What is Guardianship?
Unfortunately, there are times when a loved one may be unable to care for themselves or their property. Under Chapter 744 of the Florida Statutes, guardianship is the judicial proceeding where a circuit court can appoint a guardian who can then make legal decisions for an incapacitated person.
The incapacity of a person to exercise his or her rights must be established by clear and convincing evidence. The process begins by filing a Petition to Determine Incapacity and a Petition to Appoint Guardian. The Court will appoint a three-person examining committee to evaluate the alleged incapacitated person. Each examining committee member files a report with the Court outlining the results of their evaluation. The Court must hold an evidentiary hearing on the Petition. If the Court finds that the person is incapacitated with respect to one or more rights, the Court must first consider whether there are any alternatives to guardianship that will meet the needs of the alleged incapacitated person such as a Designation of Health Care Surrogate or Power of Attorney. If no such documents exist, the court will appoint a guardian and the alleged incapacitated person will now be referred to as the Ward.
A guardian can be any interested person over the age of 18 who has not been convicted of a felony. The court must take into account the preference of the Ward and the relationship of the proposed guardian to the Ward, but it is ultimately up to the Court to decide. If no qualified family member is available, or if there is a dispute amongst the family members that cannot be resolved, the Court may appoint a professional or a public guardian.
Depending on what rights have been delegated, an appointed guardian has a duty to:
- Prepare an inventory of the property;
- Marshal the Ward’s assets;
- Obtain court approval for all financial transactions;
- File annual reports with the court;
- Create a detailed plan for the ward’s care every year; and
- Ensure the ward’s health and well-being is maintained.
How does your Guardianship Attorney help?
Every guardian appointed in Florida must be represented by counsel. Your attorney can assist you in preparing the necessary reports and accountings and ensuring that you meet the Court deadlines. Further, because guardianship can involve every aspect of a person’s life, other issues may arise during the pendency of the guardianship that your attorney can assist with including special needs planning, real estate issues and complications in the day to day management of health and finances. Your guardianship attorney is there to guide you and support you in this most important role.
Are there Alternatives to Guardianship?
It is important to consider alternatives to guardianship before it is the only available option. Your guardianship attorney can help you with estate planning and advance directives that will help your loved ones should you become incapacitated for any reason. You can create a Power of Attorney, a Designation of Health Care Surrogate, or even a Revocable Trust in order to avoid the guardianship process. You can also designate a person to serve as your guardian in the event the need arises. You can choose someone you trust for each of the roles and discuss your wishes with them ahead of time so they know what you would want once you are unable to advocate for yourself. Contact Wintter Law for a consultation regarding Guardianship options.