How to Fight Back Against a Guardianship

Category: Guardianship

How to Fight Back Against a Guardianship in Florida

For some  adults, watching their parents grow older can be the most difficult part of middle age. As the years roll on, it’s natural for sons and daughters to want to react to their parents’ aging in the most supportive and helpful ways possible. Sometimes, this desire to help can manifest as an appeal for guardianship—the safest way to ensure that a parent is well taken care in his or her old age.

Sometimes, though, middle-aged adults can be a little over-eager. It’s a difficult concept for sons and daughters to grasp, but sometimes, elderly parents are fully capable of taking care of themselves even as they hit 80 or 90 years old, and help—or guardianship—just isn’t necessary.

The Florida guardianship lawyers at Wintter & Associates understand that a person’s independence is critical and worth defending. If you find yourself facing the too-good intentions of over-eager children, there are some steps you can take to contest their efforts for guardianship.

The Process of Legal Guardianship

Obtaining legal guardianship is a long and complex process. In Florida, the process is divided into three parts, each of which can be time-consuming and exhausting. Therefore, avoiding the process unless it is absolutely necessary will not only benefit you, it will benefit all those who would have otherwise been dragged through long and trying legal proceedings.

If you feel as though someone is infringing upon your rights and trying to declare you incapacitated when you feel perfectly capable, there are steps that you can take to prove your own capacity. According to Florida law, any alleged incapacitated person has the following rights:

  1. The right to remain silent and refuse to testify at the hearing
  • The person may not be held in contempt of court or otherwise penalized for refusing to testify
  • Refusal to testify may not be used as evidence of incapacity
  1. The right to testify
  • The person may present evidence
  • The person may call witnesses
  • The person may confront and cross-examine all witnesses
  • The person may have the hearing open or closed as she or he chooses

Luckily, Florida courts recognize that an individual’s independence is one of the most important things in his or her life. As such, Florida courts are usually hesitant to hand over guardianship of an elderly individual, especially if the alleged incapacitated person can demonstrate that he or she is coherent, capable of understanding and communicating, and seemingly fit to take care of him or herself.

Your Independence is Worth Fighting For

Florida Guardianship Lawyer


Even though courts recognize the importance of independence, it is also their job to look out for the best interests of the alleged incapacitated individual. Because the process of contesting guardianship can be complicated and always varies from case to case, it should be taken very seriously. If you feel that you are truly capable of taking care of yourself and you are willing to go to court to defend yourself, it’s important that you have a knowledgeable guardianship attorney on your side throughout the process.

While it can be difficult and emotionally trying to have to go up against your own family members in court, your rights are worth fighting for. On the flip side, well-meaning family members seeking guardianship should be aware of the ways that their elderly relatives can fight back against the action, because it may cause them to reassess or better prepare if they believe that a fight may be coming.

For guidance and support in dealing with the all the aspects of contesting an appeal for guardianship, contact Wintter & Associates today.

About the Author:

Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 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 for 2011 and 2012 in Estate and Trust Litigation.