Guardianship

When someone is unable to manage their own affairs and they do not have any advance directives such as a Durable Power of Attorney or Health Care Surrogate, a court can make a determination of capacity and order a guardianship on behalf of that person. Once a guardian is appointed, that guardian will make most or all of the decisions of the ward’s daily life, including financial and medical decisions. A guardian is obligated by ethical and statutory rules to make decisions in the ward's best interest, while the court supervises the guardianship. With proper planning, Guardianship can be avoided before a person becomes incapacitated. Elder Law, P.A. will help you protect your wishes and your family, whether that is in naming a Pre-Need Guardian in your Estate Plan, or establishing a Trust to provide financial support. The Guardianship Process: A Brief Overview In Florida a guardian is required to have a licensed Florida attorney represent them as the guardian’s “resident agent.” There are two parts to the guardianship process. First, the determination of incapacity, and then the appointment of a guardian. Once a person is determined incapacitated, the court removes that individual’s rights to make decisions regarding their own affairs and a guardian is appointed to protect the individual. The following is a simplified overview of this process: Determination of Incapacity The court appoints an examining committee of three people: a physician, a mental health professional, and a layperson (e.g. social worker or case manager). This committee meets with the alleged incapacitated person (AIP) and they each submit a report to the court. The court also appoints an attorney for the AIP who will meet with the AIP and submit his own report to the court. If all three are unanimous that the AIP is incapacitated, the court issues an order stating so and we turn over to the guardianship proceeding. If the examining committee is not unanimous, the guardianship may be contested by the AIP’s court appointed attorney or there may be a finding for a limited guardianship instead of a plenary guardianship. Appointment of a Guardian The proposed guardian, whether a professional guardian or a non-professional guardian (such as a spouse, parent, or adult child of the AIP), submits an application to be appointed as guardian. There are several requirements that the proposed guardian must complete, including fingerprinting and background check, a credit report and completing guardianship education requirements (40 hours for professional guardians; 8 hours for non-professional guardians) A full inventory of the ward’s assets and a care plan must be submitted once appointed. Additionally, the guardian must submit an annual accounting of all assets and income as well as an annual care plan. Voluntary and Involuntary Guardianships The process explained above is typical to an involuntary guardianship, which can be the case when the AIP lacks the capacity to respond or understand what is happening, or because the AIP does have some capacity and is opposed to having someone appointed to manage their affairs. However, a mentally competent person who has trouble managing their own affairs can also agree voluntarily to a guardianship. This greatly reduces the length of time and expenses typically associated with guardianships. Limited or Plenary Guardianship The courts and the intent of the law is that the least restrictive form of guardianship is most desirable. To that end, there are two kinds of guardianships: Limited Guardianship This is appropriate when the court finds that the AIP lacks capacity in managing some, not all, of their affairs for the care of their person or property. The guardian is limited to managing specific personal, health or financial affairs as determined by the court. Plenary Guardianship This is appropriate when the court finds the AIP lacks capacity to manage any affairs and is unable to care for themselves. The guardian will make any and all decisions regarding the personal, health and financial affairs of the ward. Can a guardianship be avoided if I become incapacitated? As explained, Florida statutes and courts require the use of the least restrictive alternative to guardianship. This means that with proper estate planning, there is no need for guardianship because there will already exist less restrictive alternatives. Do not wait until it’s too late to start planning. Our attorneys at Elder Law, P.A. can assist in creating an estate plan that will help you avoid guardianship. If you are faced with the possibility of or need for guardianship, do not hesitate to make an appointment with one of our experienced attorneys, who will represent and guide you through this process.

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