My Elderly Parent Needs a Guardian, but Won’t Sign Over Guardianship to Me.

How Can I Get Them the Help They Need?

When we think about how we are aging compared to earlier generations, 40 may be the new 30, but 80 is still 80. As we age, we are more likely to develop health problems that impact our ability to live independently, which includes our ability to handle our own medical needs and financial affairs. According to the National Institutes of Health, “24.2 percent of people 80 to 89, and 37.4 percent of those 90 years or older, were estimated to have some type of dementia”. [1]

If you are watching as dementia, or other health problems, impact your parent’s ability to make sound decisions, you may be wondering how you can legally take control of their medical and financial decisions to protect them from themselves, as well as from scammers. If your parent does not have their advance directives – such as a Durable Power of Attorney or Healthcare Surrogate – before they become incapacitated, the only recourse is to attempt to become the legal guardian over your parents.  This requires seeking the advice of a legal professional to file the necessary Petitions to have you appointed as guardian.

To be named as a guardian, you must:

• Be at least 18 years old
• Complete a background check and not be convicted of a felony
• Be a Florida resident (in some cases)
• Take a course on the duties of a guardian
• Be capable of fulfilling the requirements of the guardian

The Guardianship process is broken down into two cases: (1) Incapacity Determination; and (2) Appointment of a Guardian. Your attorney will file a Petition to Determine Incapacity with the Court which seeks to determine if, in fact, your parent lacks the capacity to handle their decision making. If your parent (or another relative, such as a sibling) does not believe they need a guardian, they can attend the hearing and contest the action. The Court will assign an attorney to them to represent their interests.

The Court will appoint a three-person examining committee, at least one member of which will be a doctor, to evaluate your parent’s mental capabilities. Based on their evaluation, the committee will develop a report about your parent’s mental fitness and submit it to the Court. The Court will then issue an Order determining the level of capacity of your parent, as well as a recommendation if a guardian is needed, and if so, which areas the guardian would manage. The Court may find that your parent is capable of managing their health, but needs a guardian for their finances. Alternatively, they may need a guardian to make health decisions for them while they still control their finances. In many cases, the Court may find that a guardian is needed for both medical and financial decisions.

If the Court finds that your parent needs a guardian, then they will consider the Petitions for Appointment of Guardian currently pending before the Court. If this Petition is uncontested, the Court will name you as the guardian if you are otherwise qualified to serve under Florida law. If your parent or a sibling prefers that someone else be named as the guardian, this process can take longer.

Becoming your parent’s guardian is an emotionally draining process, and expensive, if done without an experienced legal team. The compassionate and efficient attorneys at Huth, Pratt & Milhauser are here to guide you every step of the way. Contact us today so we can help you help your loved one.

Huth, Pratt & Milhauser

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HPM is a specialized law firm that offers a wide range of legal services in the specialty areas of Wills, Trusts, Estates, Probate and Guardianship for planning, administration, and litigation. The experience and skills of our attorneys and staff, coupled with our knowledge of applicable law, enable us to provide exceptional representation to our clients.

We proudly serve clients throughout the country and around the world from our Boca Raton, Florida office. We strive to provide superior and focused counsel in a timely manner and at a competitive price.

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[1] National Institutes of Health. One in Seven Americans Age 71 and Older Has Some Type of Dementia, NIH-Funded Study Estimates | National Institutes of Health (NIH). Accessed March 27, 2025.