How to Fight a Guardianship in Miami, Florida

Guardianship under Florida Statutes Chapter 744 removes some or all of a person's fundamental rights, including the right to decide where to live, what medical treatment to receive, and how to manage their own finances. Because the stakes are so high, Florida law provides multiple avenues for challenging guardianship proceedings. Whether you are the person subject to a guardianship petition, a family member who believes the wrong person has been appointed as guardian, or a ward seeking to restore your rights, understanding how to fight a guardianship in Florida is essential to protecting your interests.

Contesting the Initial Guardianship Petition

When someone files a petition to determine incapacity, the alleged incapacitated person has substantial rights under Florida law to contest the proceeding. The most effective time to fight a guardianship is before it is established.

Rights of the Alleged Incapacitated Person

Under F.S. § 744.331 and related provisions, the alleged incapacitated person has the right to:

Legal representation. The court must appoint an attorney to represent the person within three days of the petition being filed if the person does not already have counsel. The person may also retain their own attorney.
Notice of all proceedings. The person must receive formal notice of the petition and all hearings.
Be present at all hearings. The person has the right to attend every court proceeding related to their case.
Testify and present evidence. The person may offer testimony and introduce evidence showing they are not incapacitated.
Cross-examine witnesses. The person or their attorney may cross-examine the examining committee members and any other witnesses.
Request a jury trial. Under F.S. § 744.331(5), the alleged incapacitated person has the right to demand a trial by jury on the question of incapacity.
Independent medical evaluation. The person may retain their own medical experts to evaluate their capacity and present competing findings to the court.

Strategies for Contesting the Petition

An effective defense against a guardianship petition may involve:

Challenging the examining committee's findings. The committee members' reports are not conclusive. An experienced attorney can cross-examine the committee members to expose weaknesses in their methodology, highlight areas where the person retains capacity, and present testimony from the person's own physicians or psychologists.
Demonstrating capacity. If the person can demonstrate that they understand the nature and consequences of their decisions, manage their daily affairs, or have only minor deficiencies that do not warrant guardianship, the court may deny the petition.
Presenting less restrictive alternatives. Florida law requires the court to consider whether a durable power of attorney, health care surrogate designation, trust, or other mechanism can adequately protect the person without the need for guardianship. If such alternatives exist, the court should deny the petition.
Questioning the petitioner's motives. If the petitioner is seeking guardianship for improper reasons, such as gaining control over the person's assets or isolating them from other family members, this can be raised as a defense.
Arguing for limited guardianship. Even if the court finds some degree of incapacity, an attorney can argue that only a limited guardianship is appropriate, preserving as many of the person's rights as possible.

Challenging the Appointment of a Specific Guardian

Even when incapacity is established, interested parties can challenge who is appointed as guardian. Under F.S. § 744.312, the court must consider the best interests of the ward when selecting a guardian. Grounds for objecting to a proposed guardian include:

Conflict of interest. The proposed guardian has financial interests that conflict with the ward's interests, such as being a creditor of the ward or having a business relationship that could benefit from the guardianship.
Criminal history. Under F.S. § 744.3135, a person convicted of certain felonies is disqualified from serving as guardian.
Prior misconduct. Evidence that the proposed guardian has previously neglected, abused, or exploited a vulnerable person.
Inability to serve. The proposed guardian lacks the skills, knowledge, or temperament to fulfill the duties of a guardian.
Ward's preference. The court must consider any preference the ward expressed before becoming incapacitated, including nominations made in a written declaration under F.S. § 744.3045.

Restoration of Capacity (Restoring Rights)

A ward who has regained capacity, or who was wrongfully found incapacitated, may petition the court for restoration of rights under F.S. § 744.464. This is one of the most important mechanisms for fighting an existing guardianship.

Who Can File a Suggestion of Capacity?

Any interested person may file a suggestion of capacity, including:

The ward themselves
A family member of the ward
The ward's attorney
The guardian
Any other interested person

The Restoration Process

File a suggestion of capacity. The suggestion must be filed with the court that established the guardianship. It should include any available medical evidence or other documentation supporting the claim that the ward has regained capacity.
Court appoints an examining committee. Just as in the original incapacity proceeding, the court appoints a three-member examining committee to evaluate the ward's current mental and physical condition.
Examination and reports. The committee members independently examine the ward and file written reports with the court. The reports must address whether the ward has regained the ability to exercise the rights that were previously removed.
Hearing. The court holds a hearing at which the ward, through their attorney, can present evidence of capacity. The guardian and other interested parties may participate.
Court order. If the court finds that the ward has regained capacity in some or all areas, it enters an order restoring those rights. The guardianship may be terminated entirely if full capacity is restored, or it may be modified to a more limited form.

Removing or Replacing a Guardian

If a guardian is failing to fulfill their duties, acting in their own interest rather than the ward's, or otherwise causing harm, interested parties can petition the court to remove the guardian under F.S. § 744.474. Grounds for removal include:

Failure to file required reports. Guardians must file annual plans and accountings. Repeated failure to comply is grounds for removal.
Mismanagement of assets. Wasting, stealing, or mismanaging the ward's property or finances.
Abuse or neglect of the ward. Failing to provide adequate care, isolating the ward from family, or physical, emotional, or financial abuse.
Conviction of a felony. A guardian convicted of a felony during the guardianship must be removed.
Incapacity or inability to serve. If the guardian becomes unable to perform their duties due to their own health or other circumstances.
Conflict of interest. Engaging in self-dealing transactions or using the ward's assets for personal benefit.

The court may also appoint a guardian ad litem to investigate allegations against a guardian and report findings to the court.

Filing a Complaint with the Court or Regulatory Authorities

In addition to filing a petition for removal, concerned parties can:

File a complaint with the clerk of the circuit court, who has oversight responsibilities for guardianship cases under F.S. § 744.368
Report concerns to the Statewide Public Guardianship Office if the guardian is a registered professional guardian
Contact the Florida Department of Elder Affairs or local adult protective services if the ward is being abused, neglected, or exploited
Report suspected criminal conduct to local law enforcement

Emergency Actions

When a ward is in immediate danger due to a guardian's actions or inaction, the court may take emergency action. An interested party can file an emergency motion seeking:

Temporary suspension of the guardian's authority
Appointment of a temporary or emergency guardian
An emergency order freezing the ward's assets to prevent further dissipation
An order requiring the guardian to take specific protective action

Contact a Florida Guardianship Attorney

Fighting a guardianship in Florida requires a thorough understanding of Chapter 744 and the ability to act quickly to protect your rights or the rights of a loved one. Whether you are contesting an initial guardianship petition, seeking to restore capacity, or challenging the actions of an appointed guardian, the attorneys at the Law Offices of Albert Goodwin can provide experienced representation. Call us at 786-522-1411 or email us at [email protected] to schedule a consultation at our Coral Gables office.