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What Is Guardianship?
Guardianship is the legal process in which a court appoints a person, the “guardian,” to take care of the personal and property rights of another person, the “ward.” There are two situations in which the court will consider appointing a guardian. The first is for a minor child whose parents either die or become incapacitated. The second is for a disabled or incapacitated adult who cannot make important life decisions on their own. In either case, the court retains supervisory powers over the guardian to ensure that they fulfill their obligations to the ward.
When a court names a guardian, this has a significant impact on the ward’s rights. Thus, the court will generally order a guardianship only when there are no less restrictive means available. Because the process of establishing another’s incapacity and getting appointed as a guardian is often complex, those seeking guardianship of a loved one should consult with a dedicated Jacksonville guardianship legal team for assistance.
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 a lawyer 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. Get a trusted Jacksonville guardianship lawyer to help you get through the complex process of guardianship.
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.
The Guardianship Process in Florida
When someone seeks guardianship over another, they must follow a three-step process.
The Petitioner Files a Guardianship Petition
Any competent adult can file a guardianship petition asking the court to appoint them as a guardian. The Florida Statutes do provide rules on who is qualified and who would have priority to serve in that role. Once they file the petition, the court will appoint an examining committee, consisting of three people. The examining committee must have at least one physician or psychiatrist.
The other two members can be made up of other physicians or psychiatrists or include psychologists, gerontologists, registered nurses, nurse practitioners, or licensed social workers. A court may even appoint a layperson “who, by knowledge, skill, experience, training or education, may advise the court in the form of an expert opinion.”
The purpose of the examining committee is to determine whether the person over whom guardianship is sought is incapacitated. The examiners will each evaluate the person alleged to be incapacitated. Evaluations include a physical assessment, a mental health assessment, and a functional assessment. Examiners can also rely on previous examinations of the person, as well as their own first-hand observations.
Once each committee member examines the person, they present the court with their final report. Among other things, the final report must contain “a description of any matters with respect to which the person lacks the capacity to exercise rights, the extent of that incapacity, and the factual basis for the determination that the person lacks that capacity.”
The court will also appoint a lawyer to represent the alleged incapacitated ward who will advocate for the ward at all hearings. The court-appointed lawyer will meet with the ward and typically issue a report to the court.
The Court Holds a Hearing
Once the examining committee members complete their reports, the court will use the reports to guide it in its decision whether the person over whom guardianship is being sought is indeed incapacitated. If the court determines the person is incapacitated, the next step is for the court to determine if there is a less restrictive means than guardianship that can provide assistance to the incapacitated person without removing their rights. Less restrictive alternatives include a durable power of attorney, a revocable or irrevocable trust, or health care advance directives.
If a person is capable of making some, but not all, of their own decisions, the court will not grant a plenary guardianship petition and may either appoint a guardian for limited purposes or use a combination of other means.
The Court Appoints a Guardian
If the court determines the alleged incapacitated person needs a guardian, it will appoint one. Depending on the ward’s level of incapacitation and their needs, the court may appoint a guardian of the person, a guardian of the property, or a guardian of both the person and property.
Guardian of the Person
A guardian of the person can exercise the personal rights that were removed from the ward by the appointment of the guardian. These rights may include the right to enter into contracts, to apply for government benefits, to initiate or defend against a lawsuit, and to determine where they live and their social environment.
Guardian of the Property
A guardian of the property can make financial decisions on behalf of the ward. However, a guardian of the property is limited in their ability to sell, mortgage, or gift property without approval from the court. The Florida Statutes provide a list of duties that can be done with and without court orders.
A plenary guardianship includes guardianship of both for both the person and property. A party who serves as a plenary guardian can make all decisions on behalf of the ward.
Who Can Serve as a Guardian?
In Florida, a detailed application is required of any person petitioning to serve as guardian. There are certain individuals prohibited from serving, such as those convicted of a felony. There is no requirement that a guardian is related to the ward. However, a guardian must complete an eight-hour training program within four months of their appointment unless they are the guardian of a minor, in which case the training program is only four hours. The judge can make exceptions to taking the program.
Responsibilities of a Guardian
A guardian’s responsibilities depend on whether the guardian is a guardian of the person, a guardian of the property, or a plenary guardian.
A few of the responsibilities of a guardian of the person include:
- Providing for the care, maintenance, education, and support of the ward;
- Assisting in their education;
- Supplying all food, shelter, and other necessities; and
- Authorizing medical care.
A few of the responsibilities of the guardian of the property include:
- Identifying, locating, and managing the ward’s assets;
- Investing the ward’s money; and
- Refraining from using the ward’s assets for their own personal gain.
All guardians must also periodically file certain reports with the court. Depending on the type of guardianship, the required reports may include an initial plan, annual plan, initial inventory, and annual accounting.
Frequently Asked Questions
Are Guardians Liable for a Ward’s Debts?
No. While a guardian may be responsible for paying a ward’s debts, they are not expected to pay out of their own pocket. The guardian pays the ward’s debts with guardianship assets.
Can You File for Guardianship Without a Lawyer?
One petitioning to serve as guardian advocate does not need to be represented by a legal team. It is generally advisable to have an attorney’s assistance. A guardian is required to be represented by an attorney. There are numerous restrictions to navigate as a guardian and an experienced guardianship attorney is highly recommended.
Contact a Skilled Jacksonville Guardianship Lawyer Today
Let the trusted legal team at Preddy Law Firm, P.A. review your situation. Discuss your case with an experienced Jacksonville Guardianship attorney. Let us help you know what legal steps to take to in order to protect your loved one. Call us directly or contact our lawyer online to set up an appointment.