How to Fight a Guardianship Petition in Florida

Phil's Story: A Nephew Files, and Phil Fights Back

Phil is 74, lives alone in a modest house near the Eau Gallie Causeway in Melbourne, and has been described by neighbors as eccentric in the way that independent Floridians often are. He collects vintage fishing reels, keeps odd hours, and has never asked anyone's permission to run his own life. Phil is a composite drawn from patterns I see in practice, not an actual client, but his situation is common enough to be worth walking through in detail.

A nephew, hoping to gain control of Phil's property, filed a petition asking a Brevard County judge to determine that Phil is incapacitated. Phil was stunned, then furious, then determined. What he wanted to know was simple: what are my rights, and how do I stop this?

Florida guardianship is a court process under Chapter 744, Florida Statutes, that appoints someone to make decisions for a person a judge finds incapacitated, and it is meant to be used only when less restrictive tools do not already solve the problem. Phil's case shows exactly how a person can push back within that framework.

The Right to Counsel, and the Right to Choose Your Own Lawyer

The moment a petition to determine incapacity is filed, the court appoints an attorney to represent the alleged incapacitated person. That appointed lawyer's only client is the person named in the petition, not the family, and not the petitioner.

What many families do not realize is that the alleged incapacitated person has the right to substitute that court-appointed attorney with a lawyer of his own choosing. This is not a courtesy; it is a statutory right under Florida's guardianship law, and Florida courts have recognized it firmly. Phil exercised exactly this right. Rather than relying on the attorney the court assigned, he called a Florida elder law attorney he trusted, and that attorney entered the case as his chosen counsel.

This matters because the attorney representing the alleged incapacitated person is expected to advocate for what that person actually wants, not simply what someone else believes is in his best interest. Once someone is later adjudicated incapacitated, the ability to freely swap counsel becomes more limited, which is one more reason this early right is so important to use.

The Examining Committee: Challenging Who Evaluates You

After a petition is filed, the court appoints a three-member examining committee to evaluate the alleged incapacitated person. This committee typically includes a mix of physicians, psychologists, gerontologists, social workers, or other qualified professionals, and their combined report is central to what the judge decides.

Phil, through his attorney, had the right to raise concerns about who sat on that committee and to request a qualified, independent evaluator rather than accept the first names put forward. He also had the right to have his own independent expert examine him and offer a competing opinion at the hearing.

• If a majority of the examining committee finds no incapacity at all, the law requires the court to dismiss the petition.
• Even where some limitation is found, the committee must address which specific rights are affected, not simply declare someone globally incapacitated.
• The alleged incapacitated person has the right to be present at these evaluations and to have counsel involved in the process.

In Phil's case, the independent evaluation his attorney arranged found him fully capable of managing his own affairs, a result that weakened the petition considerably before the hearing ever happened.

Offering Less Restrictive Alternatives: The POA and Trust Phil Already Had

Florida law requires the court to consider less restrictive alternatives before it may appoint a guardian, and this is often the single most effective defense to a guardianship petition. If a durable power of attorney, a health care surrogate designation, a properly funded trust, or a pre-need guardian designation already addresses the concerns raised in the petition, the court is not permitted to impose a full guardianship on top of it.

This is a recurring lesson in guardianship defense work: people who have signed even basic estate planning documents are often in a far stronger position to resist an unwanted guardianship than people who have never signed anything at all. Phil's earlier planning, done long before any petition was filed, became the centerpiece of his defense.

The Hearing, the Burden of Proof, and What Happened to Phil's Case

Phil had the right to be present at every hearing, to testify in his own words, to cross-examine witnesses called by the nephew, and to present his own evidence, including the independent evaluation and his existing estate planning documents. The petitioner, not Phil, carried the burden of proof, and Florida law requires clear and convincing evidence, a high standard well above a mere preponderance, before a judge may find someone incapacitated.

At the hearing, Phil's independent evaluation, the weak or mixed findings of the examining committee, and the existence of his power of attorney and trust together gave the judge more than enough reason to conclude the nephew had not met that burden. The petition was dismissed.

Phil's guardianship never happened. He kept his home, his trust, his fishing reels, and his independence, and the court record now reflects a dismissed petition rather than a guardianship order.

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.