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ESTATE LITIGATION | PROBATE LITIGATION | TRUST LITIGATION | GUARDIANHIP LITIGATION | FLORIDA WRONGFUL DEATH

GUARDIANSHIP LITIGATION

Under Florida law, an individual can be placed under the care and control of another person, who acts as their “guardian” if certain legal criteria can be established.  That guardian must then act with what has been called “the punctilio of honor” in the performance of his/her duties toward the ward. 

In an attempt to insure that the guardian is well aware of the high level of responsibility that Florida law has placed upon them, Florida Statute §744.361 lists both the powers and the duties of a guardian in detail:

1)  The guardian of an incapacitated person may exercise only those rights that have been removed from the ward and delegated to the guardian. The guardian of a minor shall exercise the powers of a plenary guardian.

(2)  The guardian shall file an initial guardianship report in accordance with s. 744.362.

(3)  The guardian shall file a guardianship report annually in accordance with s. 744.367.

(4)  The guardian of the person shall implement the guardianship plan.

(5)  When two or more guardians have been appointed, the guardians shall consult with each other.

(6)  A guardian who is given authority over any property of the ward shall:

(a)  Protect and preserve the property and invest it prudently as provided in chapter 518, apply it as provided in s. 744.397, and account for it faithfully.

(b)  Perform all other duties required of him or her by law.

(c)  At the termination of the guardianship, deliver the property of the ward to the person lawfully entitled to it.

(7)  The guardian shall observe the standards in dealing with the guardianship property that would be observed by a prudent person dealing with the property of another, and, if the guardian has special skills or is named guardian on the basis of representations of special skills or expertise, he or she is under a duty to use those skills.

(8)  The guardian, if authorized by the court, shall take possession of all of the ward's property and of the rents, income, issues, and profits from it, whether accruing before or after the guardian's appointment, and of the proceeds arising from the sale, lease, or mortgage of the property or of any part. All of the property and the rents, income, issues, and profits from it are assets in the hands of the guardian for the payment of debts, taxes, claims, charges, and expenses of the guardianship and for the care, support, maintenance, and education of the ward or the ward's dependents, as provided for under the terms of the guardianship plan or by law.

(9)  A professional guardian must ensure that each of the guardian's wards is personally visited by the guardian or one of the guardian's professional staff at least once each calendar quarter. During the personal visit, the guardian or the guardian's professional staff person shall assess:

(a)  The ward's physical appearance and condition.

(b)  The appropriateness of the ward's current living situation.

(c)  The need for any additional services and the necessity for continuation of existing services, taking into consideration all aspects of social, psychological, educational, direct service, health, and personal care needs.

This subsection does not apply to a professional guardian who has been appointed only as guardian of the property.

Guardianships are established and monitored in the Florida courts

Guardianship proceedings are formal lawsuits that are filed in Florida state courts, and can be adversarial to the extent that a full judge and jury are involved, with appellate review of the trial’s ultimate determination.

1.  The Strategic Importance of “Less Restrictive Alternative Means”

Guardianships are personally intrusive and expensive.  Sometimes, guardianships result from lack of planning by the individual whose capacity is being challenged. However, even when a person has the proper estate planning documents in effect, someone can legally institute a guardianship proceeding.  

Probate trial lawyers and estate planning law firms can be hired to defend against an unwanted and unnecessary guardianship proceeding.  It is important for the parties fighting against a guardianship to be aware at every step of the proceedings that even if a person is found to be incapacitated, if he has done the property estate planning, the court is legally bound to chose the “least restrictive alternative means” if there are some available.

Sometimes “least restrictive alternative means” are not what they seem.  For example, when an incapacitated person has a revocable trust that holds his assets, together with a health care surrogate to allow an individual to make medical decisions on his behalf, even if the individual has severe dementia, a guardianship may not be necessary.  An aggressive probate trial lawyer can protect this person from the unnecessary time, expense, and intrusion of an appointed guardian.

2.  Breach of Fiduciary Duty

As described above, a guardian has certain duties and responsibilities that are defined in Florida law (Florida Statute §744.361-462). Unfortunately, guardians can fail to meet the high standards of honor and dedication that the law places upon them.  If the guardian fails to comply with these duties, he/she may be sanctioned or removed by the court. 

Breach of fiduciary duty litigation can be time consuming and expensive.  Nevertheless, some of these fiduciary duty cases are the most important that a court can hear when an evildoer has succumbed to greed and avarice, and taken advantage of their fiduciary role to steal significant sums from an unsuspecting and vulnerable ward.

If you have comments or questions regarding how a lawyer experienced in guardianship lawsuits at the Law Offices of Adrian Philip Thomas, P.A. might be of assistance in your particular circumstance, please feel free to contact the firm’s office to schedule a free initial consultation with one of our attorneys. 

At the Law Offices of Adrian Philip Thomas, P.A. we consider it an honor to be of assistance to you.