Guardianships are seen as a last resort to make sure a loved one has the care and support they need when they can’t manage their own affairs. But what happens when a guardianship is no longer needed or a guardian isn’t doing a good job? How can you end a guardianship?
A guardianship is a tool used when a medical issue, chronic condition, or injury leaves a loved one without the ability to make decisions about their own care or handle their own financial affairs. It isn’t usually required if an able-bodied person has created power of attorney or health care surrogate documents ahead of time. However, when the illness or medical condition comes on suddenly, before the person has an opportunity to create an estate plan, or is a lifelong condition, family members may need to petition the Florida probate court for guardianship.
Once a probate judge has determined the person is incapacitated, that person becomes a “ward” and the judge will appoint a guardian to handle their affairs. Guardianships can be:
A guardianship of a minor automatically ends when the child reaches the “age of majority” on their 18th birthday. At that point, the child becomes legally able to manage their own affairs. A guardianship of a minor’s property terminates at the same time, and the guardian must distribute the funds to the child after the child, or their guardianship attorney, files a petition with the court to discharge the guardian and authorize that distribution.
In some cases, a legal or biological parent who has given up custody of a child to a guardian will try to terminate that guardianship of a minor before the child comes of age. (This is different from a custody dispute between the parents or a family court’s custodial award to a third party.) If the child’s guardian does not agree to end the guardianship, it will be up to the parents to file a petition in the probate court and show what has changed to make them capable of providing for the child’s needs now when they weren’t able to before.
A guardianship is a state legal proceeding. The authority to act as guardian granted by a Florida probate judge only applies to residents of that state. Often, a ward’s adult child or other relative takes on the role of guardian, even when that relative lives out-of-state. But if that guardian wants to permanently take the ward out of Florida – say to move them into their own home to better provide care – the guardianship will not automatically follow.
A guardian must ask the Florida probate court’s permission before moving their loved one out of state. This is called a domiciliary residence change. You will then need to petition that new state to accept the transfer of the Florida guardianship before the Florida court will agree to end its supervision of the guardianship. Once the new state accepts the case, the guardianship will be transferred, making certain there is no gap in your ability to care for your loved one’s affairs. Coordinating two states’ court systems can be complicated, so be certain you speak with an experienced guardianship attorney before trying to move a ward out of state.
In other cases, it’s not the guardianship itself that is the problem, it is the person appointed as guardian. When a guardian fails to meet their fiduciary duty to care for the ward, or no longer wants to serve in the position, any interested party – often another family member – can petition the court to have the guardian removed and a new guardian appointed.
In general, legal guardianship for adults with disabilities continues until terminated by the court. Even in limited guardianship cases where the person’s reduced capacity is expected to be temporary, the ward – or their guardianship lawyer – or any other interested person, will need to file a “Suggestion of Capacity” to terminate temporary guardianship and prove that it is no longer needed.
Before ending a guardianship, the Florida probate court will need to be convinced that the ward has been “restored to capacity” – that they are able to handle their own affairs once again. This will usually involve a physical and mental examination by one or more doctors assigned by the court. If the examining physician determines the ward has full and complete mental capacity, they will recommend the guardianship be terminated. If the court agrees with the recommendation it will enter an order restoring the ward’s rights and terminating the guardianship.
Ending a guardianship can sometimes be more difficult than getting one established in the first place, especially when the guardian doesn’t want to release control over the ward. At Harrison Estate Law, P.A., our Florida guardianship attorneys can help you investigate a guardian’s actions, file the necessary petitions in court, and prove your capacity to care for yourself. We will help you protect your loved one, or restore your rights. Contact us here or call 352-559-9828 to get help today.