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Florida 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.  Much Florida Guardianship Litigation occurs at the inception of a guardianship when an alleged incapacitated person wants to fight against imposition of guardianship.  Some examples of when this scenario may occur:

  • An adult has been involuntarily committed (Baker Act) to a psychiatric ward because he has threatened to commit suicide.  The individual's sister is concerned that when he is discharged he may be a harm to himself and petitions the court for a guardianship so she can make decisions for him until such time as he is no longer a threat.
  • An adult is repeatedly committed to a treatment facility for alcohol abuse (Marchman Act).  The individual's parent is concerned that the adult child is incapable, due to chronic alcohol abuse, to manage her affairs and petitions the court for a guardianship so he can make decision for his child until such time as she is no longer abusing alcohol.
  • An adult child who lives out of state visits her mother to find that the home healthcare worker is taking the mother to the casino at night and numerous checks for "cash" are written from mother's bank account. The adult child may petition for guardianship to protect the mother from exploitation.

While all of these scenarios sound reasonable, the adult may have no interest in being a Ward of the state and is within his/her rights to fight a guardianship by retaining a lawyer.  Sometimes, the person seeking to impose a guardianship is not simply looking out for the best interest of the Ward but is instead trying to gain some advantage by seeking to have the person determined incapacitated.  For example, the person may file a Petition to Determine Incapacity to prevent someone from making any changes to his estate planning documents or in retaliation for taking some action against the individual.

So while some Florida Guardianship Litigation takes place at the time of the Petition to Determine Incapacity, other litigation ensues later.  A guardian must act with what has been called “the punctilio of honor” in the performance of his/her duties toward the ward.  In an attempt to ensure 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.  Violation of any of these duties can result in litigation for breach of fiduciary duty and for removal of guardian.

The Strategic Importance of “Less Restrictive Alternative Means”

Guardianship is personally intrusive and expensive.  Sometimes, guardianship results 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.  Fighting that proceeding involves guardianship litigation. 

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.

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 a guardian 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 questions regarding how a lawyer experienced in Florida Guardianship Litigation might be of assistance in your particular circumstance, please feel free to contact the Law Offices of Adrian Philip Thomas, P.A. to schedule a free initial consultation with one of our attorneys.


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