Guardianship Litigation

Florida Guardianship Litigation

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Under Florida law, an individual can be placed under the care and control of a “guardian” if certain legal criteria can be established. Guardianship litigation usually occurs at the inception of a guardianship when an alleged incapacitated person wants to fight against the imposition of guardianship.

Examples of when guardianship litigation is necessary includes:

  • An adult has been involuntarily committed to a psychiatric ward because they threatened to commit suicide. The individual's sibling is concerned that when the individual is discharged, they might be a harm themselves, so the sibling petitions the court for guardianship so they can make decisions for the individual until they are no longer a threat.
  • An adult is repeatedly committed to a treatment facility for alcohol abuse. The individual's parent is concerned that the adult child is incapable, due to chronic alcohol abuse, to manage their own affairs, so the parent petitions the court for guardianship to make decisions for the child until they stop abusing alcohol.
  • An adult child who lives out of state visits their 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 the mother's bank account. The adult child can petition for guardianship to protect the mother from exploitation.

While all of these scenarios sound reasonable, the adult might have no interest in being a ward of the state, which is why it is within their rights to fight a guardianship by retaining a lawyer.

What Are the Duties of a Guardian?

A guardian must act with what has been called “the punctilio of honor” in the performance of their 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 removal of the guardian.

“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 and has already done their property estate planning, then the court is legally bound to choose the “least restrictive alternative means.”

However, “least restrictive alternative means” are not what they seem. For example, when an incapacitated person has a revocable trust that holds their assets and a health care surrogate to make medical decisions on their behalf, then guardianship might not be necessary. An aggressive probate trial lawyer at Adrian Philip Thomas, P.A. can protect this person from the unnecessary time, expense, and intrusion of an appointed guardian.

What Is Breach of Fiduciary Duty?

As described above, a guardian has certain duties and responsibilities that are defined in F.S. §744.361-462. Unfortunately, guardians can fail to meet the high standards of honor and dedication that the law places upon them. If a guardian fails to comply with these duties, they can be sanctioned or removed by the court. Breach of fiduciary duty litigation can be time consuming and expensive. Nevertheless, litigating these cases is crucial when a guardian has succumbed to greed and avarice and takes advantage of their fiduciary role to steal significant sums from an unsuspecting and vulnerable ward.

Consult with Our Florida Guardianship Litigators Today

If you have more questions about how our dedicated and experienced Florida guardianship litigators can assist with your particular circumstance, then please feel free to get in touch with our legal team at Adrian Philip Thomas, P.A. so we can use our extensive legal resources to help you pursue justice.

To schedule a free initial consultation with one of the attorneys at our Fort Lauderdale office, please call (800) 776-3103 or contact us online.

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