Protecting the Rights of Your Loved One in Contested Guardianship Cases
When guardianship proceedings are filed in Orlando, emotions often run high—and so do legal stakes. Whether you’re concerned that a petition for guardianship is unjustified or you believe someone has filed for guardianship with the wrong intentions, knowing how to properly challenge a guardianship petition is critical.
I’m Beryl Thompson-McClary, a Guardianship Attorney in Orlando, Florida. I represent clients throughout Orange County on both sides of guardianship disputes. Whether you’re trying to stop a petition that could take away a loved one’s independence, or you’re defending a guardianship you believe is necessary, I’m here to guide you through the process.
You can schedule a consultation with my office by calling 1-888-640-2999. I do not offer free consultations, but I offer strategic, straightforward legal advice based on decades of experience. Let’s take a closer look at how to challenge a guardianship petition under Florida law—and what you need to know to protect your rights and your loved one’s future.
What Is a Guardianship Petition in Florida?
Under Florida law, a guardianship petition is a formal request filed in court asking a judge to declare an adult (or minor) legally incapacitated and to appoint someone to make personal, medical, or financial decisions for them. The process is governed by Florida Statutes Chapter 744, which covers guardianship law from start to finish.
The petitioner—the person filing for guardianship—must demonstrate that the proposed ward lacks the capacity to manage some or all aspects of their life. This is done through a separate petition to determine incapacity, followed by a hearing and the potential appointment of a guardian.
But not every guardianship petition is valid. In some cases, petitions are filed prematurely, without medical support, or with improper motives—such as control over finances, isolation of the ward, or family conflict.
Who Can Challenge a Guardianship Petition?
Under Fla. Stat. § 744.331(6), any “interested person” has the legal right to challenge a petition for guardianship. An interested person could be:
- A close family member (adult child, sibling, spouse)
- A trusted friend or caregiver
- A financial advisor, trustee, or power of attorney holder
- The person who is the subject of the guardianship proceeding
I work with individuals who are challenging guardianship petitions because they believe the proposed guardian is not suitable, or because the ward still has the capacity to make their own decisions. I also represent proposed guardians whose efforts are being unfairly contested.
Grounds to Challenge a Guardianship Petition
To challenge a guardianship petition, we must present valid legal grounds. Common reasons include:
- The person is not incapacitated
Under Fla. Stat. § 744.102(12), incapacity means the inability to manage at least some property or meet essential health and safety requirements. If the proposed ward can still manage these decisions with or without support, they may not meet the legal threshold for guardianship. - Less restrictive alternatives exist
Florida law requires courts to consider whether there are less restrictive alternatives than guardianship—such as power of attorney, advance directives, trusts, or supported decision-making. If these tools are in place and functioning, a court may deny the petition. - The petitioner is unfit or has a conflict of interest
Sometimes the person filing for guardianship has questionable motives—such as gaining access to the ward’s assets. Other times they lack the knowledge or stability to act in the ward’s best interest. - Procedural defects in the petition or medical examination
A guardianship case must include evaluations by a panel of medical professionals. If these reports are incomplete or improperly conducted, the petition can be challenged on procedural grounds.
The Legal Process of Challenging a Guardianship Petition
Challenging a guardianship petition requires timely and strategic action. Here’s how it typically unfolds:
- Notice and Filing
You’ll receive notice that a petition has been filed. You must then respond with an objection or counter-petition, often supported by documentation and legal argument. - Filing a Written Objection
Under Fla. Stat. § 744.331(5), you have the right to file written objections to the petition or the findings of incapacity. These must be filed before the court rules on the case. - Medical Examination and Reports
The court will appoint an examining committee. If you disagree with the results, you can request an independent evaluation or question the committee’s findings at the hearing. - Court Hearing
At the incapacity hearing, the court will hear evidence from both sides. This is your opportunity to argue that guardianship is not necessary or that a different guardian should be appointed. - Appeal or Reconsideration
If the court grants the petition despite your objection, you may be able to appeal the decision or file a petition for reconsideration, especially if new evidence becomes available.
