Sometimes even a well-crafted estate plan and a close-knit family are not enough to address the needs of our loved ones who are no longer able to independently care for themselves. No matter how much foresight our loved ones have and how much love and care their families and friends can provide, there are situations in which a guardianship may be the only way to protect their rights and secure their finances.
Unfortunately, litigation can arise in guardianship matters as they do in probate and trust matters. The Boca Raton litigation attorneys of Ellis Law Group know the Guardianship Law well and are intimately familiar with the statutes and procedures which apply in guardianship matters.
Is Guardianship Necessary?
One of the public policies that our guardianship system is designed to serve is to ensure that the least restrictive alternative is implemented. This means that a court cannot appoint a guardian if there is an alternative which will sufficiently address the needs of an incapacitated person. Often these alternatives include one or more of a power of attorney, health care surrogate, or a revocable trust.
In some cases, an individual or entity petitions for the appointment of a guardian in cases where guardianship is not necessary either because the person is not incapacitated or because there is an alternative option that is less restrictive than a guardianship. It is important to understand that when guardianship is sought, the only persons who are entitled to notice of the proceedings are the alleged incapacitated person and next of kin. If the person(s) who would ultimately constitute the “alternative” to guardianship do not fit this description, notice might not be provided before guardianship proceedings commence.
Because guardianship proceedings tend to move quickly, acting with urgency to protect the needs of an alleged incapacitated person is of the utmost importance. This is particularly true in cases where it is believed that guardianship is not required or necessary.
Who Should be Guardian?
After the court determines that guardianship is necessary, it is not uncommon for disputes to arise regarding the appointment of the guardian.
First and foremost, a court will look to see if the ward has executed a valid preneed guardian designation naming the person or persons who should serve as guardian(s). Assuming no such document was executed, the court will be called upon to determine who is best qualified to serve as the ward’s guardian. Florida law gives preference to persons who are related to the ward by blood or marriage, who have relevant educational or professional experience. In addition, courts are instructed to consider the wishes of the ward or, if the ward cannot express a preference, the wishes of the ward’s next of kin.
These proceedings can be costly and understanding how courts resolve these types of disputes can be very valuable when decide whether, and to what extent, to intervene in a guardianship matter.
Breach of Duty and Abuse of Power
Like a personal representative or trustee, a guardian is a fiduciary. However, unlike a personal representative or trustee, a guardian’s powers are defined and limited by court order. A guardian is only empowered to exercise those rights which the court has determined the ward is unable to exercise. In addition, our statutes define what a guardian can and cannot do without court approval.
One of the guardian’s primary duties as fiduciary is the duty to account on an annual basis. When the accounting is filed and furnished to the ward and other persons entitled to a copy, the accounting may reveal impropriety by the guardian such as poor financial management, waste, or even theft of assets. When a guardian breaches its duty to the ward, the court has broad discretion to redress such breach and may order the removal of the guardian and may hold the guardian personally liable for any damages the ward sustains.
Interpreting and digesting the actions and decisions of a guardian is often a complicated process made more complex by the emotional toll that our concern for our loved ones takes on us. It is critical in evaluating a guardian’s conduct to assess the situation from a cerebral and objective viewpoint to determine whether something actionable has taken place.
The Boca Raton attorneys of Ellis Law Group have a wealth of experience in all types of guardianship matters, including litigated and adversarial proceedings. We understand the inherent emotional component these matters invariably have and we take that knowledge and experience into account in striving to craft cost-effective solutions that best protect you and your loved ones.