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Methods to Avoiding Guardianship
It is possible to avoid the necessity of a guardianship through proper Florida estate planning. A good estate plan will include the following:
(i) Durable Power of Attorney;
(ii) Health Care Surrogate;
(iii) Living Will; and
(iv) Pre-Need Guardian Designation.
To a considerable extent, those documents can specify how you wish to live, and how you wish to be treated, in the event of disability. Alternatively, a court or guardian may be entrusted to make those decisions on your behalf.
Florida Guardianship administration services include:
- Preparing initial court pleadings to determine if an adult is incapacitated or for the appointment of a guardian for a minor
- Handling all court proceedings
- Preparing all guardianship pleadings for expenditures and authority to act
- Advising guardians regarding their obligations and duties
- Preparing guardianship annual accountings and reports
Incapacity Proceedings | Guardian Appointment | Disputes
A Florida guardianship proceedings is a legal process in which an individual files a petition with a Florida Probate Court requesting the authority to exercise the legal rights of an alleged incapacitated Florida resident (the “ward”). The legal proceeding is commenced with the filing of the Petitions for Appointment of Guardian and Determine Incapacity. The Petition for Appointment of Guardian asks the Florida Probate Judge to appoint someone to look out for the welfare of the alleged incapacitated Florida resident. The petition can be filed by a family member, concerned third party, or the Counties Adult Protective Services. The Florida Petition to Determine Incapacity requests the Florida Probate Judge to have the ward examined and a determination made as to his or her competency. The burden rests on the petitioner to prove that the alleged incapacitated Florida resident should be determined to be incapacitated in the court's eyes. Witnesses testimony may be required to prove the alleged incapacity. The Florida guardianship Petitions for Appointment of Guardian and Determine Incapacity are filed with the Florida Probate Court, along with an Application for Appointment as Guardian. The Florida Probate Court will then appoint an attorney to represent the alleged incapacitated Florida resident.
It may be necessary to petition a court to appoint a legal guardian for an individual under the following circumstances:
They lack the physical and/or mental ability to take care of their own basic needs;
They are in danger or substantial harm; and
They no individual legally authorized to assume responsibility for them (Power of Attorney or Health Care Surrogate).
How is a Person Determined to be Incapacitated in Florida? Upon the filing of a Petition to Determine Incapacity, the Florida Probate Court will appoint three individuals to examine the ward (alleged incapacitated person). One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, psychiatrist, or other physician, a registered nurse, nurse practitioner, a licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court's discretion, advise the court in the form of an expert opinion. One of three members of the Florida examination committee must have knowledge of the type of incapacity alleged in the petition. The examining committee members each meet independently with the alleged incapacitated person to evaluate his or her abilities and make a written report, which is filed with the Florida Probate Court. If the examining committee concludes that the ward is not incapacitated in any way, the Florida Probate Court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights a hearing will be scheduled to determine whether the person is totally or partially incapacitated.
The Rights of the Alleged Incapacitated Person The Florida guardianship process commences with the filing of (i) a Petition to Determine Incapacity; and (ii) Petition for Appointment of a Guardian. Once they are filed the court will appoint a three-person examining committee to perform an examination of the alleged incapacitated person. Once all of the examinations are completed, a hearing will be conducted to determine capacity, whether less restrictive alternatives to guardianship are available and whether any of the individual’s legal rights should be removed and appointed to a guardian.
Who May Serve as Guardian? Any adult resident of Florida can serve as guardian, as can certain institutions. A close relative of the ward who does not live in Florida can also serve as guardian. An individual who has been convicted of a felony or who is so ill they can’t do the job cannot be appointed. Unless their is a family dispute, the Florida Probate Court will rarely reject the recommendation of the incapacitaed individuals family members. In some cases, two or more parties may want to be appointed as the Florida Guardian. This is typical in family situations and also when the State files a petition. The immediate family can also file what is termed a “Competing Petition for Guardianship”. The proceedings are then considered adversarial. The Florida Probate Court will then listen to evidence from both parties and based upon the testimony and evidence presented will enter an order appointing the Guardian it believes best suited to serve in such a trusted/fiduciary capacity.
Appointment of Florida Guardian? If it is necessary for a guardian to be appointed, the Florida Probate Court will sign an Order Appointing the Florida Guardian and issue Letters of Guardianship (“Letters) to the appointed Guardian. The Letters will provide the Guardian with the authority (plenary or limited) to act on the ward’s behalf. The Florida Probate Court will then determine the size of the bond that will be required of the Guardian of the Property. The bond serves an insurance policy protecting the ward’s financial assets from misappropriation or misuse by the Guardian.
Role of a Florida Guardian? A Floridan Guardian's responsibilities for the incapacitated Florida resident include (i) immediate needs; (ii) appropriate housing; (iii) medical treatment if necessary; (iv) gather the Ward's assets and conduct a personal inventory; (v) Set up guardianship depository account with standing order of withdrawal for recurring expenses; (vi) submit to the Florida Probate Court initial and annual reports (Guardianship Plan and Accounting); (vii) determine if placement is appropriate; and (viii) apply, if necessary, for financial assistance benefits.
Florida Guardian of the Property: A Florida Guardian of the Property is given authority over all Florida property of the incapacitated Florida resident. They are required to inventory the property, invest it prudently, use it for his or her support, and account for it by filing detailed annual reports with the court. In addition, the Florida guardian must obtain court approval for certain financial transactions, such as selling or mortgaging Florida real property.
Florida Guardian of the Person: The Florida Guardian of the Person may exercise only those personal rights that have been removed from the incapacitated Florida resident by the Florida Probate Court and delegated to the Florida guardian. This includes providing consent for medical, mental and personal care services and to determine the place and kind of residential setting best suited for them. The Florida guardian of the person must also present to the Florida Probate Court an initial guardianship plan including provisions for medical, mental health and personal care services and the type of residential setting best suited for them every year thereafter and an accurate accounting of all assets and distributions.
Marc J. Soss, Esquire
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