Guardianship Litigation

When faced with the difficult reality that a family member or other loved one is unable to make day-to-day decisions for themselves or requires oversight of their affairs, trust The Ansara Law Firm’s Fort Lauderdale guardianship litigation lawyers to help you establish guardianship.

Guardianship can be an important means of protecting someone from abuse, neglect or exploitation.

As defined by Florida Courts and in F.S. 744.102(9), a guardian is a surrogate decision-maker who is appointed by the court to either make personal or financial decisions for and act on behalf of someone who is either a minor or an adult with mental or physical disabilities. Following adjudication of the guardianship, the subject is thereafter referred to as a “ward.”

The ultimate goal is to act in the best interest of the subject ward of the guardianship. Legislators and courts recognize the establishment of a guardianship creates a power imbalance – which may be necessary to protect the ward – but it is also subject to restriction and oversight.

There are many situations wherein a guardianship may be necessitated, but the courts don’t take the decision lightly. You will need an experienced guardianship litigation attorney in the Fort Lauderdale area to help secure your position as a guardian in the best interest of your loved one.

Child guardianship may be sought when:

• A child’s parents die or become incapacitated;
• Child receives an inheritance or proceeds of a lawsuit or insurance policy, exceeding amount allowed by statute.

Adult guardianship may be sought when the court deems the individual unable to make decisions, so the court gives that right to another. Some questions the court may want answered before deciding:

• Does the individual understand decisions need to be made?

• Does the person understand his/ her options in decision-making?
• Does the person understand potential consequences of decision-making?
• Can the individual direct the decision to appropriate parties?

Some examples might include:

• Adult who is committed involuntarily to a psychiatric ward under the Baker Act.
• An adult who is repeatedly committed for treatment at a facility for alcohol abuse under the Marchman Act.
• An adult who is being financially exploited financially.
• An adult who is mentally/ physically disabled and has shown an inability to meet their own basic needs or manage their own basic finances.

It should be noted that anyone over 18 is legally presumed to be competent to make his or her own decisions, and that doesn’t automatically change just because a person has a disability, diagnosis of a serious condition or made a few poor judgment calls.

Types of Guardianships in Florida

Our Fort Lauderdale guardianship litigation attorneys are familiar with each of the following types of guardianships.

A limited guardianship, per F.S. 744.102(9)(a) involves guardian who is appointed by the court to exercise legal rights and powers specifically designed by the court after the court has deemed an individual incapable of doing some – but not all – tasks necessary to care for his/ her person or property OR after the subject ward has voluntarily petitioned for the appointment of a limited guardian.

A plenary guardianship, meanwhile, is outlined in F.S. 744.102(9)(b), and involves a guardian who is appointed to exercise all legal rights and powers of a ward after the court has deemed the ward incapable of performing all tasks necessary to care for his/ her person or property.

Guardian at litem is another designation, as outlined in F.S. 744.102(10) which authorizes an individual to have guardianship in a particular legal matter that is pending. This often arises in family court cases, particularly when abuse or neglect is alleged.

There is also a designation for guardian advocate, as defined in F.S. 744.102(11). This is an individual appointed by written order to represent someone with developmental disabilities.

These are the most common types of guardianship in Florida courts, but others may include:

• Preneed guardian – a person named in a written declaration to serve as guardian in the event declarant is deemed incapacitated;
• Standby guardian – a person empowered to assume duties of guardianship upon death/ adjudication of incapacity of last surviving natural or appointed guardian;
• Foreign guardian – Guardian appointed in another state or country;
• Professional guardian – Guardian who has at any time rendered services to three or more wards to their guardian (except for someone acting as guardian for their relatives). This is an individual who is educated, registered and regulated to serve as a guardian to others;

The law favors the most restrictive form of guardianship where possible, but all adult and minor guardianships are subject to oversight from the court.

Rights Restricted/ Retained Under Guardianship

Once guardianship is granted, certain rights of the ward are transferred to the guardian. Others are retained, despite the designation of the ward as being “totally incapacitated.” These are outlined in F.S. 744.3125.

For example, a person who is incapacitated has the right to expect to:

• Have a qualified guardian;
• Be treated humanely with respect and dignity and to be protected against abuse, neglect and exploitation;
• Have an annual review of the guardianship report and plan;
• Remain as independent as possible;
• Be properly educated;
• Have privacy;
• Receive prudent financial management of his/ her property;
• Have access to the courts;
• Receive/ communicate with visitors;
• Have notice of all proceedings relating to the guardianship or their own capacity.

But guardianship also does restrict certain rights. Those that may be removed from a person, but not necessarily given to the guardian include the right to:

• Vote;
• Travel;
• Seek/ retain employment;
• Marry (could be subject to court approval);
• Have a driver’s license;
• Personally apply for government benefits.

Rights that are transferred from ward to guardian are:

• Enter into a contract;
• Sue/ defend lawsuits;
• Manage property;
• Make a gift of property;
• Determine his/ her residence;
• Consent to medical and mental health treatment;
• Make decisions about this/ her social environment or other social aspects of his/ her life.

If you are exploring your legal options as far as guardianship, the guardianship litigation lawyers at our Fort Lauderdale firm can help answer your questions and explain the process.

Contact Fort Lauderdale Lawyers at The Ansara Law Firm at (954) 761-3641 or by email. Serving Broward, Miami-Dade and Palm Beach Counties.

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