Has your loved one been deemed incapacitated by a court order and had a court appointed guardian over their person and property? Do you believe the court appointed guardian is improperly taking care of your loved one and managing their assets in their best interest? Are you concerned for your loved one’s safety and health? Are you afraid their assets are being wasted? If you answered yes to one or more of these questions, you might be considering trying to remove the court appointed guardian and becoming the guardian of your loved one.
Florida Statute 744.474 allows a court appointed guardian to be removed for any of the following twenty-one (21) reasons:
- Fraud in obtaining her or his appointment.
- Failure to discharge her or his duties.
- Abuse of her or his powers.
- An incapacity or illness, including substance abuse, which renders the guardian incapable of discharging her or his duties.
- Failure to comply with any order of the court.
- Failure to return schedules of property sold or accounts of sales of property or to produce and exhibit the ward’s assets when so required.
- The wasting, embezzlement, or other mismanagement of the ward’s property.
- Failure to give bond or security for any purpose when required by the court or failure to file with the annual guardianship plan the evidence required by s. 351 that the sureties on her or his bond are alive and solvent.
- Conviction of a felony.
- Appointment of a receiver, trustee in bankruptcy, or liquidator for any corporate guardian.
- Development of a conflict of interest between the ward and the guardian.
- Having been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under s. 04 or similar statute of another jurisdiction.
- A material failure to comply with the guardianship report by the guardian.
- A failure to comply with the rules for timely filing the initial and annual guardianship reports.
- A failure to fulfill the guardianship education requirements.
- The improper management of the ward’s assets.
- A material change in the ward’s financial circumstances such that the guardian is no longer qualified to manage the finances of the ward, or the previous degree of management is no longer required.
- After appointment, the guardian becomes a disqualified person as set forth in s. 309(3).
- Upon a showing by a person who did not receive notice of the petition for adjudication of incapacity, when such notice is required, or who is related to the ward within the relationships specified for nonresident relatives in SS. 309(2) and 744.312(2) and who has not previously been rejected by the court as a guardian that the current guardian is not a family member and subsection (20) applies.
- Upon a showing that removal of the current guardian is in the best interest of the ward. In determining whether a guardian who is related by blood or marriage to the ward is to be removed, there shall be a rebuttable presumption that the guardian is acting in the best interests of the ward.
- A bad faith failure to submit guardianship records during the audit pursuant to s. 368.
Florida Probate Rule 5.660 governs the proceedings for removing a court appointed guardian. Proceedings to remove a guardian may be instituted by “a court, by any surety or other interested person, or by the ward.” Formal notice of such proceedings must be given to the current guardian and ward as well as to any other interested person and next of kin.
In order to serve as the guardian you must be a Florida resident over 18 years of age OR be a nonresident who is a blood relative, an adopted child or parent, a spouse, brother, sister, uncle, aunt, niece, nephew, or the spouse of a qualified person. Florida Statute 744.309.
As an alternative, if you do not wish to serve as a guardian yourself, Florida Probate Code 5.725 allows for a Petition for Emergency Court Monitor to be filed by the court or any interested person. For such petition to be granted, there must be “imminent danger that the physical or mental health or safety of the ward will be seriously impaired or that the ward’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.” Florida Probate Code 5.725(b). A Petition for Court Monitor can also be filed on a non-emergency basis. The role of the Court Monitor is to investigate the well being of the ward and how the ward’s assets are being managed. If the court monitor’s report reveals further action needs to be taken in order to protect the ward in any way, the court can enter any necessary order.
If you are thinking of filing a Petition to Remove Guardian and becoming the guardian of your loved one, you can only do so while represented by an attorney in Florida. The Jacksonville Guardianship attorneys at the Law Office of David M. Goldman, PLLC can help you determine whether a Petition for Removal of Guardian or Petition for Court Monitor is in the best interest of your loved one. Call today for a free initial consultation (904) 685-1200.