GUARDIANSHIP

Ruden McClosky's Guardianship Practice Group provides a full range of services to those individuals who seek to be appointed a guardian under Florida law and to those who choose to contest the appointment of someone as guardian. Our attorneys have extensive administrative and litigation experience in this area and can help ensure that a proper guardian is found for each individual.

When a person becomes incapacitated, if there has been no prior incapacity planning, and the person is not able to care for himself/herself, the probate courts become involved and the judges oversee all aspects of the incapacitated person's life (including the person's care as well as his/her finances). This legal proceeding is known as a guardianship. There are guardianships for both the elderly who are not able to care for themselves and for minors (i.e. those under 18 years of age in Florida). Normally the mother and father of a child are considered his/her natural guardians. Under Florida law, the natural guardians are authorized to receive settlements, devises, and distributions on behalf of the minor if the net payment is $15,000 or less. However, if the minor receives more than $15,000 a judicially supervised guardianship must be created.

Judicially supervised guardianships are subject to rigid statutory and procedural requirements. With the assistance of Ruden McClosky attorneys who have significant experience in the field, a guardian may satisfy these strict guidelines. Specifically, the Guardianship Practice Group can assist you in the following areas:

Petition to Determine Incapacity
Petition for Appointment of Guardian
Preparation of Initial Plan and Inventory
Preparation of Annual Plans and Annual Accountings
Establishment of Annual Budgets
Guardianship Administration

While many proceedings to determine whether an individual is incapacitated and whether a guardian should be appointed are not vigorously contested, occasionally these proceedings do become adversarial. Before an order determining incapacity has been issued by the Probate Court, the individual who is the subject of the proceeding is entitled to challenge the allegations of incapacity. The Probate Court is required to appoint an attorney to represent the interests of the individual. In addition, the individual is also entitled to retain a private attorney. The party seeking an order of incapacity requires an attorney to secure evidence of incapacity and to present such evidence to the Probate Judge and/or General Master. Contested incapacity proceedings involve discovery, motion practice, and ultimately an evidentiary hearing before the Court.

If the Court determines that the individual is incapacitated, the next issue to be addressed is who should be appointed as guardian. This issue can also be litigated, with various parties presenting arguments and evidence regarding the suitability of the party/parties seeking to be appointed guardian. Even after the Court has decided upon a guardian, the assistance of an attorney with guardianship experience is necessary. The guardian is required to adhere to strict statutory and procedural mandates, including the preparation of fiduciary accountings of all assets over which the guardian has control. Litigation arises regarding whether the guardian is properly caring for the incapacitated ward and/or the ward's assets.

In this area, the Guardianship Practice Group can assist you in the following areas:

Contested Determination of Capacity
Contested Appointments of Guardians
Guardianship Related Litigation

We understand that you may require a team of advisors in non-legal fields. Therefore, we offer our clients access to our network of contacts and other resources including accountants and investment advisors.