When a loved one can no longer manage certain aspects of their life, a guardianship may be necessary. But what happens when family members disagree? Can a guardianship be contested by other family members?
In Florida, some family members and other interested persons may be able to challenge aspects of a guardianship or object to the appointment of a particular guardian. However, being a family member does not automatically give someone the right to stop a guardianship.
Here is what you need to know about the specific procedures for raising objections.
Challenging the Necessity of a Guardianship
Florida law does not assume that a person should lose all decision-making authority because they need assistance.
In an incapacity proceeding, the court decides whether a person is unable to exercise certain rights and, if so, which rights are affected.
Under Florida Statutes § 744.331, the court follows a process for determining incapacity. During this stage, the individual is entitled to an attorney. Additionally, the petition identifies the person’s next of kin, who must receive notice of the proceeding.
If incapacity is established, the court identifies the rights the person is unable to exercise instead of automatically removing every legal right.
For example, someone may need assistance managing financial matters while still being capable of making other personal decisions.
A family member who believes a loved one remains capable of exercising certain rights may have an opportunity to raise their concerns through the guardianship proceedings.
Can a Family Member Object to Who Becomes Guardian?
In some cases, everyone agrees that a guardianship is appropriate. However, they may disagree about who should serve as guardian. This happens when adult children have different relationships with a parent or different ideas about what is best for that parent.
Florida law addresses this situation. Under Florida Statutes § 744.2005, the court may hear testimony about who is entitled to preference in the appointment of a guardian, and an interested person may intervene in those proceedings.
The court also considers several factors when selecting a guardian. Under Florida Statutes § 744.312, those factors include:
- The proposed guardian’s relationship to the ward
- Their relevant experience
- Their ability to manage financial resources
- Their ability to meet the individual’s needs
The court must also consider the wishes of the ward about who should serve. When the ward cannot express a preference, the wishes of the next of kin are taken into consideration.
Remember that being a relative does not automatically guarantee an appointment. The court will look at what is appropriate under the circumstances.
What Are Grounds for Objecting to a Guardian?
A family member’s objection needs to involve more than a preference for a different relative. Some of these concerns may occur if a proposed guardian has a conflict of interest, does not meet the legal qualifications to serve, or may not be capable of properly handling the responsibilities involved.
There may also be concerns about the person’s ability to manage the ward’s financial resources or meet the ward’s needs.
These facts are important. The court is not deciding which family member makes the best argument. It must look at who is legally qualified to serve the interests of the person under guardianship.
Can a Family Member Challenge an Existing Guardianship?
A guardianship is not untouchable once a guardian has been appointed. Florida guardianships are under the supervision of the court. If circumstances change or concerns arise, the law provides ways to address certain issues through the guardianship court.
For example, Florida law provides a process for seeking restoration of some or all of a ward’s rights if the ward regains the ability to exercise them. Under Florida Statutes § 744.464, an interested person, including the ward, may file a suggestion of capacity.
Talk to Niebla Probate Firm About Your Florida Guardianship Concerns
When family members disagree about a guardianship, emotions can run high. You may want to make sure that your parent, sibling, or other loved one is protected and treated fairly.
Florida law has procedures for addressing concerns about incapacity, the appointment of a guardian, and changes to an existing guardianship. Knowing those options is an important first step.
If you believe a guardianship should be challenged, have concerns about who has been appointed guardian, or are not sure what rights you have as a family member, Niebla Probate Firm can help you understand your options.
Reach out to schedule a consultation to learn how Florida guardianship law may apply to your situation.
