How to Stop a Guardianship in Florida - Petition for Incapacity

Jeffrey Skatoff

There are certain steps that, if in place prior to the guardianship proceeding, can avoid the guardianship altogether, even if a finding of incapacity has been made. These steps include the creation and funding of a revocable living trust, the creation of a durable power of attorney, and the creation of a health care proxy. The guardianship court is required to determine whether there are lesser restrictive means to protect the incapacitated person that a full fledged guardianship. If there are such less restrictive means, the guardianship court is required to to implement them instead of the guardianship, unless certain circumstances are present (which could be financial exploitation of the incapacitated person by the person named as fiduciary in the documents).

•A revocable trust is a trust that names a successor trustee to manage one's assets in the event of incapacity. If the assets have been retitled in the name of the revocable trust, the successor trustee will immediately assume control of the assets, obviating the need for a guardianship in many cases.

•A durable power of attorney gives to a named person (the agent) the right to control the finances of the principal who is now incapacitated. A durable power fo attorney is a well recognized document under Florida law.

•A health care proxy allows another person to make medical decisions on one's behalf.

With these three documents in place, the guardianship court may avoid the appointment of a guardian.

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How to Stop a Guardianship in Florida- Petition for Incapacity