Contested Guardianship in Florida
Fla. Stat. §§ 744.331, 744.312, 744.474
A guardianship can be contested at three points in Florida: whether the person is incapacitated at all, who should serve as guardian, and whether a sitting guardian should be removed. Incapacity must be proved by clear and convincing evidence, and the court cannot appoint a guardian if a less restrictive alternative will meet the person's needs (Fla. Stat. § 744.331).
What it is
Any adult may file a verified petition to determine that another person is incapacitated (Fla. Stat. § 744.3201(1)). The petition must state the facts behind the petitioner's belief and, if the person already uses assistance such as supported decision-making, why that assistance is not enough (§ 744.3201(2)(d)–(e)). Notice must be served on the next of kin identified in the petition (§ 744.331(1)).
Florida's guardianship law starts from the view that removing a person's rights may be unnecessary. The Legislature directed that the least restrictive form of guardianship be used and that alternatives be explored before a plenary guardian is appointed (Fla. Stat. § 744.1012(1)–(2)). Those principles give family members and the person themself real grounds to object.
A contested case can involve the person alleged to be incapacitated, family members who disagree about whether a guardianship is needed, or relatives who agree on the need but not on who should serve. After appointment, disputes shift to the guardian's conduct and whether the guardian should be removed (Fla. Stat. § 744.474). For an overview of the process when no one objects, see Florida guardianship.
Grounds and Rights in a Contested Guardianship
These are the main points at which a Florida guardianship can be contested:
- The person's own lawyer: the court must appoint an attorney for every person alleged to be incapacitated, and the person may substitute an attorney of their own choosing (Fla. Stat. § 744.331(2)(b)).
- Hearing rights: the person may remain silent without that silence being used as evidence of incapacity, testify, present evidence, call witnesses, cross-examine all witnesses, and choose an open or closed hearing (Fla. Stat. § 744.1095).
- The examining committee: three members examine the person and report (Fla. Stat. § 744.331(3)). If a majority conclude the person is not incapacitated in any respect, the court must dismiss the petition (§ 744.331(4)). The petitioner and the alleged incapacitated person may object in writing to admitting all or part of the reports no later than 5 days before the hearing (§ 744.331(3)(i)).
- The standard of proof: partial or total incapacity must be established by clear and convincing evidence, and the court may remove only the rights the person lacks capacity to exercise (Fla. Stat. § 744.331(5)(c), (6)).
- Less restrictive alternatives: a guardian may not be appointed if an alternative, such as an advance directive, durable power of attorney, representative payee or trust, will sufficiently address the person's problems (Fla. Stat. §§ 744.331(6)(b), 744.334(1)). See alternatives to guardianship.
- Who serves: the court must appoint a qualified preneed or standby guardian unless that is contrary to the ward's best interests (Fla. Stat. § 744.312(1)), and must consider the person's own wishes and those of next of kin (§ 744.312(3)). A preneed guardian declaration creates a rebuttable presumption that the named person is entitled to serve (§ 744.3045(4)).
A challenge to a trust, trust amendment or durable power of attorney can affect whether it counts as an alternative. If an interested person files a verified statement of a good-faith belief that the document is invalid, with a reasonable factual basis, it is not deemed an alternative to guardianship (Fla. Stat. § 744.331(6)(f)).
Contesting Incapacity vs. Removing a Guardian
| Aspect | Contested Guardianship in Florida | Removing a guardian |
|---|---|---|
| Governing statute | Fla. Stat. § 744.331 | Fla. Stat. §§ 744.474, 744.477 |
| Who can raise it | The alleged incapacitated person, through counsel; next of kin named in the petition receive notice (§ 744.331(1)) | The court, a surety, any other interested person, or the ward (§ 744.477) |
| What must be shown | Petitioner must prove incapacity by clear and convincing evidence (§ 744.331(5)(c)) | A ground in § 744.474, such as failure to discharge duties, abuse of powers, mismanagement or conflict of interest |
| Built-in presumption | A preneed guardian is presumed entitled to serve (§ 744.3045(4)) | On a best-interests removal, a guardian related by blood or marriage is rebuttably presumed to act in the ward's best interests (§ 744.474(20)) |
| Possible outcomes | Dismissal, a limited guardianship, an alternative to guardianship, or a plenary guardianship | Removal and a new guardian, or another order proper on the pleadings and evidence (§ 744.477) |
The Statutory Schedule of an Incapacity Case
Incapacity proceedings move quickly. Objections and evidence need to be ready inside these statutory windows. Where a petition also seeks immediate authority, see emergency temporary guardianship.
