People come in expecting a probate proceeding. Contested guardianships are litigation. Real litigation, with depositions, motions, evidentiary hearings, and a trial.
Jill on what the early days actually involve:
The framework is §744.331, Fla. Stat. — the incapacity proceeding. Three examining committee members are appointed. Each one independently evaluates the alleged incapacitated person and files a report. The court then holds a hearing. If two of the three reports find incapacity, the AIP is adjudicated incapacitated and a guardian is appointed.
That’s the clean version. In a contested case, every one of those steps is a battle.
Examining committee reports get challenged. The AIP’s attorney can move to strike them, depose the committee members, and put on competing expert testimony. The composition of the committee — physician, psychologist, and a third member who is usually a layperson with experience with the AIP’s condition — gets fought over before the appointments are made.
The petitioner, often an adult child, ends up testifying about the parent’s recent behavior. The other side, often a different adult child, testifies that the parent is fine and the petitioner is power-grabbing. Bank records get subpoenaed. Medical records get subpoenaed. Phone records sometimes get subpoenaed. The case file grows. The relationships in the family don’t recover.
What surprises people most is the emotional weight of testifying about a parent. You’re under oath, describing the worst version of someone who raised you, in front of a judge who has never met them. The other side is doing the same thing in the opposite direction. The parent — the AIP — is sometimes in the courtroom listening to it.
The cost is significant. Contested guardianship litigation in South Florida typically runs into the tens of thousands and sometimes higher. Some of those fees come out of the AIP’s estate if the court finds the petition was filed in good faith and the relief was necessary. Some don’t. The fights over fees become their own subset of the litigation.
If you’re walking into a contested case, the right expectation is that this will take months, that it will cost money, and that the family dynamics that led to the fight in the first place are going to get worse before they get better. The lawyers who handle these cases well don’t pretend otherwise.