Guardianship Litigation
Disputes over guardianship rather for a child or an elderly adult can be highly emotional and complex. Issues may range from seeking to appoint a guardian to protect a family member or loved one to challenging a legal guardian’s actions. The Zamary Law firm combines its experience of litigation and estate planning knowledge to pursue the best course of action to protect the ward.
Disagreements in guardianship litigation may concern the initial appointment of a legal guardian. The person who is alleged to be incapacitated and in need of legal protection may challenge the attempt to appoint a legal guardian. Other situations, family members may disagree whether a guardian needs to be appointed and who it should be if it is necessary.
Serious disputes may arise after an uneventful appointment of a guardian. By law, guardians are required to fulfill a number of duties and responsibilities. When a person believes that a guardian is acting improperly and failing to meet his or her duties. When a person believes that a guardian is acting improperly and failing to meet his or her duties, a legal action may be brought for a breach of fiduciary duty or dismissal of a guardian. Time may be of an essence and parties involved may be emotionally charged.
General guardian duties typically include the following:
- Becoming and remaining acquainted with the ward and keeping track of his or her capacities, needs, limitations and physical and mental health
- Managing and maintaining documentation of the ward’s finances, living arrangements, health and medical care, education and training, personal needs, desires and preferences, employment, recreation, and leisure time
- Becoming acquainted with the ward’s family, doctors, nurses, case workers, therapists and other important contacts
- Taking care of the ward’s personal effects
- Managing the ward’s money for his or her support, care, education and welfare needs
- Saving the ward’s excess money for the ward’s future needs
- Informing the court of changes in the ward’s residence
- Immediately notifying the court upon the ward’s change in condition or death
Guardians are granted the following powers by virtue of their position:
- Consent to the ward’s medical care
- Receive money payable to the ward
- Take custody of the ward
- Take action to force an obligated party to support the ward
- Petition the court for authority to consent to the adoption or marriage of the ward
- Petition the for authority to apply for divorce or legal separation on the ward’s behalf
It is extremely important for the guardian to act in the best interests both financially and medically of the ward and not for the guardian’s own personal gain.
A guardian may receive a reasonable compensation for their services and a guardian is not required to use his or her own funds to provide for the ward unless they sign an agreement accepting financial liability. Guardians are not liable to third parties for the ward’s acts nor are they liable for injury to the ward resulting from the wrongful or negligent conduct of the providers. This is only the case if the guardian had no knowledge of the acts.
Removal of a guardian may take place when an interested party is dissatisfied with the appointment of the guardian through litigation. Guardians may be removed for conduct that is not in the ward’s best interests or when the interested party believes he or she would be a more suitable guardian.
Thorough documentation in support and notice to interested parties is required to petition to remove a guardian. A temporary substitute guardian may be appointed if the guardian is not effectively performing his or her duties.
Removal of a guardian is a complex process that requires the help of an experienced litigation attorney and often time may be of an essence for the safety and health of the ward. It is critical to speak with a member of our firm so that the legal process with the courts can immediately begin. Please call us at 513-448-4150 or fill out our contact us form and we will contact you as soon as possible.
Related transactional practices: estate planning, wills and trusts, probate and estate administration, probate litigation, and charitable trusts and foundations
Credits: Southwest Florida Probate Trial Lawyers, Justia
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