How to Remove an Appointed Guardian
The work people put into building a life and family is usually with an eye toward having the ability to retire and relax in financial security after many years of effort and sacrifice. Enjoying the last years of one’s life in comfort, while knowing the financial future of one’s family is taken care of in a well thought out estate plan, seems like the best arrangement a person can create, but there may be one crucial component missing that relates to issues that occur in later years. Unfortunately, there is no guarantee that a person’s good health will continue into their end years, not to mention the risk everyone faces of unexpected accidents throughout life. In situations where an individual becomes incapacitated due to an illness or an accident, a guardianship may be required to look after the individual’s personal and/or financial affairs. Essentially, a guardian is named when a person is determined to be incapable of providing the necessary care and attention he/she needs to adequately monitor personal health or make property/financial decisions. This arrangement is seen as a last resort as it takes away the rights of the individual. It is possible to designate someone as guardian before the need arises, which can help to alleviate the stress these situations provoke, but sometimes, despite careful planning, it is necessary to remove a guardian. A recent news story out of Miami looks at family fighting over the guardianship of an 85-year-old man after accusations of exploitation and misspent funds went flying back and forth among the man’s three daughters. Guardianship expenses are paid out of a ward’s estate, and the article notes that Florida has little oversight for how this money is spent, which opens the system up to abuse. Some counties are establishing their own programs, like Palm Beach County, aiming to reduce fraud. A discussion of the circumstances under which a guardian loses an appointment will follow below.
Because of the power a guardian has over the ward’s life and financial security, Florida courts assess the qualifications of guardian at the time of appointment or confirmation to ensure they have the necessary education and background to manage a ward and the estate. This examination is performed to guard against the possibility of the ward receiving substandard care or mismanagement of the ward’s assets due to lack of knowledge, but the flip side to checking for requisite knowledge to be a guardian is the risk the guardian may abuse the position. Consequently, grounds to request removal of a guardian mainly relate to failures to act and/or deception. Removal is decided by a court based on what is in best interest of the ward, and some of the grounds for removal include:
- fraud in obtaining the appointment;
- failure to perform necessary duties;
- abuse of power;
- waste, embezzlement, or mismanagement of the ward’s property;
- a conflict of interest between the ward and guardian;
- failure to follow court orders; and
- failure to provide an accurate and timely accounting of property sold, or to produce the ward’s assets when required.
Resignation and Termination
In addition to judicial removal of a guardian, there are two other circumstances where a guardian would lose guardianship authority – resignation and termination. A court will permit a guardian to resign if it will not place the ward in jeopardy, and once a final report is filed outlining all transactions he/she authorized and any disposition of the ward’s property. Note that resignation will not exonerate a guardian from liability for previous acts.
The second circumstance is termination. Termination occurs when:
- the ward is restored to his/her legal rights, or regains capacity;
- the guardian cannot locate the ward after diligent search; or
- for property guardianships, the ward’s property is exhausted.
Talk to an Attorney
Picking an appropriate guardian is an important decision that requires consideration of all the legal requirements and consequences. An experienced estate planning/guardianship attorney can guide you to the best choice for your circumstances. The Tampa law firm of Bubley & Bubley, P.A. will work with you to form the best arrangement for you and your family. Contact us to schedule a consultation.