Florida Estate Planning Lawyer Blog

Once an Agent (Attorney in fact) receives written notice which requires a signature, their powers under the Durable Power of Attorney are suspended until the court determines incapacity. The court may reinstate the Durable Power of Attorney for an emergency, when a petition if file upon the court showing the nature of the emergency, the property or matter involved, and the power to be exercised by the attorney in fact.

Notwithstanding the provisions above, a proceeding to determine incapacity must not affect any authority of the attorney in fact to make health care decisions for the principal, including, but not limited to, those defined in chapter 765, unless otherwise ordered by the court. If the principal has executed a health care advance directive designating a health care surrogate pursuant to chapter 765, the terms of the directive will control if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise.

If the person has not received written notice of the proceeding for which they were required to sign for, any third party may rely upon the authority granted in a durable power of attorney that is not conditioned on the principal's lack of capacity to manage property until the third party has received the required notice. A third party may, but need not, require the attorney in fact to execute an affidavit.

If the Durable Power of Attorney is deployment contingent, any third party may rely upon the authority granted in a durable power of attorney to manage property as defined in Florida Statute 744.102(11)(a) only after receiving the affidavits provided in paragraphs (c) and (d), and such reliance shall end when the third party has received notice.

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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.

The process of finding someone legally incapacitated begins with the filing of a petition to determine incapacity. In Jacksonville and other areas in Florida the petition can be filed by any adult person. The subject of the petition to determine incapacity is known as the Alleged Incapacitated Person.

As soon as the petition to determine incapacity if filed, the court appoints an examining committee and a Florida Guardianship Attorney to represent the Alleged Incapacitated person (AIP).

The Florida Attorney who is appointed to represent the AIP is not a guardian ad litem. Florida Statutes, Section 744.102(1) defines the duties of an attorney for an AIP. Such an attorney represents the AIP ans shall represent the expressed wishes of the AIP to the extent it is consistent with the rules regulating The Florida Bar. This means that they Florida Guardianship Attorney who is appointed to represent an AIP must represent the AIP like in any adversary proceedings. After all, the purpose of these proceedings is to determine whether or not important rights should be taken away from the AIP. A ward under a plenary guardianship has less rights than a convicted Felon in Florida.