Articles Posted in Guardianship

When a person cannot take care of himself or herself, a court may appoint a guardian to take care of that person and/or that person’s affairs. The person appointed a guardian is known as “ward.” A guardian has the powers and duties stated in Florida Statutes section 744.361. The Ward retains the rights stated in Florida Statutes section 744.3215.

Types of Guardianship
There are three types of guardianship: guardianship of the person, of the property, and of the person and property. The court may appoint the type of guardianship that it determines is appropriate for the ward’s incapacity.

The Guardian’s Powers and Duties
The guardian of an incapacitated person may exercise only those rights that have been removed from the ward and delegated to the guardian. The guardian of a minor has to exercise the powers of a plenary guardian. A guardian has the following duties:

  • Duty to file an initial guardianship report.
  • Duty to file a guardianship report annually.
  • Duty to implement a guardianship plan.
  • Duty to consult with other guardian, when more than one guardian has been appointed.

A guardian who is given authority over any property has the following duties:

  • Protect, preserve, invest prudently, and account faithfully for any loss in the property.
  • Perform all other duties required by law.
  • Deliver the property of the ward to the person lawfully entitled to it at the termination of the guardianship.

The Ward’s Rights
A person who has been determined to be incapacitated retains the following rights:

  • Right to have an annual review of the guardianship report and plan.
  • Right to have continuing review of the need for restriction of rights.
  • Right to be restored to capacity at the earliest possible time.
  • Right to be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.
  • Right to have a qualified guardian.
  • Right to remain as independent as possible.
  • Right to be properly educated.
  • Right to receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property.
  • Right to receive services and rehabilitation necessary to maximize the quality of life.
  • Right to be free from discrimination because of his or her incapacity.
  • Right to have access to the courts.
  • Right to counsel.
  • Right to receive visitors and communicate with others.
  • Right to notice of all proceeding related to the determination of capacity and guardianship, unless the court finds the incapacitated person lacks ability to comprehend the notice.
  • Right to privacy.

The following rights may be removed from a person by an order determining incapacity, but may NOT be delegated to the guardian:

  • Right to marry: if the right to enter into a contract has been removed, the right to marry is subject to court approval.
  • Right to vote.
  • Right to PERSONALLY apply for government benefits.
  • Right to have a driver’s license.
  • Right to travel.
  • Right to seek or retain employment.

guardianship.pngWhat is Guardianship?
Guardianship is a legal process in which the circuit court appoints someone to protect and exercise the legal rights of an incapacitated person. A person is incapacitated if it is judicially determined that the person lacks capacity to manage at least some of his or her property, or to meet at least some of the essential health and safety requirements. An incapacitated person is known as a “ward,” and the individual appointed by the court to act on behalf of the ward’s person, property, or both is known as a “guardian.” A guardian can be an individual or an institution.

How is it Determined that a Person is Incapacitated?
Any adult can commence the process to determine whether someone is incapacitated. The first step is to file a verified petition in court stating the following points: (Fla. Stat. ยง 744.3201)

  • Name, age, and present address of the person filing the petition and his or her relationship to the alleged incapacitated person;
  • Name, age, county of residence, and present address of the alleged incapacitated person;
  • The primary language spoken by the alleged incapacitated person, if known;
  • A declaration that person filing the petition believes that the alleged incapacitated person is incapacitated and specify the factual information in which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations;
  • Name and address of the alleged incapacitated person’s attending or family physician, if known;
  • The rights enunciated in Florida Statutes that the alleged incapacitated person is incapable of exercising, to the best of petitioner’s knowledge.
  • Names, relationships, and addresses of the next of kin of the alleged incapacitated person, so far as are known, and specify the dates of births of any who are minors.

