Estate Planning | Probate | Business | Corporate | Guardianship | Asset Protection

Marc J. Soss, Esq.


(941) 928-0310 | mjs@fl-estateplanning.com

Guardianship Appointment IN Judge’s Discretion

A commonly asked question, in litigated Florida guardianship proceedings, is whether an immediate family member has priority over other relatives? The answer is Yes, as far as being considered, but not necessarily as to being appointed. The Judge is required to make the determination based upon what what he or she believes is in the best interest of the ward. While a certain relative or spouse may be the ward’s choice, the judge has “limited discretionary” selection of who is appointed guardian of the ward. Poteat v. Guardianship of Poteat, 771 So.2d 569, 572 (Fla. 4th DCA 2000). As a result, it is up to the judge to make the final determination as to who is to be appointed as the ward’s guardian. The Fifth District Court of Appeal held in Wilson v. Robinson, 2005 WL 3499495 (Fla. 5th DCA Dec 23, 2005) that “Discretion is abused when no reasonable person would take the view adopted by the trial court.” Canakaris v. Canakaris, 382 So.2d 1197, 123 (Fla.1980).

Sarasota Guardianship Litigation Lawyer

Sarasota & Manatee County

Guardianship Litigation

Florida guardianship litigation often involves family members fighting against other family members in heated disputes over wanting the best for their loved one, the most appropriate person to serve as their guardian and the best manner to provide for their care.  I have experience in guardianship litigation in the following areas:


Incapacity Proceedings. Under Florida law, when a petition for incapacity is filed, the guardianship court will appoint a three member panel to examine the alleged incapacitated person. The individuals appointed include a medical doctor in the area of psychiatry, a psychologist, and a lay person. If two of the three persons find the alleged incapacitated person to be incapacitated, the guardianship court will schedule an incapacity hearing. The guardianship court will appoint an attorney to represent the alleged incapacitated person. The alleged incapacitated person has the right to hire their own attorney to defend against the incapacity proceeding.


Appointment of Guardian. If the guardianship court finds the person to be incapacitated, the court will determine whether a guardianship is needed. The court is required to determine whether there is a “less restrictive alternative” to a guardianship. For example, if the incapacitated person already has their assets in a trust, has a health care directive in place along with a durable power of attorney, the court might not appoint a guardian.


Pre-Need Guardian Designation: The court is also required to take into consideration, if it determines that a less restrictive option is not available, a "Pre-Need Guardianship Designation" and family preference. Recently, the 1st District Court of Appeals, in the case of Koshenina v. Buvens, — So.3d —-, 2014 WL 304889 (1st DCA January 29, 2014) reversed a Probate Judge and concluded that “the plain reading of section 744.312(4) requires an approach that gives greater deference to designation and requires a showing that … the nominated individual should not serve as a preneed guardian because their appointment “is contrary to” the incapacitated individuals “best interests.”


Choice of Guardian. If the court finds that the appointment of a guardian is necessary, the guardianship court will appoint a guardian. If one able family member applies for the position, that person is likely appointed. If more than one person applies, the guardianship court will hold an evidentiary hearing to determine the most appropriate person to appoint. In such disputes, there are often allegations of financial abuse and self dealing directed towards each of the family members.


Guardianship Accounting. A Florida guardian is required to file an annual accounting of the guardianship finances. Many guardians struggle to properly and accurately report their activities, and some engage in acts of self dealing and theft from guardianship accounts. A family member or the court can pursue the improper acts of a guardian.


Removal of Florida Guardian. If a Florida guardian has performed poorly, the court on its own ar at the request of a family member can hold a hearing to determine whether the guardian should be removed. Grounds for removal include lack of proper care of the ward, financial self dealing, theft, lack of proper accountings, and lack of compliance with court orders..


Breach of Fiduciary Duty: In some cases, litigation arises after a guardian has been appointed as a result of allegations that the guardian has neglected the Ward, stolen the Ward’s money, or created a conflict of interest.