member or the court can pursue the improper acts of a guardian. The guardianship court can also appoint a court monitor to determine whether the guardian is properly carrying out the duties required of the guardian.
Removal of Florida Guardian. If a Florida guardian has performed poorly, the court on its own ar at the request of a family member can hold a hearing to determine whether the guardian should be removed. Grounds for removal include lack of proper care of the ward, financial self dealing, theft, lack of proper accountings, and lack of compliance with court orders.
Request for Authority to Act. Guardians are empowered, on their own, to engage in the day to day care and maintenance of the ward. If the guardian wants or needs to do something else, permission from the guardianship court is often required. For example, the guardian will need permission to sell the real estate of the ward and to enter into contracts. These actions can be challenged if appropriate.
Please contact me, Jeffrey Skatoff, to discuss your guardianship litigation issues, at (561) 842-4868.