The court then appoints a committee to determine whether the person alleged to be incapacitated is in fact incapacitated. This committee is composed of three persons: two physicians and one person with the capacity to form an expert opinion
The person alleged to be incapacitated is represented by an attorney, either one that he or she chooses or one provided by the court. If the examining committee finds that the person is unable to exercise certain rights, the court will schedule another hearing to determine whether the person is totally or partially incapacitated. However, a guardian will be appointed if it is determined that the person is incapacitated in any respect – unless there is a lesser restrictive alternative to guardianship that adequately addresses the person’s incapacity.

Can Guardianship be Avoided?
Probably. Florida law requires the use of the least restrictive alternative to protect someone incapable of caring for himself or herself. For example, a health care directive might prevent the need for a guardian in the event of incapacity. Therefore, it is always wise to discuss with an Estate Planning Attorney the available options to avoid Guardianship.

Is a Guardianship Permanent?
Not necessarily. If the person declared to be incapacitated recovers in whole or in part from the condition that caused him or her to be incapacitated, then a petition can be filed with the court to restore the ward’s rights. After the petition is filed, the court will have the ward reexamined and can restore some or all of his or her rights.

Contact a Florida Guardianship Attorney
For more information about guardianship, contact an attorney. For an Estate Planning Attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 – 1200. Or click the “Contact Us” tab at the top of the page.

Phyllis Korkki with the NY Times wrote an article dealing with some of the problems our aging society has when they have no children or natural caregivers and ways to help deal with it. In the article, she quotes me in dealing with some ways you can use legal documents that can be prepared by an attorney to deal with giving someone legal rights to help you make decisions if and when you need it.

These documents can also help avoid a guardianship and limit the ability for some to hijack your assets and use them up with unnecessary fees.

Follow this link to the NY Time article or contact us to discuss how we can provide documents to help manage these situations for your, your friends, or your family.

florida-case-law.jpgIn the Florida case of Jervis v. Tucker, 37 Fla. L. Weekly D349 (Fla. 4th DCA 2012)

Bernice J. Meikle executed a revocable trust agreement in 1991, which she subsequently amended by executing a first amendment. Her trust, as amended by the first amendment,
provided that Meikle’s power to revoke or amend the trust would be suspended upon her being “adjudicated incapacitated by a court of appropriate jurisdiction.” The trust further provided that Meikle’s powers could be restored by an order of an appropriate court having jurisdiction over Meikle, or upon the issuance and receipt by the Trustee of a written opinion from two licensed physicians after their examination of Meikle.

Meikle was adjudicated incapacitated in 2000. On December 27, 2001, Meikle executed a second amendment to her trust without obtaining a court order authorizing the amendment or restoring her capacity to amend the trust,and without written opinions from two licensed physicians.

The second amendment attempted to reallocate the distribution of her assets. Meikle died in 2007 and the second amendment to her trust was subsequently challenged by beneficiaries under her first trust amendment. In granting a motion for summary judgment, the trial court ruled that the second amendment was “void and of no legal effect.” On appeal, Appellant argued that the record evidence showed that Meikle did not lack testament capacity when she executed the second amendment in 2001. The Fourth District found that the plain meaning of the trust agreement, as amended by the first amendment, required Meikle to either have her capacity restored by the court or through the written opinion of two licensed physicians.

Although the trial court had judicially restored certain of Meikle’s rights before her death, it had not restored her rights concerning her property. Moreover, at the trial level, Appellant only offered the opinions of one licensed physician in support of his argument that Meikle had testamentary capacity. Although Appellant also offered the opinion of a licensed nursing home health care administrator, the Fourth District noted this witness, even though possessed of expert experience, was without a physician’s license.

Therefore, because the unambiguous provisions of the trust had not been met, the Fourth District affirmed the trial court’s ruling that Meikle lacked the requisite testamentary capacity to execute the second amendment to her trust.

