Guardianship proceedings are administered in the circuit court of the county where the alleged incapacitated person resides. If someone files a petition with a basis to request an individual be declared incapacitated, the court sets in motion a process to determine whether there is partial or full incapacity and whether a guardian must be appointed. If one is declared incapacitated, the court will remove various rights of the person (the “ward”). These rights can include the right to manage assets, the right to drive, the right to vote, the right to marry, the right to make health care decisions, among others. In some cases a person may request a voluntary guardianship to allow for court supervision of his or her assets, and avoid a declaration of incapacity.
A guardian may need to be appointed in the case of a minor child, who is also referred to as incapacitated due to age. A minor child who is a beneficiary of over $15,000.00 in assets, such as being the beneficiary of a life insurance policy, cannot receive the funds outside of a court ordered guardianship. Proper planning through use of a trust is the most effective tool to avoid guardianship.
The guardian can be an individual or entity who is appointed to exercise legal rights over the person and/or property of an incapacitated or minor ward. In selecting a guardian, the judge considers numerous factors but the wishes of the incapacitated person in a written declaration of a preneed guardian is the priority consideration. Other considerations are family relationship and expressed desire of the ward. The guardian must be represented by an attorney and will have several ongoing reporting responsibilities before the court. Guardianship can be costly and without a preneed guardian, may not be a reflection of the incapacitated’s wishes for who will care for their person and property.
Florida law does look to less restrictive means to protect the person and property of the incapacitated person. The various alternatives include health care surrogate, durable power of attorney and trusts prepared and executed prior to the individual losing capacity. A written declaration of preneed guardian allows you to name an individual you choose prior to your incapacity.
There are procedures which allow for one declared incapacitated to regain part or all of their rights.