When Siblings Fight Over a Parent: How Florida Courts Resolve Contested Guardianship

Eleanor's Story: Two Petitions, One Mother

Eleanor is 83 and lives alone in a modest Orlando home she has owned for four decades. (Eleanor is a composite drawn from patterns I see often in my practice, not an actual client.) Her son Greg, who lives nearby and helps with groceries and doctor visits, grew worried after Eleanor missed two mortgage payments and gave a large sum of money to a caller she'd never met. He filed a petition asking the court to find her incapacitated and appoint him as guardian. Six days later, his brother Paul, who lives out of state but talks to Eleanor by phone every week, filed his own petition, convinced that Greg was maneuvering to take control of their mother's house and savings.

Under Chapter 744, Florida Statutes, a guardianship is a court process that appoints someone to make decisions for a person a judge finds incapacitated, and Florida law requires the court to use it only when less restrictive options will not work. Eleanor's case shows what happens when that basic framework collides with two adult sons who no longer trust each other.

Eleanor Gets Her Own Lawyer, Not Theirs

The first thing the court did in Eleanor's case was appoint an attorney to represent Eleanor, not Greg and not Paul. This is one of the most misunderstood parts of Florida guardianship law. The alleged incapacitated person has an independent right to counsel, and that lawyer's job is to advocate for what Eleanor actually wants, not for whichever son seems more sympathetic or more organized in the paperwork.

Eleanor was also entitled to hire her own attorney instead of accepting the court-appointed one, and to request a jury trial on the question of her capacity. Her court-appointed lawyer met with her privately, away from both sons, to hear her actual preferences: she did not want to lose her home, she was frightened of both boys arguing in front of her, and she wanted whoever helped her to also let her keep making her own small decisions, like what to eat and when to see friends.

The Examining Committee and Discovery

Within days of the petition being filed, the court appointed a three-member examining committee, as Chapter 744 requires. One member must be a psychiatrist or other physician, and the others come from qualified professional backgrounds. Each committee member examined Eleanor separately and filed a report addressing her cognitive function, her ability to manage her finances, her ability to make health care decisions, and which specific rights, if any, should be removed.

Meanwhile Greg's and Paul's lawyers began discovery: financial records, medical records, even Eleanor's bank statements showing the wire to the stranger who had called her. Discovery in a contested guardianship can be extensive, because the court needs a full picture before deciding whether guardianship is even necessary, and if so, who should serve.

• If two of the three committee members conclude the person is not incapacitated, the petition is dismissed.
• If incapacity is found, the court must still identify which specific rights are affected, not assume total incapacity.
• The court must separately consider whether a less restrictive alternative, such as a durable power of attorney, health care surrogate, trust, or a pre-need guardian designation, would adequately address the problem.

The Conflict Nobody Wants to Say Out Loud

Once the committee confirmed that Eleanor did have some diminished capacity around financial decisions, the real fight began: who should be guardian. Greg argued that his daily involvement made him the natural choice. Paul argued that Greg's proximity to Eleanor's finances, including check-writing privileges Eleanor had given him years earlier, created a conflict of interest that made him unsuitable.

Florida law does not reward whoever asks first or whoever is loudest. The judge weighs each brother's actual involvement, his financial history, any conflicts, and Eleanor's own expressed wishes as reported by her attorney. In situations like this, the court has several real options: appoint Greg, appoint Paul, appoint both as co-guardians, appoint neither and instead name a neutral professional guardian registered with Florida's Office of Public and Professional Guardians, or find that guardianship is not needed at all.

Fees, Mediation, and Who Pays

Contested guardianships are not cheap, and the money to pay for the fight generally comes from the ward's own assets. Eleanor's estate was on the hook for the examining committee's fees, the bond premium, and legal fees for her own attorney. Under Section 744.108, a guardian's attorney is entitled to reasonable fees from the guardianship estate for services that genuinely benefit the ward, but a petitioning sibling is not automatically entitled to reimbursement just for filing. If a petition is later found to have been brought in bad faith, that petitioner can be ordered to pay the other side's fees personally rather than draining Eleanor's savings.

Many Florida courts push contested guardianship cases toward mediation before trial, and Eleanor's case was no exception. After several months and mounting legal bills on both sides, Greg and Paul sat down with a mediator and Eleanor's attorney. The result was a compromise neither brother would have chosen on his own: a professional guardian was appointed as guardian of Eleanor's property, to manage her accounts and pay her bills with full transparency to both sons, while Greg was named guardian of her person, handling day-to-day care decisions since he lived nearby. Paul retained the right to receive copies of every annual report and inventory filed with the court, so he was never shut out of information again.

What Would Have Kept Eleanor Out of Court

Eleanor's situation is common enough that I see some version of it every year, and it is almost always preventable. If Eleanor had signed a valid durable power of attorney naming one son (or both, jointly) years earlier, or had created a revocable trust with a clear successor trustee, or had signed a pre-need guardian designation stating who she wanted to serve if she ever became incapacitated, the court would have been required to consider that document as a less restrictive alternative before appointing anyone. A pre-need designation in particular does not stop a guardianship petition from being filed, but it tells the judge exactly who Eleanor trusted, which sharply narrows the fight and often eliminates it.

None of these tools requires a family to agree on everything. They simply put the decision where it belongs: with the parent, made while she still had full capacity to choose.

This article is for general informational purposes only and does not constitute legal advice, nor does reading it create an attorney-client relationship. Florida estate, elder, probate, and real estate law are fact-specific and change over time. Consult a licensed Florida attorney about your individual circumstances. Arthur Simpson, Esq. is licensed to practice law in the State of Florida. Attorney advertising.