It is important to understand and comply with the terms of the trust when making changes. You not only have to comply with the trust but with state laws that may override the terms of the trust. In this case, the Ward did not have their ability to deal with property restored by the court nor did they have two doctors state that she was not incapacitated. Even with two doctors the court order determining incapacity would have seemed to have not restored the power to deal with property including her trust.

happy_elderly_couple_americare.jpgAs Jacksonville Elder Law Lawyers, we are always looking for the most effective and least restrictive ways in which to serve the needs of our Jacksonville elderly. We keep current of the Florida statutes and the numerous Florida cases which interpret matters involving Florida’s senior citizens.

Elder law encompasses many aspects, including estate planning, guardianship, medicaid issues, and of course, health care issues. As Florida Elder Law Attorneys, we also look to various research and articles throughout the nation which focuses on issues related to aging.

Recently an interesting article caught our attention dealing with coconut oil and it’s effect on those suffering with dementia and Alzheimers. We want to share information we learn of that may have a positive impact on your lives. This article addresses alternative medical treatment.

Coconut oil, once thought to be harmful due to elevating cholesterol levels, actually has numerous positive influences on human health. While pure non hydrogenated coconut oil does in fact raise cholesterol levels it is the good (HDL) cholesterol that is influenced. Although there is little evidence at this point to support it, some leading researchers believe that Alzheimer’s, dementia, ADHD and other central nervous system impairments can be helped with the use of pure coconut oil.

Glucose is the primary nutritional source for brain cells. Some conditions impair the body’s ability to utilize glucose and as a consequence brain cells do not function optimally and will ultimately die.

Recent research along with antidotal testimonials suggest that the median chain triglycerides can provide a source of ketone to brain cells that acts as an alternative to glucose. Some patients with Alzheimer’s and dementia have seen improvement in cognitive, emotional and physical function with the use of pure coconut oil.

If you would like information or direction with an elderly person in your life, consult with a Jacksonville Elder Law Lawyer.

Jacksonville Elder Law Attorney.jpgFor those working with Jacksonville Elder Law Attorneys the Florida news that a daughter living with her elderly mother was accused of stealing her mother’s money to fuel a gambling and drug addiction was not a shock. In attempting to ascertain the Florida elder mother’s mental state, the investigators turned to her doctors.

The medical insight gleaned from treating physicians can lead to tougher charges against those who use their position of trust to scam the elderly. However, many doctors’ are hesitant to get involved in the Florida legal proceedings of their elderly patients.

In Florida counties, where the population of elderly over the age of 60 often exceeds 25%, many law enforcement financial crimes units are seeking volunteer licensed physicians. These doctors assist in determining the mental and physical state of a victim at the time of the perpetration and fraud.

Jacksonville Elder Law Attorneys have experience with numerous elderly who are victims of financial exploitation. Jacksonville’s elderly victims are described by Florida Statutes as a “person of 60 years of age or older who suffers from infirmities of aging manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunction. . . that the ability of the person to provide adequately for the person’s own care or protection is impaired.”

Many cases of Florida elderly abuse and exploitation are by home health care providers, relatives, guardians, and even opportunistic friends and neighbors.

A Jacksonville Guardianship Attorney can talk to you about the elders in your life who may need assistance. Jacksonville Estate Planning Lawyers have the experience to advise of ways to protect your loved ones before they become victims. Some of these strategies encompass having a trust prepared and consulting with a Jacksonville Medicaid Law Attorney.


pic_giving_money.jpg

A Florida Voluntary Guardianship is a great option for those with elderly parents and elderly relatives who have increasing difficulty managing their own “property affairs”. Business transactions such as banking matters, real estate transactions, and money management are some of the everyday tasks that become increasingly difficult to handle for Florida’s elderly.

Ponte Vedra or Jacksonville residents may become a

Voluntary Guardian

by request and petition of the individual (“ward”) who is in need of assistance from a trusted family member or friend.

The petition must also include a physician’s certificate stating that the person who is petitioning the court for a guardian is competent to understand the nature and scope of the guardianship.

