Florida Estate Planning Lawyer Blog

A Jacksonville Guardianship lawyer can help individuals who are not able to deal with their own affairs in a physical or financial manner. By having a person appointed through a Florida Guardianship Proceeding, an individual (the ward), appoints a person( the guardian) to help the ward in those areas where they do not want to or can not represent their own best interests.

A Florida Guardianship attorney can either help to represent the individual or represent others to make sure that the proper guardian is chosen and that they fulfill their fiduciary obligations. Often we find that guardians do what they want and not necessarily what is in the best interest of the ward. This can cause damages and can open the guardian to liability for the actions that they took.

If you or someone you know if in need of a Florida Guardianship or might have been taken advantage by their Florida Guardian, you should contact a Jacksonville Guardianship Attorney to discuss your situation and what options are available to you through Florida's Guardianship proceedings.

It is important to note that in Florida Judges will want to see proof that a child is in the United States legally prior to issuing a guardianship over the minor person. With the recent changes in security and immigration, there is concern about creating a legitimate reason for the minor to stay in the country with the guardianship.

Graham v. Florida Dept of Children and Families (Graham II), 970 So.2d 438 (Fla. 4th DCA December 5, 2007)

This is the continuing saga of the battle between Luke and Laurence over their mother Betty, who DCF had determined was in need of guardianship after determining "Luke is the son who most has Betty’s interests in mind." After Laurence failed to comply with the guardianship court order to disclose the out-of-state location to which he had moved his mother, the court held him in civil contempt. The Court also appointed Luke as temporary plenary guardian of Betty’s person and property, electing to disregard an advance directive Betty had executed over 8 months after the guardianship proceedings had been initiated.

On appeal, the finding of contempt was reversed for failure to properly serve the order to show cause. The appellate court also reversed the order appointing temporary guardian, holding the trial court had failed to properly determine and indicate the specific grounds upon which the advance directive was revoked by the court. The court further noted that the surrogate under an advance directive is not under any duty to prove the validity of the advance directive. Finally, the court noted two of the examining committee reports were filed over two months before the final hearing and, relying upon two physicians’ affidavits filed before and after the hearing to determine incapacity use the wrong burden of proof - the correct burden of proof in a hearing to determine incapacity of a alleged incapacitated person (AIG) is by clear and convincing evidence. Thus the Court ordered the proceedings be dismissed.

Ripoll v. Comprehensive Personal Care Services Inc., 963 So.2d 789 (Fla. 3rd DCA July 18, 2007)

The Florida guardianship court has the inherent authority to monitor a guardianship and to take action it deems necessary to preserve the assets for the benefit of the beneficiaries, including the authority to issue temporary injunctions freezing assets claimed to belong to a guardianship even though ultimate ownership of those assets may be in dispute.

Miller v. Goodall, 958 So. 2d 952 (Fla. 4th DCA April 25, 2007)

A daughter filed a petition to determine her mother’s incapacity and be appointed as guardian.

The ward’s sister (daughter's aunt) also filed a petition seeking to be appointed as plenary guardian.

The court denied the sister’s petition and instead appointed a third party attorney as plenary guardian.
The sister appealed the case on two grounds, arguing:

1) the court lacked personal jurisdiction over the ward, and
2) the court erred by not complying with the ward’s preneed guardianship declaration that named the sister as guardian.

The appellate court affirmed, ruling the lower court had personal jurisdiction over the ward because the ward’s attorney had consulted with her and obtained her consent to jurisdiction. The trial judge found the presumption of appointment of the designated preneed guardian had been overcome.

The appellate court noted the trial judge had also considered section 744.3124, Florida Statutes which states the court shall appoint a preneed guardian "unless the court determines that appointing such person is contrary to the best interests of the ward" and had specifically found it was contrary to the ward’s best interests to appoint her sister.

A person is qualified under Florida Law to serve as a guardian if he or she:

1. Is over the age of 18 years of age;
2. Is a Florida resident; or a non resident who is:

1. Related by lineal consanguinity to the ward;
2. A legally adopted child or adoptive parent of the ward;
3. A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone elated by lineal consanguinity to any such person; or
4. The spouse of a person otherwise qualified above; and

4. Has never been convicted of a felony.

Filed with the Court, along with the Petition to Determine Incapacity, is a Petition for Appointment of Guardian, and an Application for Appointment as Guardian.

