When someone you care about can no longer safely make important personal, medical, or financial decisions, determining what to do next can be difficult.

Does your parent actually need a guardian? Is a durable power of attorney or trust enough? Is someone misusing your loved one’s money? Is immediate court intervention necessary? What happens when family members disagree about who should make decisions?

At The Gigele Law Firm, our attorneys represent families, individuals, guardians, and other interested parties in Florida guardianship and incapacity proceedings. Located in Stuart, Florida, we assist clients throughout Martin County, St. Lucie County, Palm Beach County, and surrounding Florida communities.

Collectively, our attorneys bring more than 30 years of legal experience to the individuals and families we serve. Our guardianship practice encompasses everything from uncontested incapacity proceedings and ongoing guardianship administration to emergency proceedings, financial exploitation, fiduciary disputes, and contested guardianship litigation.

If you are concerned about a vulnerable family member or are already involved in a Florida guardianship proceeding, call The Gigele Law Firm at (772) 222-6548 to speak with one of our Florida guardianship attorneys.

What Is Guardianship in Florida?

Guardianship is a court-supervised legal relationship through which another person or qualified entity may be given authority to exercise certain rights for someone who lacks the ability to exercise those rights independently.

For an adult guardianship, there are generally two important questions:

First, what rights, if any, is the individual incapable of exercising?

Second, if assistance is necessary, is guardianship required or can a less restrictive alternative adequately address the problem?

Florida law requires courts to evaluate the individual’s unique needs and abilities and permits removal only of rights the court determines the individual lacks capacity to exercise. The court must also consider whether an alternative to guardianship is sufficient before appointing a guardian to exercise delegable rights.

This is important because needing assistance is not automatically the same as being legally incapacitated.

When Is Guardianship Necessary?

Guardianship proceedings frequently arise when someone is affected by:

  • Alzheimer’s disease or dementia;
  • significant cognitive decline;
  • stroke or traumatic brain injury;
  • serious mental illness;
  • developmental disabilities;
  • inability to safely manage financial affairs;
  • inability to make necessary healthcare or residential decisions;
  • financial exploitation;
  • undue influence;
  • misuse of a durable power of attorney; or
  • a sudden medical event resulting in incapacity.

The right solution depends upon the particular person’s abilities, available support, estate-planning documents, financial circumstances, and immediate needs.

Concerned About an Aging Parent?

Adult children are frequently the first people to notice that a parent’s ability to manage finances, healthcare, medications, housing, or personal safety is deteriorating.

Learn more about Guardianship of an Elderly Parent in Florida.

How Does Someone Get Declared Incapacitated in Florida?

An adult guardianship based upon incapacity ordinarily begins with the filing of a Petition to Determine Incapacity.

The alleged incapacitated person has significant procedural protections. Florida law requires appointment of an attorney, and a three-member examining committee evaluates the person’s ability to exercise the rights at issue. Each member performs an examination and submits a report to the court. Ultimately, incapacity must be established by clear and convincing evidence.

The court may remove only those rights the evidence establishes the person cannot exercise.

Learn more about Florida Incapacity Proceedings and Petitions to Determine Incapacity.

Emergency Guardianship in Florida

Some situations cannot safely wait for the ordinary guardianship process to unfold.

Florida law permits appointment of an Emergency Temporary Guardian, often called an ETG, when the statutory requirements are met and immediate action is necessary because there appears to be imminent danger of serious impairment to the person’s health or safety or danger that property will be wasted, misappropriated, or lost.

Emergency proceedings may arise when:

  • money is rapidly disappearing;
  • someone is exploiting a vulnerable adult;
  • a home or other significant asset is about to be transferred;
  • an agent under a power of attorney is allegedly abusing authority;
  • necessary medical treatment is being obstructed;
  • the individual is living in dangerous conditions; or
  • another immediate threat exists.

Learn more about Emergency Guardianship in Florida.

Contested Guardianship Proceedings

Not every guardianship is agreed upon.

Families may disagree over:

  • whether the individual is incapacitated;
  • which rights should be removed;
  • whether guardianship is necessary;
  • whether a power of attorney or trust is sufficient;
  • who should serve as guardian;
  • how assets should be managed;
  • medical care or residential placement;
  • alleged exploitation;
  • actions taken by an existing guardian; or
  • whether a guardian should be removed.

These cases can become sophisticated litigation involving medical evidence, financial records, estate-planning documents, witness testimony, discovery, fiduciary duties, and competing family interests.

Learn more about Contested Guardianship in Florida.

Power of Attorney Abuse and Financial Exploitation

A durable power of attorney can be one of the most effective alternatives to guardianship. It can also become a significant problem when the agent entrusted with authority is accused of abusing it.