A wonderful feature of the provision is that it allows the guardian to take possession and control of less than all of the wards property. This enables the “ward” to maintain a sense of independence, and allows that person to manage a certain “portion” of their property, and still feel in control of their world. Each circumstance is unique and therefore, it is prudent to discuss your situation with a

Ponte Vedra Guardianship Attorney
.

When the Petition requests that the guardian only take control of a part of the wards estate, the court order must be specific as to the property to be included in the guardianship estate.

A

Voluntary Guardian

must file an annual report with the court, which gives an accounting as to the property under the guardian’s control. The ward may terminate the voluntary guardianship at any time by filing a notice of termination with the court and must obtain a new certification of competency each year for the guardianship to continue. If you have questions about how a voluntary guardianship may assist someone in need of assistance, contact an experienced

Guardianship Attorney in Ponte Vedra.

Over the past several years the Law Office of David M. Goldman PLLC has expanded into several additional practice areas. As these practice areas grown we have been adding staff and creating more informational blogs to help consumers and our clients understand some of the common legal issues. May of our current readers do not realize that we cover these additional practice areas so I wanted to take a moment to update you with them:

For those of you who use an iPhone, we are trying to make some of the information and resources available through our new

Law Office of David M. Goldman PLLC iPhone Application
.

Our main Website is for the

Law Office of David M. Goldman PLLC

The

Florida Estate Planning Lawyer Blog

covers a variety of topics focusing on Asset Protection, Estate Planning, Elder Law, Guardianship, and Probate

The

NFA Gun Trust Lawyers Blog

covers unique issues involved with estate planning, the purchase, possession, use, and transfer of firearms including those regulated by the National Firearms Act. Helps provide guidance on a National level through a network of over 150 lawyers in 43 states.

The

Jacksonville Criminal Defense Lawyers Blog

covers issues related to criminal defense, case-law updates, and legislative changes as they relate to protecting your rights from restrictions by the State of Florida dealing with your freedom.

The

Florida Foreclosure Defense Lawyers Blog

covers issues in Florida and around the country that help homeowners protect their home which is often their single biggest purchase. While we write on topics that have relevance to the entire state, our practice area focuses on the counties surrounding Duval or the City of Jacksonville and its surrounding area.

The

Jacksonville DIvorce Attorney Blog

covers topics relating to your family life, marriage, divorce, child custody, support and guardianship. Many of the articles help our clients to understand what can happen in these very emotional times and how slight differences in the circumstances can make a significant difference.

The

Jacksonville Personal Injury Lawyer Blog

covers issues relating to injury and compensation for the negligence of others. This is our newest blog and will be launching in the next few weeks.

The

Jacksonville Bankruptcy Lawyers Blog

covers topics related to bankruptcy and specific circumstances that may allow one to qualify for certain exemptions and benefits afforded under the Federal bankruptcy Code.

We hope you enjoy our postings and take the time to visit some of out other blogs that cover different Florida legal issues as over 50,000 people a month do. If you have a question regarding one of these area or something involving a legal issues in Florida, please Contact us and one of the lawyers in that practice area will respond.

Temp. Custody of minor child.jpgAs Floridians we know that Jacksonville summers seem to blend into the Florida Fall. Before you know it, school registration will be upon us, sports physical exams, and signing up for health insurance. As the non-legal parent of a minor child, don’t wait until the school year begins to obtain Florida legal custody over your grandchild, niece, nephew or other minor relative.

Florida Statutes, Chapter 751 recognizes that many minor children live with and are cared for by members of their extended family and not by their natural or legal parents. An “extended family member” is any relative within the 3rd degree by blood or marriage to the parent, or the stepparent of a child if currently married to the parent and not in a pending civil or criminal proceeding involving one or both of the child’s parent as an adverse party.

If you are a Jacksonville individual eligible to bring a proceeding in the circuit court to obtain legal temporary custody of a minor child under your care, contact a Jacksonville Custody Attorney to discuss the importance of obtaining court ordered legal custody. For more information on Child Custody in Florida please review our Jacksonville Divorce Attorney Blog

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