Florida Estate Planning Lawyer Blog

The adjudicatory hearing is closed and only the examining committee members, the petitioner and his or her Florida Guardianship Attorney, the Alleged Incapacitated Person (AIP) and his or her Florida Guardianship Lawyer have the right to be present. The AIP has an absolute right to attend and must be present unless his or her presence is waived by his or her Florida attorney. The AIP also has the right to refuse to testify during the hearing.

In the event that there are witnesses, the witnesses must be disclosed to all parties. The Florida Court must find by clear and convincing evidence that the AIP is incapacitated. If the AIP is found to be incapacitated the court must consider alternatives to guardianship before the appointment of a guardian. This is the case in a plenary guardianship or limited guardianship.

A Jacksonville Guardianship Attorney will always attempt to obtain a Limited Guardianship for his clients when ever possible. Generally in Jacksonville and around Florida, The courts must use the least restrictive means when establishing a Florida Guardianship. When a person has all of his /her rights removed they will have a Plenary guardianship. If one right or more is retained then the guardianship is limited.

The duties of a guardian may be divided into two parts:

1) The duties dealing with the person of a ward, and
2) The duties with the property of a ward.

Therefore a court may appoint a guardian of the person of a ward who will be given the rights that has to do with the person, such as the right to:

Consent to mental and medical treatment,
Determine the ward's residence, and
Make decisions about the social environment and social aspects of the ward's life.

A guardian of the property will be appointed to handle some or all of the rights dealing with the property. Those rights include the right to:

Contract,
File suit and defend lawsuits,
Apply for government benefits,
Manage property, and
Make gifts or disposition of property.

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.