Litigation with respect to guardianship issues can arise at different stages and for many different reasons. One of the most common scenarios is when at the inception of guardianship proceedings, the person who is alleged to be incapacitated disputes the contention that they are incapable of managing their own financial and/or personal affairs. Under these circumstances, a knowledgeable Florida guardianship attorney’s assistance is essential to obtaining a favorable resolution.
There are many situations in which an individual may petition the court to have a guardian appointed for another person against their will. These cases often involve an aging parent or grandparent. But it can also happen in other relationships and for a variety of reasons. For example, guardianship petitions may be brought:
In some, but not all, of these situations, and in others that may arise, even though an individual may firmly and sincerely believe that establishing a guardianship for someone else is necessary and warranted, the person for whom the guardianship is sought—or someone very close to that person—may strongly disagree that a guardianship should be established. When this happens, the guardianship proceedings can be challenged, and the challenging party has the right to have an attorney represent them in contesting the allegation of incapacity.
The person for whom the guardianship is being sought may seek to contest the guardianship on several grounds. He may believe that the person seeking the guardianship is doing so for improper reasons, such as to gain control of their finances, to prevent him from altering a will or other existing estate arrangements, or due to spite, ill-will, retaliation, or other improper motives. In cases where there is a legitimate impairment or disability, the prospective ward of the state may also object to the incapacity proceedings because some less intrusive mechanism is both available and more appropriate, and that guardianship can be rendered unnecessary through the execution of a durable power of attorney to a person of their choosing and/or through the execution of a medical directive, or through other steps such as the creation of a trust to manage their finances.
In addition to litigation contesting the establishment of a guardianship, there are other situations in which litigation is warranted in the context of guardianship.
In particular, because a guardian has a heightened fiduciary responsibility to the ward, situations may arise in which a ward or someone close to the ward believes that the guardian is violating one or more of their statutorily defined duties and responsibilities, whether that is as a result of mismanagement, incompetence, embezzlement, or any circumstance in which a guardian may be using their authority to benefit himself either directly or indirectly. When this happens, certain individuals may bring litigation for breach of fiduciary duty to a ward, which can lead to the removal and replacement of a guardian.
Making sure that a guardian is not acting improperly is a special concern to family members of a ward as probate court dockets become severely overcrowded. When courts are overworked, they can fail to monitor guardianships adequately or to carefully review the annual accounting documents that guardians are required by law to provide. Accordingly, more and more children, siblings, or parents of wards find that they cannot rely upon courts to police guardianships and make sure that wards are protected from the avarice or incompetence of a guardian.
Consequently, it may be necessary to pursue litigation to bring necessary attention to a guardian’s malfeasance and to have a guardian removed and replaced.
Litigation can always arise regarding who is appointed as a guardian. For example, where the parent of several children is deemed incapacitated, these family members may strenuously fight among themselves—and before the court—as to which of them is a more capable and trustworthy guardian for an aging parent, particularly if there is a sizable estate, or when there is existing contention between family members.
Careful and intelligent planning can help you, those you care about, and/or those who care about you to avoid the many problems and issues that can arise in establishing or managing of a guardianship. However, it is difficult to provide for every contingency. Even when you try to plan wisely, the prospect of guardianship may arise, and with it may come disputes that lead to litigation.
Guardianship proceedings and guardianship litigation are personally intrusive and expensive and can be very unpleasant, particularly when personal and private health, emotional, and family issues get aired in open court.
When this happens, the Miami guardianship attorneys at the law offices of Hertz • Sager can help you. We have extensive experience in every aspect of family law, including the complicated laws and regulations surrounding guardianships and guardianship proceedings, and we are very sensitive to the problems that can arise in guardianship litigation. If you need assistance, advice, or representation in litigation with respect to the inception or management of a guardianship, contact our office in CoralGables, Florida, at 305.444.3323, or use our online contact form.