Finding that a court-ordered guardianship is necessary for an elderly or disabled individual is a major life event for the individual as well as their family. In some cases, friends and family are saddened. In others, they are relieved that the individual is receiving the help they need. But it is not always easy to tell when someone might need a legal guardian, or what power such a guardian should have. Worse, guardians sometimes take advantage of their position and steal from or hurt the person they are obligated to protect. If you or a loved one is facing a guardianship situation, consult experienced counsel. The trusted Palm Beach guardianship litigation attorneys at Kitroser & Associates have the experience and knowledge to help you understand guardianship litigation.
As with any determination involving an individual’s mental state, there is no one-size fits all analysis. For catastrophic injuries which leave an individual completely unable to care for themselves, a guardianship may generally prove appropriate. But what about a person with a limited set of capacity issues? Perhaps they are in fine physical shape and have a great memory, but cannot seem to manage their money for whatever reason. Maybe a person has a mental disease and occasionally has trouble staying medicated. In order to determine whether a guardianship is appropriate, a court will have to undertake a capacity adjudication and determine to what extent and individual has mental capacity. Such a determination is a significant event because it could take away rights an individual would otherwise have. Therefore, the court must find a person lacks capacity through clear and convincing evidence. Even if a lack of capacity is found, the court will attempt to act in the best interest of the elderly or disabled individual, often referred to as a Ward by the court.
Acting in the Ward’s best interests may involve some highly-individualized determinations. For instance, a court might find that a limited guardianship, which only covers certain activities is appropriate. In many cases, a less-restrictive alternative to a guardianship is advisable. Additionally, the court must pick the right guardian. The court will give preference to a family member, but it may also consider the Ward’s preference. It is important to understand that, depending on individualized family dynamics, a court need not choose a family member as a guardian – even if the family sought the guardianship. Guardianship proceedings are complex, and it takes the right professionals on your side to understand and advocate for your position. Our Palm Beach guardianship litigation attorneys serve the best interests of elderly or disabled persons.
Guardians are legally obligated to serve the best interests of the Ward in their care. They must provide for them and manage resources as part of a fiduciary responsibility. Moreover, guardians hold a great deal of trust and confidence and are expected to act in an ethical manner at all times. Sadly, many guardians run afoul of the law, betray the trust of their Ward, or both. When such events occur, it is necessary to remove the guardian. Removal can occur due to a guardian’s conviction for any crime of dishonesty – such as fraud, embezzlement, or perjury, or any felony. Where removal is more technical is when a party has to prove there is financial misconduct with the Ward’s assets, or other inappropriate action toward the Ward.
In these cases, a party seeking to remove a guardian must review court accountings, financial records, and property and title records. Additionally, gathering information from a Ward is often difficult or impossible because some form of incapacity has already led to the Ward’s guardianship situation. In some cases, a guardian might not act in an intentionally inappropriate manner, but the records may reflect that they are not performing their duties at an acceptable level. Even where there is no intentional misconduct, removing guardians is often very stressful, time-consuming, and requires detail-oriented litigation. Emotions can run high, and it is important to have a caring, hard-working advocate on your side. Our guardianship litigation attorneys provide tough, objective advocacy in guardianship litigation matters.
When you are facing guardianship litigation issues, contact the attorneys at Kitroser & Associates. We are trusted and experienced legal advocates who treat your situation with sensitivity and discretion. Individuals and families throughout South Florida have trusted us with all their estate planning needs for nearly 100 years. Contact us today to schedule a free consultation at 561-721-0600 or contact us online.
The North Palm Beach Estate Planning Lawyers of Kitroser & Associates, welcome clients from the cities of West Palm Beach, Stuart, Palm Beach Gardens, Palm Beach, Jupiter, Tequesta, Juno Beach, Singer Island, Lake Park, Hobe Sound, Royal Palm Beach, Wellington, Lake Worth, as well as all of Palm Beach County, Martin County and South Florida.
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