- Guardianship Litigation
- Guardianship Administration in Florida
- Guardianship for Minors in Florida
- How to Stop a Guardianship in Florida
How Does a Guardianship Proceed
When a guardianship petition is filed by the petitioner (operating through a guardianship lawyer), it is part of a two step process: the petition for guardianship, and the petition for incapacity. Once the petition for incapacity is filed, the guardianship court will appoint a three person panel to examine the proposed incapacitated person. The panel is typically made up of a medical doctor (physician), psychologist, and a lay person. These committee members will examine the proposed incapacitated person, in person, to determine whether the person is incapacitated and whether a guardian is necessary. If two or three members of the committee determine that the person is incapacitated, the proceedings continue. If two or three guardianship committee members determine that the person is not incapacitated, the guardianship proceedings are halted and the petition for incapacity (along with the petition for guardianship) is dismissed.
If at least two committee members determine incapacity, the incapacity proceedings continue. The guardianship court will appoint a guardianship attorney to represent the alleged incapacitated person. Instead of using the court appointed guardianship attorney, the alleged incapacitated person has the right to have a different attorney represent them at the trial.
The next step is the trial on incapacity. 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 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 put in place documents in advance, it might be possible to avoid the appointment of a guardian, even if incapacity has been found. These documents include the creation and funding of a revocable living trust, the creation of a durable power of attorney, and the creation of a health care proxy. If there are such less restrictive means to having a guardian appointed, the guardianship court is required to implement these less restrictive means instead of the guardianship.
If the guardianship court decides that the appointment of a guardian is necessary (i.e., incapacity and no less restrictive alternative to a guardianship), the court is next required to determine whether a preneed guardianship designation is in place. The preneed guardianship designation is a document that names a person to serve as guardian in the event one is needed.
The guardianship court will then, at this point, appoint the person designated or appoint another person to serve as guardian, which can be a family member of 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.
Jeffrey Skatoff is a Florida guardianship lawyer who handles contested and uncontested guardianship matters throughout the State of Florida.