Guardianship is the legal process of appointing a person to make decisions and handle the affairs of someone who cannot do so for themselves. Typically, this occurs when an elderly family member needs help managing their finances and everyday responsibilities. This person is referred to as a “ward,” while the person managing their affairs is the “guardian.” When there are disagreements about establishing or maintaining guardianship, the case may go through guardianship litigation. Here is what you should know about guardianship litigation.
What is guardianship litigation?
Guardianship litigation, or “contested” guardianship, is when two or more parties disagree about the aspects of an intended or established guardianship, such as selecting a guardian, changing a current guardian, or whether a guardian is needed.
Common guardianship litigation scenarios
As experienced elder law attorneys, our team at the Law Office of Brian W. Hurd sees several common scenarios regarding guardianship. If you or a family member are in this situation, it is time to contact an attorney to ensure an amicable outcome for everyone involved.
One of the most common reasons guardianship cases enter litigation is for determining whether someone needs a guardian. For guardianship to be established, a committee must prove that the intended ward cannot handle their affairs. The intended ward or other parties may contest that guardianship is not necessary.
Guardian appointment litigation occurs when there are disagreements over who should become someone’s guardian. More than one person may become a guardian in Florida, which can make choosing a guardian more complex.
Guardianships can be brought to court once they are in place if someone believes the guardian is not adequately caring for the ward. In this case, an interested party may file a petition to change the guardian.
Guardians have fiduciary relationships with their wards, meaning they are legally obligated to act on behalf of their ward’s best interests. Unfortunately, this does not always occur, and guardians may attempt to exploit the ward for financial or personal gain. Guardianship litigation could help recover misused funds from bank accounts or stolen property if it is determined the guardian breached their fiduciary responsibilities.
Process of determining guardianship
Chapter 744 of the Florida Statutes oversees the process of appointing a legal guardian. The first step is to file a petition for guardianship. Then, the intended ward’s capacity will be determined by an examining committee within five days after the petition is presented to the court. The committee comprises three individuals, including at least one physician or a psychiatrist. The committee will notate their findings and present them to the judge in a report, providing recommendations about which rights the intended ward should or should not be able to handle. Then, a hearing will be set within two weeks after the examining committee presents their report to determine capacity.
If the judge determines that the intended ward is incapacitated, a guardian will be appointed to oversee those affairs. Blood relatives and spouses are given preference when choosing a guardian; however, anyone deemed fit can become a guardian, even if they are not related to the intended ward. Non-Florida residents must be related to the ward to become their guardians. Guardians cannot have committed a felony.
Merritt Island Elder Law Attorney: Brian W. Hurd
Brian W. Hurd is a reputable elder law attorney who helps clients with matters regarding guardianships and estate planning. We serve clients in Merritt Island and throughout Central Florida. Call us today at 321-453-5007 to discuss your case.