Warning signs can include:

  • unexplained withdrawals;
  • transfers to the agent;
  • sudden changes in financial arrangements;
  • unusual gifts;
  • missing assets;
  • isolation of the principal;
  • sale or attempted sale of property;
  • refusal to provide financial information; or
  • transactions that appear to benefit the agent rather than the principal.

Florida law specifically addresses the suspension of power-of-attorney authority during incapacity proceedings under certain circumstances. Florida law also separately addresses exploitation of elderly persons and disabled adults, including certain breaches of fiduciary duties by agents under powers of attorney.

Learn more about Power of Attorney Abuse in Florida.

Limited and Plenary Guardianship

Florida guardianships are intended to reflect the individual’s actual abilities.

A limited guardianship may be appropriate when a person lacks the capacity to exercise some rights but remains capable of exercising others.

A plenary guardianship involves a much broader transfer of delegable rights.

The court’s focus should remain on the particular rights the individual can and cannot exercise and whether sufficient alternatives exist.

Guardian of the Person and Guardian of the Property

Guardianship authority is also commonly divided between personal and financial matters.

A guardian of the person may have responsibility for matters involving healthcare, residence, personal care, and support.

A guardian of the property may be responsible for financial accounts, investments, income, expenses, real property, business interests, and other assets.

One guardian may serve in both capacities or separate guardians may be appointed.

Guardianship Administration

Getting appointed guardian is only the beginning.

Florida guardianships remain subject to court supervision. Depending upon the authority granted, guardians may have obligations involving:

  • an initial guardianship plan;
  • a verified inventory;
  • annual guardianship plans;
  • annual accountings;
  • management of income and expenses;
  • investment and preservation of assets;
  • court approval for certain transactions;
  • residential and healthcare decisions; and
  • maintenance of supporting financial records.

Florida law generally requires an initial guardianship report within 60 days after letters of guardianship are signed, with the specific report depending upon whether the guardian has authority over the person or property. Guardians of property also have annual accounting responsibilities.

Learn more about Florida Guardianship Administration.

Removing or Replacing a Guardian

Guardians are fiduciaries and remain accountable to the court.

Florida law provides numerous statutory grounds for removal, including failure to discharge duties, abuse of authority, failure to comply with court orders, mismanagement of property, certain conflicts of interest, and other misconduct.

Learn more about Removing a Guardian in Florida.

Can Someone Regain Rights After Guardianship?

Yes.

Guardianship does not necessarily have to be permanent.

Florida law allows the ward or another interested person to file a Suggestion of Capacity asserting that the ward has regained the ability to exercise some or all rights previously removed. The restoration process includes appointment of a physician and may result in partial or complete restoration of rights.

Learn more about Restoration of Capacity in Florida.

Guardian Advocacy for Individuals With Developmental Disabilities

Florida also provides a separate guardian advocate procedure for certain individuals with developmental disabilities.

Unlike a traditional Chapter 744 incapacity guardianship, a guardian advocate may, when the statutory requirements are satisfied, be appointed without a formal adjudication of incapacity. The court must consider the individual’s unique needs and abilities and may delegate only those decision-making tasks the individual lacks the ability to exercise.

Learn more about Guardian Advocacy in Florida.

Why Choose The Gigele Law Firm?

Guardianship cases involve more than court forms.

They can require an understanding of:

  • contested litigation;
  • fiduciary duties;
  • trusts;
  • powers of attorney;
  • estate planning;
  • financial accounts;
  • investment assets;
  • real estate;
  • business interests;
  • healthcare decision-making; and
  • sensitive family relationships.

At The Gigele Law Firm, our attorneys bring more than 30 years of collective legal experience to these matters.

Our guardianship practice includes:

  • petitions to determine incapacity;
  • appointment of guardians;
  • emergency temporary guardianships;
  • contested guardianships;
  • guardianship administration;
  • power-of-attorney disputes;
  • financial exploitation matters;
  • disputes regarding proposed guardians;
  • annual plans and accountings;
  • significant guardianship transactions;
  • guardian removal and substitution;
  • restoration proceedings; and
  • discharge of guardians.

Our broader work in estate planning, probate, trusts, fiduciary litigation, and elder law also allows us to evaluate the issues surrounding the guardianship rather than viewing the case in isolation.

Speak With Florida Guardianship Attorneys

If you are concerned about an aging parent or vulnerable family member, believe financial exploitation may be occurring, need emergency intervention, are involved in a contested proceeding, or need assistance administering an existing guardianship, our attorneys can help you evaluate the appropriate next step.

The Gigele Law Firm is located in Stuart, Florida and serves clients throughout Martin County, St. Lucie County, Palm Beach County, and surrounding Florida communities.

Call (772) 222-6548 or contact The Gigele Law Firm online to speak with one of our Florida guardianship attorneys.