Protecting Your Rights And Interests In A Contested Guardianship
A person usually files a guardianship to request a court to remove the personal rights of the alleged incapacitated person (AIP) to make financial, medical or other decisions. If the AIP executed estate planning documents, the person may claim that those documents are not reasonable alternatives to the appointment of a guardian. The person may have valid reasons to file the guardianship proceeding, may be overzealous or have ulterior motives.
A guardianship can be contested by the alleged incapacitated person (AIP), a fiduciary such as an agent appointed by a power of attorney, a health care surrogate, trustee, family member, spouse and others. Guardianship litigation is an exceedingly complex, emotional and contentious proceeding. A contested guardianship is basically an accelerated trial. It may involve discovery, depositions and evidentiary rulings. The attorney representing your interests in guardianship litigation must not only possess the knowledge and experience to navigate through the guardianship code, but the attorney must also be a skilled litigator. Do not trust your guardianship litigation matter to any attorney who does not possess the litigation skills, knowledge and experience needed for guardianship litigation. You need a guardianship litigator, not merely an attorney.
The Florida Guardianship Law, United States Constitution and Florida Constitution entitles the alleged incapacitated person (AIP) to due process, the right to a hearing and the right to an attorney. The court may remove the AIP’s personal rights only if the court determines, on the basis of clear and convincing evidence, that the AIP lacks the capacity to exercise one or more personal rights. Before the court appoints a guardian, the court must also make a finding that the AIP’s estate planning documents are not reasonable alternatives to guardianship.
The court will appoint an attorney to represent the AIP’s interests in the guardianship proceeding, but the alleged incapacitated person has the right select his or her own attorney. At Lyons, Beaudry & Harrison, we have the litigation skills, knowledge and experience needed to represent your interests in any guardianship litigation, and many times represent the alleged incapacitated person to defend and preserve his or her personal and constitutional rights.
Representing Fiduciaries To Enforce Estate Planning Documents As The Least Restrictive Alternatives To Guardianship
Even if valid estate planning documents are in effect, a guardianship proceeding may still be filed. Under Florida law, if there is a “least restrictive alternative to a guardianship,” the appointment of a guardian, and the expense related thereto, can be avoided. A proper estate plan that establishes a durable power of attorney, health care directive, living will, and a trust is a least restrictive alternative to a guardianship and a defense to the guardianship proceeding.
At Lyons, Beaudry & Harrison, we have the litigation skills, knowledge and experience needed to represent fiduciaries such as an agent of a power of attorney, health care surrogate of a health care directive, and trustee of a trust in a contested guardianship and to navigate through this difficult and contentious guardianship process with as little stress as possible to uphold these estate planning documents as reasonable alternatives to a guardianship.
Representing Family Members And Others In Guardianship Litigation Matters
Sometimes estate planning documents are changed through the influence of a predator, family member, neighbor or others. In this situation, the estate planning documents may not be the “least restrictive alternative” to a guardianship. In fact, a guardianship proceeding may be necessary to challenge the validity of the changes to these estate planning documents, challenge financial transactions or to seek a financial exploitation injunction.
We understand the importance of negotiating a resolution of such disputes to avoid a guardianship and maintain the dignity and rights of the elderly person, but also have the litigation skills, knowledge, and experience needed to challenge the estate planning documents as reasonable alternatives to the appointment of a guardian, seek an injunction protecting your loved one from financial exploitation, and to aggressively represent your interest in the contested guardianship proceeding, if necessary.
Working Through A Breach Of Fiduciary Duty
If a guardian is appointed to determine the medical and financial decisions of an individual (ward), the guardian must make these decisions in the best interests of the individual. The Florida Guardianship Law also imposes certain responsibilities and duties upon the guardian. If these obligations are breached by the guardian, the guardian may be subject to removal and personal liability. It may be necessary to pursue your remedies in the guardianship proceeding. This type of guardianship litigation can be complex and stressful.
At Lyons, Beaudry & Harrison, P.A., we have litigation skills, knowledge and experience necessary to help you navigate through this difficult process with as little stress as possible, and pursue claims and remedies in the guardianship proceeding.
Consult With A Trusted Guardianship Litigation Attorney For Guardianship Proceedings Filed In Sarasota County and Manatee County
Whether you are seeking an elder law attorney to assist with your unique legal issues, wish to avoid guardianship, need assistance to protect a family member or other elderly person from a predator, neighbor, “friend,” caretaker or relative, or must initiate or defend a guardianship proceeding, we, at Lyons, Beaudry & Harrison, have the skill, knowledge, and experience required to resolve or litigate your legal issues. We represent clients for guardianship proceedings brought in Sarasota County and Manatee County, which includes the communities of Sarasota, Bradenton, Venice and Lakewood Ranch.