**What is Guardianship in Florida**
In Florida, a guardian is appointed by the court to make decisions for another person (called the ward) who, because of some type of incapacity, cannot make decisions for him or herself. The court supervises and reviews the actions of the guardian. While specific terminology in guardianship may vary by state, essentially guardianship in Florida means that one person is responsible for looking out for another person’s best interest. Guardianship can be the result of a variety of conditional factors, including: mental or physical disability; senility; alcoholism; drug addiction; nondisability; mismanagement of property; mental incapacity; or lawfully designated representatives. Florida Statutes, Chapters 731 through 735 provide the necessary guidelines for the requirements and limitations associated with guardianships , and they also spell out the procedures necessary for appointing a guardian for another person.
There are several types of guardianships in Florida. A guardianship of the property is a court proceeding in which an order appoints a guardian to manage the property of a ward. A guardianship of the person is a court proceeding in which a guardian is appointed to exercise the rights and powers of the ward and which includes the appointment of the guardian of the property. A limited guardianship involves limited decision making by an appointed guardian for a legally competent person. With a limited guardianship, the court has found that because the ward lacks certain specific decision-making abilities, the court will appoint a guardian to make those limited decisions. A voluntary guardianship is based upon the consent of the allegedly incapacitated person for the appointment of a guardian. Finally, temporary guardianships are granted in limited circumstances and are ex parte appointments for short periods of time before a full guardianship hearing occurs.
**Why Terminating a Guardianship**
There are several scenarios in which the Florida courts may terminate a guardianship. When asking the court to terminate a guardianship, the petitioner needs to present the proper evidence that shows good reason for the termination.
The most common reason is a change in the capacity of the ward. If the court granted limited guardianship based on the ward not having certain capacity, and those circumstances have changed, then the petitioner could seek the termination of the guardianship. The burden of proof is on the petitioner to show the court that capacity has changed, thus negating the need for the guardianship.
Another situation that ends in termination is the misconduct of the guardian, despite the careful screening process to become a guardian. However, in practice, the allegations are often unfounded. If there is legal basis for showing that the guardian is acting inappropriately or in a manner against the best interest of the ward, then the court can relieve the guardian of their duties or terminate the guardianship altogether.
The grounds for the termination may be pretty straightforward, but the procedure – like just about anything legal – is not. A Florida lawyer experienced in elder law and guardianship cases will have the knowledge and skills to properly handle the motion to terminate guardianship, from researching the situation to filing the paperwork to requesting a hearing or trial before the judge, as appropriate.
**The Process of Terminating a Guardianship**
In the context of least restrictive alternative guardianships, Florida Statutes, section 744.464 allows the Circuit Court to terminate a guardianship at any time upon a determination that the petitioner is no longer incapacitated. As in all guardianship proceedings, the petition must contain certain language required by statute. F.S. §744.440. Essentially, the petition to terminate follows the same rules as a petition to determine incapacity. Therefore, you should file an Inventory and Timeline appending supporting documentation. In addition, you may want evidence in the form of a physician’s letter or affidavit stating that the guardianship is no longer necessary because the petitioning individual has capacity.
In every guardianship proceeding where the ward is represented by a court-appointed attorney, the court must find that representation is unnecessary before it will terminate the guardianship. F.S. §744.464(C). Also, the court must find that the rights of the petitioning individual to be free of legal disabilities are consistent with the rights of the other members of the family. Id.
Once the petition to terminate is filed, the court will set a status conference to allow all parties to see the evidence. Neither party is entitled to a jury trial; decisions are at the discretion of the court. At the initial hearing, the appointing party may request the involuntary examination and evaluation of a physician.
**Filing a Petition for the Termination of a Guardianship**
Having decided to move forward with ending a guardianship and having good reason for doing so, the next step is to prepare and file the petition.
The Form
Fortunately, the form is easy to find and can be completed without worrying about where to start. The Florida Supreme Court has a completed version of the Petition to Restore Capacity that can be found here. The form must be completed by the Petitioner(s). If you were not the person who nominated the alleged incapacitated person to be under the guardianship, you will need to include information to demonstrate the change in circumstances. This includes why the individual is asking for the termination and how this change in circumstances relates to the prior basis for the guardianship.
