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Challenging The Appointment Of A Guardian


All adults, and Americans especially, highly value the independence and control that comes with reaching the age of majority. As one ages, these rights and privileges are often taken for granted, and only become an issue of contention when someone loses his/her competency over financial or personal affairs, usually as a result of the infirmities that come with age. No one wants to give up control over his/her life, but a guardianship may be necessary in instances when the person is no longer able to make reasoned decisions or understand the nature of the financial transactions or the necessities of life. Courts must approve these appointments, and are supposed to scrutinize these requests to ensure this intervention is needed, but mistakes do happen, with numerous examples regularly noted in the news, and inappropriate guardianship appointments are made. Former astronaut Buzz Aldrin is currently battling two of his children and a former business manager for control of his finances after a guardianship petition was filed citing memory loss, confusion, and paranoia. Challenging a guardianship petition is absolutely necessary if the person alleged to be incompetent truly believes he/she is capable of handling his/her own affairs. Undoing a guardian once established is even more difficult, so attacking the process from the beginning is crucial. A discussion of several methods commonly used to fight the validity of a guardianship appointment will follow below.

Qualifications of the Proposed Guardian

Guardians assume a large amount of responsibility and authority, which translates into the granting of a substantial amount of power to act on an incompetent person’s behalf. Guardianships may be established to protect a person’s finances and/or personal affairs, and the amount and type of authority should be tied to the person’s specific limitations. The threshold to petition for guardianship in Florida is quite low – if one is a Florida resident and at least 18 years old, this is enough. Non-residents related to the alleged incompetent individual (ward) and never convicted of a felony are also eligible to serve in this capacity. However, a court does want to act in the ward’s best interest, and will examine a proposed guardian’s qualifications beyond the basic requirements, especially if concerns are raised. Some issues that could block a proposed guardian from approval include:

  • A history of criminal convictions, especially for sexual or violent offenses;
  • Substance abuse;
  • A lack of understanding about the ward’s daily needs; or
  • A history of poor financial decisions.

Challenging Finding of Incompetency

A guardianship appointment is only authorized if an individual is found to be incompetent over some portion of his/her life. Courts generally rely on the findings of a three-person medical examination committee appointed by the court. The purpose of these examinations is to determine if the ward can take adequate care of him/herself. While the conclusions reached by this committee carry great weight, a person challenging guardianship can present conflicting medical reports from a physician who recently assessed the person’s capacity and found the person competent. Note the doctor should be certified in the type of incompetency alleged. In addition, testimony from friends, family, and neighbors who can corroborate examples of the individual making sound decisions can also be persuasive.

Less Restrictive Alternative

Finally, guardianship, per Florida law, is supposed to be a last resort used only after finding other means of assistance or legal arrangements are insufficient to safeguard the person’s well being, referred to as the least restrictive alternative. Evidence of a valid power of attorney over financial affairs, healthcare directives, and a revocable living trust are often sufficient to avoid the appointment of a guardian. A guardianship attorney can provide an overview of one’s options when challenging this process.

Speak with a Guardianship Attorney

Guardianship is a big step that should not be taken without careful consideration. If you have questions about the guardian process, or want to challenge an appointment entirely, speak with the experienced guardianship attorneys at the office of Joyce. A. Julian, P.A. We understand the essential rights at stake, and can help you obtain the proper resolution to concerns of incompetency. Contact the Fort Lauderdale office for a free consultation.



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