As your Orlando Guardianship Attorney, I will ensure that every procedural step is taken and that the judge hears your side of the case clearly and persuasively.
Challenging the Appointment of a Specific Guardian
Even if guardianship is appropriate, you may object to the person being appointed. Florida law allows any interested party to petition the court to reconsider the proposed guardian’s qualifications under Fla. Stat. § 744.312.
Factors the court may consider include:
- The proposed guardian’s history with the ward
- Criminal or financial misconduct
- Potential for undue influence
- Availability of alternative candidates
I’ve represented clients who sought to replace an unfit guardian with a trusted family member, and I’ve defended proposed guardians against false claims of misconduct.
What If the Ward Wants to Object?
The person at the center of a guardianship proceeding—the alleged incapacitated person—has full legal rights to object. They may hire an attorney, present evidence, cross-examine witnesses, and propose less restrictive alternatives. I’ve helped many individuals assert their right to autonomy and avoid unnecessary guardianship by demonstrating retained capacity or presenting estate planning documents already in place.
Consequences of a Contested Guardianship
Guardianship challenges can become emotionally charged. The consequences of the court’s ruling are serious:
- If the petition is dismissed, the person retains full legal rights.
- If the court grants limited guardianship, some rights are removed but others remain.
- If plenary guardianship is granted, the person may lose all legal capacity.
For this reason, I always encourage clients to prepare thoroughly, understand the law, and act quickly. These are sensitive cases, and they must be handled with precision and care.
Call My Office for Strategic Legal Guidance
Whether you’re fighting for a loved one’s independence or defending your right to serve as guardian, the law is complex—but you don’t have to face it alone. I represent clients across Orange County in guardianship objections, disputes, and removal actions.
If you’re dealing with a contested guardianship case in Florida, I invite you to schedule a consultation by calling 1-888-640-2999.
Guardianships in Florida Frequently Asked Questions
How long do I have to challenge a guardianship petition in Florida?
You typically must act quickly. Once you receive notice of the guardianship proceedings, you can file a written objection before the incapacity hearing takes place. Failing to respond could mean losing the right to contest the petition or appointment.
Does the person alleged to be incapacitated have a right to fight the petition?
Yes. The alleged incapacitated person has the right to attend the hearing, hire an attorney, and object to the petition. They can also propose less restrictive alternatives and request a re-evaluation. Florida law ensures these rights are protected throughout the process.
Can I challenge only part of the guardianship petition?
Yes. You may object to the appointment of a particular guardian without objecting to the need for guardianship itself. Alternatively, you can challenge only the extent of rights to be removed—such as financial control, but not medical decisions.
What happens if multiple people want to be guardian?
The court will evaluate all proposed guardians based on their relationship to the ward, financial responsibility, background, and ability to serve. Sometimes a neutral third party is appointed if family members are in conflict.
Can someone be removed as guardian after the appointment?
Yes. If a guardian mismanages funds, neglects the ward, or violates court orders, an interested party can petition the court for removal under Fla. Stat. § 744.474. The court will hold a hearing to evaluate whether removal is warranted.
What is the difference between limited and plenary guardianship?
Limited guardianship removes only specific rights from the ward, allowing them to retain independence in other areas. Plenary guardianship removes all delegable rights and gives the guardian full legal control. Courts must opt for the least restrictive option available.
Can I present medical evidence to support my objection?
Yes. Independent medical evaluations, letters from physicians, and psychological assessments can all support your challenge. These are especially important when contesting claims of incapacity or proposing alternative measures.
What if the proposed guardian has a criminal history?
The court considers the background of all proposed guardians. A criminal record, financial problems, or prior misconduct could disqualify someone from serving, especially if it poses a risk to the ward’s well-being or estate.
Contact Orlando Guardianship Attorney Beryl Thompson-McClary at 1-888-640-2999 For A Consultation.
If you’re facing a contested guardianship petition in Orlando, or if you need to challenge the appointment of a guardian for your loved one, I’m here to help you assert your rights and protect your family.