Once completed, the document needs to be filed with the circuit court in the county that the guardianship was originally ordered. To save time, check the electronic filing system to see if your petitions or any other documents are already digitally available to view and download. The filing fee will vary depending on the county but is often between $250 and $350. You should verify the petition is filed prior to calendar days before the hearing.
**The Role of the Court in the Termination**
In Florida, a person under guardianship may petition for dissolution of guardianship. The Florida court validates both the underlying concerns and the right to petition for guardianship termination. In terminating guardianship, the probate court undertakes an investigative role by judging the credibility of the evidence put forward, both for and against the termination.
At heart, the termination of guardianship is an adversarial proceeding. Grounds to terminate guardianship include the absence of any of the four elements required for the appointment of a guardian. Specifically, the petitioner must show that a person has not done the following: successfully rehabilitated, acquired sufficient understanding or capacity to make or communicate responsible life decisions, voluntarily selected the guardian, and is not incapacitated.
The burden of proof generally falls upon the petitioner in guardianship disputes . In guardianship termination, the petitioner has the evidentiary burden to establish grounds for challenging the continued necessity of guardianship. The Florida Probate Court hears such matters in individual probate court divisions.
The Florida court evaluates for the clear and convincing evidence, which requires a high level of certainty that the accused guardian misused authority in the past. If the judge believes, for example, that the guardian misused the family member’s property, then the judge may terminate the guardianship. The Australian equivalent of a Florida guardianship is the Australian Administration Guardianship. That system also specializes in guardianship termination.
In summary, the Florida courtroom judges the evidence in guardianship termination proceedings. The burden of evidence lies with the petitioner, who must present sufficient proof that a person is capable of terminating guardianship. The Florida court plays a vital role in the guardianship dissolution process.
**The Issues with Termination of a Guardianship**
One of the potential challenges to a petition must be in general incapacity and the right venue. The other team might have to challenge said incapacity. Certain rights are not able to be restricted at times, and the family member might have a real interest under Florida law that could be detrimental. The courts are highly cautious when it comes to guardianship in general, and when it comes to termination of said guardianship. You have to make sure that all of the evidentiary matters are covered. The cost of the guardianship to a large degree is the factor that you need to concentrate on. You might face a lot of opposition in court, as well as stalking by the former guardian. It’s always important that you coordinate with your lawyer so as to not paint yourself into a corner. Your actions and words can very easily run the chance of being misinterpreted by judges, juries, lawyers and the like.
Finding ways to legally challenge a guardianship can be incredibly difficult. However, it is not impossible either. A competent attorney should be retained who can help you navigate the ins and the outs of the law in Florida. Sometime you might be dealing with a prior patient of the guardian or a family member. In certain situations, you will find that the guardian had a vested interest in the death of the decedent. It is for these reasons and a host more that competent counsel is required.
**Finding an Attorney**
When attempting to successfully trial a petition to terminate guardianship in Florida, it is always wise to seek legal counsel. The process can be complex, and grounds for termination can be difficult to prove. An attorney can help bring clarity to the case and pursue the most appropriate course of action. For example, in 2014 the Second District Court of Appeal of Florida found that under existing state law, standing is not permitted in guardianship cases. The court stated: "Clearly, in all three chapters, the legislature has precluded parties outside the scope of those chapters—those to whom the legislature has actually granted standing—from seeking any type of relief in Florida courts regarding guardians," the court stated . While a third party is not permitted to bring a guardianship proceeding, in this context it might be advisable for a third party to retain counsel to assist those who have standing to petition the court for relief. In fact, the Florida Supreme Court, in revisiting 744.468(3), specifically noted: . . . a simple examination of the statutory text [of the guardianship proceeding] confirms that the legislature intended the attorney general alone to be the sole option available to any entity or individual outside the purview of chapter 744 when an alleged incapacitated person files a petition for incapacity or when that person opposes a petition for incapacity. It is important to understand each element of the process for filing and petitioning for relief in a guardianship proceeding. Streamlining the process in consultation with a Florida guardianship lawyer experienced with the often-misunderstood process can be beneficial to all involved.