- Notice: the notice and petitions must be served on and read to the alleged incapacitated person, and served on next of kin named in the petition (Fla. Stat. § 744.331(1)).
- Within 5 days of filing: the court appoints a three-member examining committee; one member must be a psychiatrist or other physician (Fla. Stat. § 744.331(3)(a)).
- Within 15 days of appointment: each committee member files a report with the clerk (Fla. Stat. § 744.331(3)(e)).
- At least 10 days before the hearing: the reports must be served on the petitioner and the person's attorney, unless that period is waived (Fla. Stat. § 744.331(3)(h)).
- No later than 5 days before the hearing: the petitioner or the alleged incapacitated person files any written objection to admitting the reports into evidence (Fla. Stat. § 744.331(3)(i)).
- Hearing: held at least 10 and no more than 30 days after the last report is filed, unless good cause is shown; the person must be present unless that is waived or good cause is shown (Fla. Stat. § 744.331(5)(a)–(b)).
- Order: the court states the exact nature and scope of any incapacity and the specific rights removed; the person keeps every right not specifically removed (Fla. Stat. § 744.331(6)).
Is an attorney required?
The alleged incapacitated person always has a lawyer, because the court must appoint one (Fla. Stat. § 744.331(2)(b)). That lawyer may not also serve as guardian or as counsel for the guardian or the petitioner (§ 744.331(2)(c)). Family members who want to object, propose a different guardian, or argue that a power of attorney or health care surrogate already meets the person's needs (§ 744.3115) need their own counsel, because the schedule is short and the reports drive the result. A petition dismissed or denied can carry consequences for the petitioner: if the court finds it was filed in bad faith, costs and attorney fees may be assessed against the petitioner (§ 744.331(7)(c)). Many family disagreements over who should serve can be settled; both partners are Florida Supreme Court Certified Circuit Court Mediators. See also probate and guardianship litigation.
Frequently Asked Questions
How do I contest a guardianship in Florida?
The person alleged to be incapacitated contests through a court-appointed or chosen attorney and may object in writing to the examining committee reports at least 5 days before the hearing (Fla. Stat. § 744.331(3)(i)). Next of kin named in the petition receive notice (§ 744.331(1)). The issues are whether the person is incapacitated, whether an alternative such as a durable power of attorney is enough (§ 744.331(6)(b)), and who should serve (§ 744.312). After appointment, an interested person can petition to remove the guardian (§ 744.477).
Does the person get their own lawyer in a Florida guardianship?
Yes. The court must appoint an attorney for each person alleged to be incapacitated, and the person may substitute an attorney of their own choosing (Fla. Stat. § 744.331(2)(b)). The person also has the right to testify or remain silent, present evidence, call and cross-examine witnesses, and choose whether the hearing is open or closed (§ 744.1095). Refusing to testify may not be used as evidence of incapacity.
Can a power of attorney or health care surrogate stop a guardianship?
It can. If the court finds an alternative to guardianship, such as an advance directive or durable power of attorney, will sufficiently address the person's problems, a guardian may not be appointed (Fla. Stat. § 744.331(6)(b)). If an interested person files a verified statement with a reasonable factual basis for believing the power of attorney or trust is invalid, it is not deemed an alternative (§ 744.331(6)(f)).
Who becomes guardian when family members disagree?
The court must appoint a qualified preneed or standby guardian unless doing so is contrary to the ward's best interests (Fla. Stat. § 744.312(1)). Otherwise, the court prefers a person related by blood or marriage, or one with relevant experience or the ability to manage the finances (§ 744.312(2)), and considers the incapacitated person's wishes and those of next of kin (§ 744.312(3)).
How do I remove a guardian in Florida?
The court, a surety, any other interested person or the ward may start removal proceedings, with reasonable notice to the guardian (Fla. Stat. § 744.477). Grounds include failure to discharge duties, abuse of powers, mismanagement of the ward's property, a conflict of interest, and failing to file required reports (§ 744.474). On a best-interests removal, a guardian related to the ward by blood or marriage is rebuttably presumed to be acting in the ward's best interests (§ 744.474(20)).
What happens if the examining committee finds the person is not incapacitated?
If a majority of the three examining committee members conclude that the person is not incapacitated in any respect, the court must dismiss the petition (Fla. Stat. § 744.331(4)). If the petition is dismissed or denied and the court finds it was filed in bad faith, costs and attorney fees may be assessed against the petitioner (§ 744.331(7)(c)).
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Facing a guardianship petition, or a guardian you believe should be replaced?
The statutory schedule is short. Call (407) 843-0430 or schedule a consultation with our Orlando guardianship attorneys to review the petition, the committee reports and the options.
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