Florida law provides a process for a person to take over the legal rights of another person who is incapacitated. This is known as a guardianship. If guardianship ever becomes an issue for yourself or any of your loved ones, you will need to know the basics. In addition, you will need the representation of a Florida estate planning attorney with guardianship experience.
How is a Guardian Appointed?
The guardianship process begins in Florida when a person files a Petition to Determine Incapacity. The petition must be filed in the probate court of the county where the incapacitated person lives. It must state the grounds for the petitioner’s belief that the person should be examined.
After a court hearing, the court will determine the AIP is actually incapacitated if the court determines there is clear and convincing evidence that (1) the person is incapacitated and (2) there is no alternative to a guardianship.
How is Incapacity Determined?
An incapacitated person may be an adult the probate court determines is unable to manage his or her personal or financial affairs. Alternatively, a minor may be deemed incapacitated if, for example, the minor’s parents die or become incapacitated.
In the event the alleged incapacitated person is an adult, the court will appoint an examining committee after the petition for determination of incapacity is filed. The committee will be composed of various health professionals, social workers or other experts. Each member of the committee must examine the alleged incapacitated person (AIP), then submit a report and finding to the court. These reports will be the bulk of the evidence considered by the probate judge in determining incapacity.
Who Can be Appointed Guardian?
The person who acts as guardian over the incapacitated person, now known as the “ward”, does not need to be related to the ward. In fact, the guardian can be any person who is fit and qualified to act as guardian. However, the court must give preference to the ward’s relatives, whether related by blood or marriage.
Florida statute provides the basic qualifications for a guardian. Factors in the appointment decision include the guardian’s education, the guardian’s ability to manage finances, and the expressed wishes of the ward.
What is the Guardian’s Role?
The exact nature of the guardian’s role and duties depend on the type of guardianship. A Florida guardianship may be a (1) guardianship of the property or a (2) guardianship of the person.
Guardianship of the Property
A guardian of the property must manage and safeguard the ward’s assets. The guardian must file an initial inventory of assets with the court. Then those assets are placed in the name of the guardianship. The guardian must file annual accountings with the court. The guardian of the property may also prosecute legal actions on behalf of the ward, as well as defend the ward against legal actions.
Guardianship of the Person
A guardian of the person must make major life decisions for the ward. These decisions include residence, visitation, medical care, and other matters related to the ward’s general welfare.
A Florida Estate Planning Attorney Can Assist with Guardianship Issues
In a Florida guardianship administration proceeding, the guardian must be represented by an attorney. To consult with a Florida estate planning attorney experienced in guardianship proceedings, contact our office today.
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