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Chepenik & Trushin LLP

Guardianship Litigation

As our loved ones get older, they may become less and less able to independently manage their own affairs. Florida has a large elderly population, and therefore a guardianship system is inevitably necessary to assist such persons in meeting the essential requirements for their health and safety, financial affairs, and protection of their rights. However, given the nature of guardianship matters, including the removal of all or some of the civil and legal rights of the Ward (i.e., the person subject to the guardianship), and the appointment of a third party to manage the Ward’s affairs, potential conflicts and litigation are always a possibility. The guardianship process can be lengthy and complex, and it is important to understand the system, especially in Miami and the greater South Florida area, by obtaining the advice of an experienced attorney.

A “guardian” is a person whom a court appoints to manage all or some of the financial and legal affairs of a Ward. Guardianships are often initiated when the Ward has not previously executed estate planning documents, including advance directives, that otherwise would allow a third party to manage the Ward’s affairs. Alternatively, the Ward may have previously executed advance directives (which may constitute a less restrictive alternative to a guardianship) but, for various reasons, allegations may surface in the guardianship that these documents are invalid. Chepenik Trushin has experience representing both those persons seeking a court determination that the advance directives are invalid and those persons asking the court to uphold the less restrictive alternative. This type of litigation must be addressed on a case by case basis and is very fact intensive. Florida Statutes have recently been revised to include greater protection for family members of the Ward who are the appointed fiduciary under the advance directives.

Sometimes, while the family and friends of the Ward may agree that the Ward is incapacitated, they do not agree on who should be appointed as the Ward’s guardian. Florida Statutes allow for there to be more than one guardian and also permit the appointment of different guardians for the person and the property of the Ward. Though the appointment of multiple guardians may sometimes be a suitable resolution to a dispute among the family and friends of the Ward, this resolution is often not a realistic when the parties involved do not get along with one another. Therefore, guardianship litigation often arises when multiple persons petition to become the sole guardian of the Ward, and the court must make a determination as who is best suited to become the guardian. The court also has the discretion to ultimately choose none of the petitioners and instead, appoint a professional guardian for the Ward. It is typical to see a situation where the person who primarily took care of the Ward prior to the guardianship proceedings petition the court to continue their role, and one or more other parties objecting to that person continuing his or her caretaking role. Those individuals objecting may allege improprieties in the caretaker’s prior actions, including but not limited to misappropriation of the Ward’s funds, sequestering of the Ward, mismanaging the Ward’s affairs, and influencing the Ward to change his or her estate plan.

Also, the Ward, himself or herself, may object to the initiation of guardianship proceedings. Upon the filing of a petition to determine incapacity, the court appoints a court-appointed attorney to represent the interests of the alleged incapacitated person (“AIP”). Though counsel has been appointed for the AIP, the AIP has a right to choose private counsel to represent him or her in the incapacity proceedings. The incapacity proceedings are often a quick process, as there are statutorily imposed deadlines involved, and therefore, if an AIP desires independent private counsel, it is important to contact an attorney as soon as possible to discuss the various options and so the attorney can manage the expectations of the AIP. Fighting the imposition of a guardianship requires a highly skilled attorney, who understands the system and the rights of the AIP.

At the incapacity hearing, the petitioner has the burden of proving incapacity, and both the petitioner and the AIP can call witnesses, provide evidence, and testify themselves. The court may only adjudicate the person incapacitated if it finds by clear and convincing evidence that the person is incapacitated and there is no other alternative to appointing a guardian. The court may decide that the person is fully incapacitated (i.e., a plenary guardianship), or may limit the adjudication of incapacity and only remove some of the AIP’s rights. Additionally, only some rights removed from the Ward are delegable. For example, the court cannot give the guardian the authority to vote on behalf of the Ward. The court may not appoint a guardian if there is a less restrictive alternative means to entering a guardianship. For example, if the alleged incapacitated person has already granted someone power of attorney, or certain control over their finances, healthcare, or legal affairs, the court may find that this person’s control is sufficient to assist the AIP and provides a less restrictive alternative to imposing a guardianship. Although often necessary, appointing a guardian is extremely intrusive into the Ward’s life, as it results in the taking away of the Ward’s rights and can pose an additional financial burden on the Ward because the guardian is entitled to reasonable compensation from the assets of the Ward.

Litigation in guardianship proceedings may also arise after a guardianship has been established and a guardian has been appointed. A guardian often has control over the finances, healthcare, and legal matters of the Ward. Unfortunately, this power can be abused. A guardian is a fiduciary who has duties and obligations to the Ward, and may only act within the scope of the authority granted by the court and as provided by law. If a guardian fails to act in conformity with these duties and obligations, the guardian can face removal, as well as civil and criminal penalties depending on the nature of the guardian’s actions. Florida Statutes have recently been revised to specifically indicate that a guardian may not abuse, neglect, or exploit a Ward. Florida Statutes require mandatory reporting of these actions, and impose criminal penalties for exploitation of an elderly person or disabled adult.

Guardianship proceedings happen quickly and dramatically affect the lives of those involved. It is crucial to contact an attorney who has knowledge and experience in guardianship litigation and who can guide you through the process or inform you of your rights with respect to proceedings that are unnecessary or brought in bad faith. The lawyers of Chepenik Trushin LLP serve Miami and surrounding areas in guardianship litigation matters.

Please do not hesitate to call us at (305) 981-8889, for a consultation, or contact us online.

Client Reviews
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Just want to start off by saying the team assembled at CHEPENIK/TRUSHIN is by far amazing. Their dedication and the amount of time they put into working on my file is by far the best service I have ever received. And the cherry on top is their ability to communicate with me and their entire team is seamless. Peter C is also a wealth of knowledge that can guide you in the right direction and place you in the competence of BART and BRAD. This is a firm I highly recommend. Ali M, business owner, Miami, FL 2018
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The team at Chepenik Trushin LLP are experienced, professional and dedicated in handling all Probate, Guardianship and Estate legal matters. I have referred them numerous clients over the years; all of which have been truly appreciative of their firm's excellence in representation. Jesse S., Esq.
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I highly recommend this law firm for your estate planning and probate litigation needs. Passionate and dedicate attorneys who are committed to going above and beyond to help their clients. Tiffany C Gonzalez, CPA
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He (Honorable Magistrate Judge Kimler, Miami Dade Probate and Guardianship court) taught me well. After my experience with my client and your law firm as my legal counsel, the standing joke at Dade County courthouse is that I know the Marchman Act almost as well as the judge who wrote it. Ms. Bambi Williams, GCM
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So very impressed with Bradley Trushin, Partner at Chepenik Trushin LLP. I had the privilege of attending his presentation on Probate, Guardianship & Elder Abuse. Brad presented today to 45 trust bankers and probate realtors. Brad is a top notch Litigator with a keen attention to detail. Maji Ramos, RE Broker
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