Does The Incapacitated Person Have Any Say In Choosing The Guardian?

Attorney Kellen Bryant explains the rights of alleged incapacitated persons in guardianship proceedings and how their wishes factor into guardian selection.

When someone faces a guardianship proceeding, one of the most important questions is whether they have any voice in who will be appointed as their guardian. This is a fundamental question about personal autonomy and legal rights in what can be one of life’s most challenging situations.

Understanding the Legal Framework

The person subject to the incapacity proceeding is the “alleged incapacitated person.” This legal term is important because it recognizes that until the court makes a determination, the person retains their legal rights and status.

Rights During the Guardianship Process

If found incapacitated, he or she has the right to attend any hearings and even give testimony to the judge.

These rights include:

• Right to be present at all court proceedings
• Right to testify and present their views to the judge
• Right to legal representation
• Right to express preferences about guardian selection
• Right to object to the guardianship or specific guardian choices

The Court Must Consider Their Wishes

One of the factors in the Florida statute states that the court shall consider the wishes expressed by an incapacitated person as to who shall be appointed guardian.

This means:

• The court is legally required to consider the person’s preferences
• Their wishes are an official factor in the decision-making process
• The judge must give weight to their expressed preferences
• Their voice cannot be ignored in the proceedings

When Wishes May Not Determine the Outcome

However, those wishes may or may not be the final determining factor.

There are important circumstances where the court may override the person’s preferences:

Mental Impairment Affecting Judgment

Sometimes the ward may have a mental impairment as to choosing who is the right person to act in their best interest.

Examples include:

• Dementia affecting judgment about trustworthy individuals
• Mental illness that impairs decision-making capacity
• Cognitive decline that affects ability to assess character
• Delusions or paranoia that distort perceptions of family members

Protection from Abuse

Sometimes a guardianship is done because the person that the ward may choose to select is, in fact, the abuser who we are seeking to protect the ward from.

This protective aspect addresses situations involving:

• Financial exploitation by the preferred person
• Physical or emotional abuse
• Manipulation or undue influence
• Neglect of the person’s needs

In these cases, the court’s primary duty is to protect the vulnerable person, even if it means overriding their expressed wishes.

Factors the Court Considers

In addition to the incapacitated person’s wishes, Florida courts consider:

• Best interests of the incapacitated person
• Qualifications of proposed guardians
• Relationship between the proposed guardian and the ward
• Physical and mental capability to serve as guardian
• Financial responsibility and integrity
• Any conflicts of interest
• Evidence of abuse or exploitation

The Balancing Act

Guardianship law tries to balance several competing interests:

Respecting Autonomy

• Acknowledging the person’s right to have preferences
• Considering their expressed wishes
• Preserving as much self-determination as possible

Ensuring Protection

• Protecting from exploitation or abuse
• Ensuring competent management of affairs
• Prioritizing the person’s safety and wellbeing

Practical Implications

Understanding these principles has important practical implications:

For Family Members

• The incapacitated person’s preferences will be heard by the court
• Those preferences carry legal weight in the decision
• However, preferences may be overruled if not in the person’s best interests

For the Alleged Incapacitated Person

• You do have a voice in the process
• The court must listen to your preferences
• Your safety and wellbeing are the court’s primary concerns

For Potential Guardians

• The person’s preference for you helps your case
• However, you must still demonstrate qualifications
• The court will investigate your suitability regardless of preferences

When Professional Guardians May Be Appointed

Sometimes the court may appoint a professional guardian despite family preferences when:

• Family conflicts make appointment of any family member problematic
• No suitable family members are available or qualified
• The estate is complex and requires specialized management
• There are allegations of abuse against family members

The Importance of Legal Representation

Given the complexity of guardianship law and the significant rights at stake, it’s crucial that:

• Alleged incapacitated persons have competent legal representation
• Family members understand the legal standards
• All parties work with experienced attorneys

The Bottom Line

Yes, the incapacitated person does have a say in choosing their guardian. The court is legally required to consider their wishes as an important factor in the decision. However, those wishes are balanced against other considerations, particularly the person’s safety and best interests.

The goal is to respect the person’s autonomy while ensuring their protection – sometimes these objectives align with the person’s preferences, and sometimes they require the court to make difficult decisions that override those preferences for the person’s own protection.

Put your mind at ease and make an appointment to meet with the Berg Bryant Elder Law Group in Jacksonville, Florida today to understand your rights and options in guardianship proceedings.

This information is provided by Attorney Kellen Bryant. For personalized guidance about guardianship proceedings and the rights of all parties involved, consult with a qualified guardianship attorney.