A Roadmap to Contested Guardianship in Florida

Devon S. Richards
Oct. 2, 2025
Guardianship book with gavel on top.

What to Expect in Contested Incapacity and Guardianship Proceedings in Florida

In Florida, contested incapacity and guardianship proceedings often arise when family members disagree about whether a person is truly incapacitated, whether a guardian should be appointed, or who should serve as the guardian. These cases are emotionally charged, procedurally fast-paced and complex, and legally significant. Understanding what to expect can help families prepare and make informed decisions during a difficult time.

What Is a Guardianship?

Guardianship is a legal process through which a court appoints someone (a guardian) to exercise legal rights on behalf of another person (the ward) who has been legally determined to be incapacitated to make decisions concerning their person, their property, or both. Incapacity means that the person cannot manage their own property, healthcare, or personal affairs due to mental or physical limitations.

Step 1: Filing a Petition

The process begins when someone files two documents with the probate court:

  1. Petition to Determine Incapacity

  2. Petition for Appointment of Guardian

The petition to determine incapacity must include detailed facts supporting the claim of incapacity.  A separately-filed petition to appoint a guardian summarizes the basis for the need to appoint a guardian, who should serve in that role, and why any less restrictive alternatives are insufficient under the circumstances.  Importantly, all guardians in Florida are required to be represented by a Florida licensed attorney.

Step 2: Appointment of an Examining Committee

Once the petition is filed, the court appoints a three-member examining committee, usually made up of at least one physician and two other individuals who have relevant training (such as a psychologist, nurse, or social worker) as required by the Guardianship Code.  Each committee member independently evaluates the alleged incapacitated person (AIP) and files a written report with the court.

Step 3: Court-Appointed Attorney

The Court appoints an attorney to represent the AIP in the incapacity proceedings. This ensures that the person’s rights are protected and their best interest is represented throughout the process.

Step 4: Hearing on Incapacity

If any of the examining committee members find that the person is incapacitated, the court will schedule a hearing. At the hearing:

  • The judge considers the reports of the examining committee;

  • Testimony may be presented by doctors, family members, and other witnesses;

  • The AIP has the right to attend, present evidence, and testify if they believe they are not incapacitated.  The AIP also has a right to remain silent if he/she so chooses.

If the court finds the person is not incapacitated, the petition is dismissed. If the person is found to be partially or totally incapacitated, the court will proceed to determine whether less restrictive alternatives to a guardian exist or whether a guardian is necessary and, if so, who the guardian(s) should be.

Contested Guardianship

When disputes arise in the incapacity and guardianship proceeding, what can be a straightforward legal process evolves into a contested guardianship proceeding.  For example, the AIP or other family members may disagree that the AIP is incapacitated.  Or, the AIP or other family members may believe that other legal instruments, such as Durable Powers of Attorney, designation of healthcare surrogates, or a trust, are adequate less restrictive means to appointment of a permanent guardian.  Finally, if it is determined that a guardian is needed, the parties may argue over who is best fit for that role.

Common Grounds for Dispute

Contested incapacity or guardianship proceedings often involve:

  • Disagreements over whether the person is truly incapacitated;

  • Allegations of undue influence or elder exploitation;

  • Concerns about a proposed guardian’s fitness or motives; and

  • Conflicts between family members, especially in blended families.

What to Expect in a Contested Case

These cases are deeply adversarial. You should be prepared for:

  • Formal discovery (requests for documents, interrogatories, depositions, subpoenas)

  • Expert testimony (medical evaluations, capacity experts)

  • Evidentiary hearings

  • Trial

  • Continued court involvement for ongoing oversight if a guardian is appointed.

Having experienced legal counsel is essential in contested cases to protect your loved one’s rights and to advocate effectively for your position.

Final Thoughts

Contested incapacity and guardianship proceedings are delicate, often involving both legal and emotional challenges. At ShuffieldLowman, we help families navigate these proceedings with compassion, clarity, and a firm understanding of Florida law. Whether you're concerned about the well-being of a loved one or facing a contested petition, our experienced attorneys are here to help guide you through each step of the process.

Contact us today to schedule a consultation and protect the interests of those who matter most. If you have any questions or if you would like to speak with an attorney about the content of this article, please contact Devon S. Richards.