Florida Trust Litigation

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GUARDIANSHIP LITIGATION

a) Less Restrictive Alternative Means – guardianships are personally intrusive and expensive. Sometimes guardianships result from lack of planning. Sometimes, even when a person has the proper estate planning documents in effect, someone institutes a guardianship proceeding. Law firms can be hired to defend against an unwanted and unnecessary guardianship proceeding. Even if a person is found to be incapacitated, if he has done the property estate planning, the court is bound to chose the “least restrictive alternative means” if there are some available. A good example is when an incapacitated person has a revocable trust that holds his assets and a health care surrogate to allow an individual to make medical decisions on his behalf. In that scenario, even if the individual has severe dementia, a guardianship may not be necessary.

b) Breach of Fiduciary Duty – a guardian has certain duties and responsibilities, which are set forth in Florida Statute §744.361-462. If the guardian fails to comply with those duties, he may be sanctioned or removed.