Guardianship allows someone to manage the assets and property of an incapacitated person (called a ward). This role is useful when someone has reached the end of his or her life and is not capable of making important health and financial decisions. Unfortunately, a person who is incapacitated is also left vulnerable if a guardian decides to mismanage the ward’s account or cannot fulfill his or her responsibilities to the ward.
If a guardian is not fulfilling his or her duties and your loved one’s health or estate is being negatively affected, you may want to consider choosing a new guardian for your loved one, or terminating the guardian’s duties and responsibilities altogether.
Can a Guardian Be Replaced or Removed?
We have talked about how to set up a guardianship in Florida in previous posts, but sometimes a guardian will not work out. Luckily, Florida allows you to replace or remove a guardian who proves unfit to manage your assets or those of a loved one.
Florida Statue 744.447 names over 20 reasons why a guardian can be legally changed or removed in Florida. Some of these reasons include:
- Fraud was involved in how the guardian was originally appointed.
- The guardian has failed to fulfill his or her duties, or comply with the orders of the court.
- The guardian has been convicted of a felony.
- A physical or mental illness (including substance abuse) has rendered the guardian incapable of completing his or her duties.
- The guardian is not properly managing the ward’s assets, or is embezzling or wasting the ward’s property.
- The guardian has not fulfilled the required education requirements.
Basically, if a guardian is not doing his or her job, the guardian can be removed or replaced from his or her position.
So how do you do it?
How to Replace or Remove a Guardian in Florida
You can remove a guardian by filing the proper paperwork and presenting it to a Florida court. However, the paperwork you file will depend on whether or not you want to take over the role of guardian or if you simply want the current guardian removed.
If you want to take over the position of guardian, you first must check to see if you qualify for guardianship. If you comply with Florida’s guidelines for guardianship, you can file a Petition to Remove Guardian. A court will review the petition and decide whether or not the current guardian should be replaced. The current guardian, ward, and next of kin will all have to be notified if changes to guardianship are being made.
If you do not want to serve as a guardian, you can file a Petition for Emergency Court Monitor (non-emergency forms are also available if replacing a guardian is not an urgent priority). A Court Monitor will be sent in to investigate how the guardian is handling the ward’s assets and property, as well as the ward’s general wellbeing. If it is found that the court needs to intervene and remove the guardian from his or her duties, they will enter the appropriate orders.
Professional and public guardian services are available if a new guardian needs to be put in place but no current family members or loved ones can fulfill the duties of guardian. You may also want to look into alternatives to guardianship.
Bottom line: it is definitely possible to remove or replace a guardian who has negatively affected your loved one’s health and assets.
About the Author:
Christopher Q. Wintter is the President of Wintter & Associates, P.A. , a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.