Less Restrictive Alternatives
Guardianships and Guardianship Litigation in St. Petersburg, Clearwater, Tampa, Sarasota, Pinellas County and surrounding West Florida areas.
A Court determination that an individual is incapacitated does not automatically mean that the Court will appoint the person a guardian. If a proposed Ward is determined to be incapacitated, the Court then shifts to the appointment stage of the guardianship proceedings. During this “appointment hearing”, the Court will consider whether there are any “less restrictive alternatives” to the imposition of a formal guardian. These less restrictive alternatives usually come in the form of advanced directives entitled Durable Power of Attorney and/or Declaration of Health Care Surrogate. The existence of an advanced directive supports the argument that a guardian should not be appointed, as third-party individuals are already in place to meet the presumed needs of the incapacitated person. While advanced directives are a defense to a formal guardianship as being a less restrictive alternative, their mere existence are by no means conclusive on the Court, as the named power of attorney and/or health care surrogate are often either unwilling or incapable of serving; or even worse, abuse or mismanagement of their roles might be the reason a guardianship is necessary.
If you are considering filing a guardianship, or are otherwise involved in pending guardianship litigation, please contact our office, as our attorneys routinely handle guardianships, contested guardianships and guardianship litigation in the courts of St. Petersburg, Clearwater, Tampa, Sarasota, Pinellas County and the surrounding West Florida areas.