Guardianships are intrusive and financially burdensome on incapacitated persons and his/her family. Guardianships become necessary if the incapacitated person failed to implement proper estate planning prior to his/her incapacity. Advance directive documents, such as a Healthcare Surrogate and Durable Power of Attorney, serve as a least restrictive alternative to guardianship. When an incapacitated person fails to execute least restrictive alternatives, the filing of a petition to determine incapacity and the establishment of a guardianship becomes necessary to assist the individual with his/her personal and financial needs.
A Guardianship is established when it is determined that an individual lacks capacity to manage his/her own affairs. When a guardianship is ordered by a court, the individual that lacks capacity is called a ward of the court. When a guardian is appointed, that person assumes the rights of the ward to make decisions about many aspects of daily life.
The two most common types of guardianship are limited and plenary. In a limited guardianship the guardian assumes only the delegable rights specifically given by a court order. The ward keeps all other decision-making rights not specifically outlined by the court order. In a plenary guardianship, the guardian assumes all rights enumerated in Florida law that can be delegated.
Florida has specific laws governing guardianship proceedings, which are designed to protect the interests of the ward. A Florida guardian is accountable to the local court and must report annually on the status of the ward and account for all financial activity.
A guardian has certain duties and responsibilities which are specified under Florida law. Unfortunately, there are situations where an appointed guardian for a minor or incapacitated individual breaches, or fails to comply with, their fiduciary duties.
A guardian breaches his or her duties when they fail to perform the duties charged to them by the law or when they commit some act that is contrary to the best interests of the ward. The guardian’s duties generally include:
- Managing the ward’s assets in a prudent manner
- Monitoring the ward’s health and well-being
- Ensuring the ward has adequate food, shelter, clothing, social opportunities, and medical care
- Safeguarding the ward’s assets against theft and unnecessary depletion
- Conducting himself or herself generally in the ward’s best interests
When a breach occurs, a guardian may be sanctioned or removed as the guardian by the Court. A Court often will not be aware of a guardian’s misconduct until a family member or friend brings it to the Court’s attention.
Our attorneys have experience both bringing and defending guardianship litigation. These cases require seasoned litigators who understand the intricacies of Florida law.