Guardianship Lawsuits and the Right to Marry

Does a Ward have a right to marry? If you are a Florida guardianship lawyer, or a family member involved with an aging or fragile adult who is subject to a guardianship, you will want to read the Fourth DCA’s March 2,2016 opinion in the Smith case.

Florida Guardianships and Loss of Rights

Florida guardianship litigation seems to be exploding,Therefore, guardianship matters have become a very important part of our probate practice in West Palm Beach. Guardianship matters are taken very seriously by Florida probate courts, as we are talking about removing people’s rights.Probate Statute 744.3215 lists the rights of a person determined to be incapacitated.Is there any way to avoid a guardianship and having my rights taken from me?Florida guardianship attorneys know that, if you have an estate plan, you may be able to draft around a guardianship and properly avoid a guardianship.

Smith v. Smith

This guardianship case dealt with a marriage between a person and a Ward.Here, a gentleman was declared to be incompetent or incapacitated.Court appointed counsel was appointed to represent him, and rights were taken away from him.In Florida, if someone is found to be incapacitated or incompetent, a probate court judge will determine what rights should be removed from a Ward and what rights a Ward may retain.Here, the Ward’s right to contract was “subject to court approval.”Therefore, the court removed his right to marry, which is very common in a Florida guardianship setting.The Ward and the appellant married without the court’s consent, and the guardian of the Ward petitioned to annul the marriage.The guardian was successful in his petition and the marriage was annulled.Click here to read the entire case.