Guardianship Litigation


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 the appointment of a guardian may be the only way to protect their rights and secure their finances. Unfortunately, disputes can arise in guardianship matters, just as they often do during the probate and trust administration processes. The Boca Raton guardianship litigation attorneys of Ellis Law Group know Florida’s guardianship laws well and are intimately familiar with the unique and complex procedures that apply in guardianship matters.


One of the public policies that our guardianship system is designed to serve is to ensure that the least-restrictive alternative is implemented when an individual is no longer able to make independent decisions about his or her finances or health care needs. This means that the Florida courts cannot appoint a guardian if there is an alternative that will sufficiently address the needs of an incapacitated person without the loss of autonomy that guardianship entails. Often these alternatives include one or more of a power of attorney, health care surrogate, or 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 that is less restrictive than 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 his or her next of kin. If the person(s) who wish to pursue an alternative to guardianship are not next of kin, they may not receive notice 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.


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 alleged incapacitated person (who is referred to as a “ward”) has executed a valid preneed guardian designation naming the person or persons who should serve as guardian(s). If no such document exists, the court will need 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, as well as those who have relevant educational or professional experience. In addition, the Florida 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.

Proceedings involving the appointment of a guardian can be costly, and understanding how Florida’s courts resolve disputes during these proceedings can be very valuable when deciding whether, and to what extent, to intervene in a request for the appointment of a guardian. We represent spouses, adult children, parents, and other interested parties in all types of guardianship disputes, and we work to achieve amicable and cost-effective resolutions that protect our clients and their loved ones by the least-restrictive means possible. This includes handling matters such as:  

  • Disagreements regarding whether the appointment of a guardian is necessary (i.e. whether the individual for whom guardianship is sought is legally incapacitated)
  • Disagreements regarding what constitutes the least-restrictive means based on the circumstances at hand
  • Disagreements regarding who should be appointed as the ward’s guardian
  • Challenges to petitions for guardianship
  • Competing petitions for guardianship (i.e. if two family members separately petition to be appointed guardian of a loved one)


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, Florida’s statutes specify what a guardian can and cannot do without court approval—even within the confines of the guardianship order.

One of the guardian’s primary duties as fiduciary is the duty to account on an annual basis. When the annual 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 his or her fiduciary duty to the ward, the court has broad discretion to remedy the breach, order the removal of the guardian, and hold the guardian personally liable for any damages the ward sustains.

Evaluating the actions and decisions of a guardian is a complicated process that is often made even more challenging by the emotional aspects that are inherent in guardianship matters. It is critical in evaluating a guardian’s conduct to assess the situation from an objective viewpoint to determine whether the guardian has violated one of his or her duties such that legal action is appropriate. In addition to handling disputes arising during the process of seeking the appointment of a guardian, we represent clients in litigation arising after the appointment of a guardian as well. Some examples of the types of issues that tend to lead to guardianship-related litigation include:

  • Allegations of breach of the guardian’s fiduciary duty to the ward
  • Allegations of theft and financial mismanagement
  • Failure to prepare an annual accounting, fraudulent accounting, and other similar types of issues
  • Allegations of making healthcare-related decisions that do not reflect the ward’s wishes or best interests
  • Petitions for the removal or replacement of a guardian


If an issue arises in relation to the appointment of a guardian or the actions of a guardian who has already been appointed, it is imperative that the appropriate individuals seek relief promptly. In many cases, not only can acting quickly minimize the costs of litigation (and potentially lead to a favorable pre-litigation result), but it can minimize the consequences for the alleged incapacitated person or ward as well.

In order to determine who can file suit to initiate guardianship litigation, it is first necessary to examine the specific facts and circumstances involved. What is the current status of the guardianship (has a petition been filed, or has a guardian already been appointed)? What is the specific issue at hand? What family member(s) are involved or may need to be involved? These are all questions that will need to be answered before next steps can be determined.


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 that these matters invariably have, and we take this into account when craft cost-effective solutions that best protect our clients and their loved ones.

If you have questions or concerns about guardianship in Florida, we encourage you to get in touch. To speak with a Boca Raton guardianship litigation attorney at Ellis Law Group in confidence, please call 561-475-3848 or contact us online today. 

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