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Know Your Rights When Someone is Trying to Restrict and Remove Your Rights by a Guardianship Proceeding

Many times someone will file for guardianship of their relative or friend. They may do this because they believe the other person is incompetent. In most cases, they are asking for a guardianship of an elderly relative or loved one who has a diagnosis of Alzheimer’s Disease or Dementia. However, in some instances, they will file a guardianship because their loved one or relative suffers from a mental illness. 

In most cases, the alleged incapacitated person does not want a guardianship. The alleged incapacitated person usually wants to retain their rights and make their own decisions regarding their life and finances. 

Emergency Temporary Guardianship

After a petition to determine incapacity has been filed, but before a guardian has been appointed, the trial court may appoint an emergency temporary guardian for the person, property, or both, of an alleged incapacitated person. In order to do that, the trial court must make specific findings that there is an imminent danger to the health of the alleged incapacitated person or that the person’s property is in danger of being wasted. The trial court is not required to determine that the person is incapacitated to appoint an emergency temporary guardian. 

Rights that are not specifically enumerated by trial court in emergency temporary guardianship letters are retained by the alleged incapacitated person because the powers and duties of the emergency temporary guardian must be specifically enumerated by court order.  

Rights of an Alleged Incapacitated Person

Regarding an alleged incapacitated person’s rights, the court will appoint the alleged incapacitated person a court-appointed attorney. However, the alleged incapacitated person has a right to substitute a private attorney of their choosing in lieu of their court-appointed attorney. Even a person subject to an emergency temporary guardianship remains an alleged incapacitated person until such time as he/she is adjudicated incapacitated; and he/she is free to exercise all rights not otherwise delegated to a guardian pursuant to an emergency temporary guardianship.

While Florida Statute section 744.303(1) is broad enough to allow removal of the right to contact generally, section 744.331(2)(b) effectively prohibits the trial court from removing the alleged incapacitated person’s right to contract with an attorney. In other words, because the Statute confers on the alleged incapacitated person the right to contract with and substitute counsel, this constitutes an exception from the general authority of the trial court to remove the alleged incapacitated person’s rights. 

An alleged incapacitated person is permitted to substitute counsel until the trial court determines incapacity by clear and convincing evidence. 

If you have more questions regarding a Guardianship Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. 

This article is for informational purposes only and does not form an attorney client privilege.