In, Florida, unless the Alleged Incapacitated Person is indigent, the Petition must also be accompanied by a check to the Clerk of Court for the filing fees of around $288.50, and a check in the amount of $20.00 to the County Sheriff for service of process. (fees may vary slightly per county)

Upon the filing of a Petition to Determine Incapacity, the Court will appoint three individuals to serve as members of an examining committee.

One member must be a psychiatrist or another type of physician.
The other two members must be either a psychologist, gerontologist, physician, a registered nurse, nurse practitioner, a licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court's discretion, advice the court in the form of an expert opinion.

At least one of three members must have knowledge of the type of incapacity alleged in the petition. Generally without good cause, the family physician may not be appointed to the committee.

Next the examining committee members will each meet independently with the alleged incapacitated person to evaluate his or her abilities and file a written report with the Court.

The Court will also appoint an attorney to represent the alleged incapacitated person. The alleged incapacitated person may substitute their own attorney to represent them throughout the proceeding.

If a family member is appointed by the Court to serve as guardian, that family member will be required to attend an eight (8) hour educational course for guardians. They must also submit to criminal and credit background checks, proof of which must be filed with the Court. It is possible for non Florida residents to "attend" the educational course by listening to audio tapes.

The approximate cost to open a guardianship, which includes court costs, the examining committee fees, the court appointed attorney's fees, and your attorney's fees, range from approximately $5,000.00 to $7,500.00 or more if contested by other family members. After the guardianship is setup there will also be yearly fees associated with the requirements of the court. These fees and costs can range from $300.00 to over $2,500.00 per year.

For more information on Florida Guardianships Contact a Florida Estate Planning Lawyer who handles Florida Guardianships.

In Jacksonville Florida and other Florida counties, your Florida Guardianship Attorney will help the ward present information to court. The court has the option to appoint any person who is qualified to act as a guardian. Florida Statutes, Section 744.312 requires the court to give preference to any person who is related by blood or marriage to the ward.

In addition the Florida Court must also consider the wishes of the incapacitated person as to who shall be appointed guardian. This can be troublesome to the Florida court as the incapacitated person might wish to have a Florida Guardian who is not appropriate for the ward (themselves). The statutes require that the court consider the preference of the incapacitated person but the Florida court is not required to appoint the person requested by the ward.

Right after the petition to determine incapacity, a petition to appoint a guardian is usually heard by the Florida Court. This process can vary from one city like Jacksonville to one in another area of Florida where it might happen a few days later. The appointment of a qualified guardian is very important and is one of the rights of the incapacitated person. Florida Statute, Section 744.3215

In Jacksonville Florida and other areas of the estate Florida Estate Planning Lawyers and Florida Guardianship Lawyers use advance directives including Durable powers of Attorney and Designation of health care surrogates to limit the need for Florida plenary or limited guardianship.

Prior to the appointment of a Florida Guardian, the Duval County court or local court will determine whether the ward executed a valid advance directive in accordance with Florida Statutes, Section 765. If a valid directive exists the court will specify what powers the guardian will have in the letters of guardianship. If court is considering modifying or revoking the authority of the surrogate, the surrogate must be given notice prior to the hearing.

In Jacksonville and other areas of Florida, once the Alleged incapacitated person is found to be incapacitated, he or she becomes a ward. The ward is entitled to have a qualified and competent guardian who:

1) must be at least 18 years old
2) a resident of Florida or a blood relative, adopted child or the ward's spouse, and
3) may not be a

felon,
incapacitated,
previously abused or neglected an elderly person,
anyone who provides services to the ward,
a creditor of the ward,
an employee of an entity that provides services to the ward, or
one of the examining committee members who examined the Alleged incapacitated person

.

For questions about serving as a Florida Guardian for a person who has been adjudged a ward you should talk with a Florida Guardianship Attorney who represents ward's rights