SARASOTA HERALD TRIBUNE ARTICLE
RECENT COURT RULINGS
Although the Florida guardianship administration process is focused on protecting the interests of any individual alleged to be incapacitated, the determination of guardianship is often an adversarial one. When an individual may be denied his or her rights, and where another may be charged with representing those rights, family conflicts and concerns will inevitably arise. The most common guardianship litigation areas are: (1) contesting incapacity; (2) use of less restrictive alternatives; (3) disputes over who should be appointed the guardian; and (4) allegations of mismanagement by an appointed guardian.
During an incapacitation hearing, any allegedly incapacitated person is entitled to have an attorney appointed by the court to represent him or her, or may hire an attorney of their own. Their attorney may contest incapacity by seeking to show that the individual is capable of handling his or her own affairs, or may argue that the petitioner seeking to impose a guardianship is acting under ulterior motives, such as financial gain, and not in the best interests of the allegedly incapacitated individual.
USE OF LESS RESTRICTIVE ALTERNATIVES:
Florida law requires that the courts use the “least restrictive means” possible in protecting a person who may be incapable of taking care of themselves. Guardianships are considered to be highly restrictive and guardianship litigation may also be used to argue for a less restrictive option (use of an existing Power of Attorney or Health Care Surrogate). Despite Florida law, many Judges are still inclined to appoint a guardian. To protect their financial assets it is highly recommended that every individual establish a Revocable Trust and transfer ownership of their assets to it. This will prevent the assets from being dissipated or controlled by a guardian whom you have not selected.
However, the filing of a "verified statement" can preclude their utilization as a less restrictive alternative (since it calls the estate planning documents into question). As a result, aFlorida trial court will be prohibited from considering the documents as an alternative to guardianship. Searle v. Bent.
WHO SHOULD BE THE GUARDIAN:
Once incapacity is determined the court must either allow for the utilization of less restrictive alternatives, if any, or appoint a guardian of the person and property. The court's will first inquire as to the existence of a "Pre-Need Guardianship Designation" (the incapacitated individual's selection of who they want as their guardian). Under Florida law, family members have preference in appointment. However, the Judge has the ultimate discretion to appoint any qualified individual or professional guardian they may select. Many families fight over who should be the guardian and in control of the individual's well being and financial assets.
REMOVAL OF A GUARDIAN:
Appointed guardians are responsible to the court and are required to provide annual reports accounting for all of their actions. Where a guardian fails to carry out his or her duties and responsibilities, litigation may ensue in order to remove and/or sanction the guardian. Under such circumstances, a guardian is often alleged to have breached his or her fiduciary duty. Breach of fiduciary duty litigation can be very difficult and time consuming, so it is important to retain a qualified Florida guardianship attorney if you believe the rights and interests of an incapacitated family member are being mismanaged.
I am dedicated to representing your interests during Sarasota or Manatee County Florida Guardianship Litigation proceedings. Whether you are defending a petition to determine incapacity or are the victim of an improper guardianship action, I understand that guardianship can be contentious, and can provide you with the experienced advocacy that you deserve.
SARASOTA GUARDIANSHIP LITIGATION
Guardianship litigation involves disputes among family members or other interested persons in the life of an elderly or vulnerable adult. Contested guardianship cases include petitioning for the appointment of a guardian, opposing the appointment of a guardian, seeking the removal of a guardian because of financial abuse, emotional abuse or failure to properly care for the Ward, and recovering damages from a guardian who has hurt the Ward or allowed injury to occur to them. A guardianship proceeding is also a tool that can be used to prevent exploitation of the elderly. The commencement of a Florida Guardianship proceeding can interfere with an elderly individual's best laid plans (existing Power of Attorney, Health Care Surrogate and even Living Will).