Guardianship

November 3, 2016

Can You Prevent a Marriage in Florida?

Can a Marriage be Prevented in Florida? We often get questions about whether the Fundamental Right to Marry Extends beyond Incapacity?

The state constitution of Florida offers every citizen basic fundamental rights. One of the most important of these rights is a Florida resident’s fundamental right to marry. The right to marry in Florida is strong and has grown ever stronger recently due to the U.S. Supreme Court’s holding that same-sex marriage is a right.

However, this right to marry in Florida is not without its limits. Under the current state laws, an incapacitated person cannot marry without court approval. When a person is deemed incapacitated by a court, he or she loses the ability to contract with others. As unromantic as it sounds, marriage is a contract between two people. Two people cannot get married if one of the persons to the marriage no longer has the ability to enter into a contract.

If an incapacitated person marries then the marriage may not be valid. So what is a valid marriage? According to the court in Goldman v. Dithrich, 179 So. 715 (Fla. 1938), “To constitute a valid marriage, the marital contract must be voluntarily entered into in good faith for the purposes actuating such contracts, the parties must be legally eligible to make the contract, and their status must be such that the union will not be contrary to public policy or obnoxious to the prevailing social mores.”
Continue reading

December 2, 2015

Elder Law Update 4th Quarter 2015

by David M. Goldman

News and Important information for Seniors and their Families.

In this issue, we discuss the following topics.

How to Bulletproof your estate plan

October 20, 2015

Who Bears the Cost of Guardianship in Florida?

by David M. Goldman

Petitioning a Court to become the guardian of an adult is, unfortunately, not a cheap process. Many clients are very shocked to find out just how expensive becoming the guardian of a loved one can be. Not only are their court costs that have to be paid, but there are attorney and doctor fees as well.

First of all, you must file two separate petitions with the court. Each of these petitions has its own filing fee, which is not small. For example, in Duval County, Florida, each filing fee can be $400.00. And the fees do not stop there. A 3 person examining committee is appointed by the court as well as an attorney to present the potential ward. Each examining committee member has their own individual fee, which can range anywhere from $175.00 to $250.00 each. The court appointed attorney must also get paid for their time.

October 10, 2015

How is Someone Deemed Incapacitated in Florida?

by David M. Goldman

Florida Statute 744.331 outlines the legal process that must be followed in order to have an adult deemed incapacitated in Florida. Per the Florida Statute, the process begins when a concerned family member, friend, or other interested party files two separate petitions with a Florida Court. One petition is the Petition to Determine Incapacity and the second is the Petition for Appointment of Guardianship. Both of these petitions are then served upon the alleged incapacitated person as well as read to the alleged incapacitated person by a court appointed attorney appointed to look after the best interests of the alleged incapacitated person. The court appointed attorney must be part of the court’s attorney registry or belong to the office of criminal conflict and civil regional counsel. However, the alleged incapacitated person can always substitute their own personal attorney if they choose. The alleged incapacity person’s next of kin must also be notified of the Petition to Determine Incapacity and the Petition for Appointment of a Guardian.

After an attorney has been appointed to represent the alleged incapacitated person, a three (3) person examining committee is also appointed. The examining committee is comprised of 3 persons from multiple different backgrounds including but not limited to psychologists, physicians, nurse practitioners and social workers. Their role is to examine the alleged incapacitated person and prepare and file a report with the court that complies with Florida Statute 744.331(f). Per this statute, the report must include a mental health and physical examination as well as a functional assessment. More specifically, Florida Statute 744.331(f) requires each report to contain the following:

October 7, 2015

When is a Guardianship needed even with a Power of Attorney in Place?

by David M. Goldman

It is a very common practice as people age for them to visit an attorney for estate planning and execution of a Power of Attorney in order for safeguards to be put in place and to select a trusted family member to manage their assets, should they ever become unable to do so themselves. Having a Power of Attorney in place should prevent the necessity of a guardianship from being needed, but unfortunately a Power of Attorney does not always prevent the need for a guardianship and this is why:

When a Power of Attorney is in place and the incapacitated person is being cooperative with the assistance he or she is receiving from their designated Power of Attorney and other family members, and as long as the designated Power of Attorney is only acting in the best interest of the incapacitated person, a guardianship should not be needed. However, if the incapacitated person is not being cooperative and is wasting his or her property by either giving it away, making bad purchase decisions or what have you, then the Power of Attorney does not give the authority necessary to limit the incapacitated person’s access to their property. Therefore, a guardianship would be needed in order to remove the incapacitated person’s right to manage their property.

September 18, 2015

Guardianship Accountability in Florida

by David M. Goldman

In Florida, a court appointed guardian is held accountable by the court system in multiple ways, thus safe guards have been put in place to protect a ward’s assets and health. Each year the guardian must file an annual accounting with the court, which is first reviewed by the clerk and then sent to the judge for approval. The purpose behind this system is to make sure the guardian is using the ward’s assets solely for the benefit of the ward and for things that are only necessary or reasonable for the ward. An attorney must also represent each guardian. If the clerk or judge finds something is amiss in the annual accounting, then the court will take action. The guardian can then be removed and/or criminally charged. The annual accounting is governed by Florida Statute 744.367 and is required to be filed with the court each year on or before April 1; however, the court can authorize it to be filed by the fiscal year. Continue reading

September 14, 2015

How Long Does it Take a Guardian to be Appointed By the Court in Florida?

by David M. Goldman

Guardianship of an Adult

Obtaining the guardianship of an adult is not a long drawn out process as one might think. If everything goes smoothly and it is not contested by anyone, a guardian is generally appointed in roughly 30 days. Once you have obtained an attorney and a Petition to Determine Incapacity and Petition for Appointment of Guardian have been filed with the court, three things are done by the court:

Three (3) doctors are appointed to examine the potential ward and they must file their reports within 30 days of receiving their appointments.
An attorney is appointed to represent the ward; and
A hearing is set on the Petition to Determine Incapacity for roughly 30 days out, depending on the court’s calendar. At the end of this hearing, if the ward is deemed incapacitated, a guardian is appointed.

September 3, 2015

Guardianship: Can I Oppose a Petition for Appointment of Successor Guardian filed by a Nominated Successor Guardian?

by David M. Goldman

The short and quick answer is yes, it is a possibility, but you should first be familiar with applicable Florida Statutes and some definitions before proceeding. A Nomination of Successor Guardian is a document drafted and notarized by a current guardian of an incapacitated person. It names who the guardian would want to take their place upon their death or incapacity. It is not approved by a court and isn’t necessarily filed with the court either.

August 25, 2015

How to replace or remove a Court Appointed Guardian in Florida?

by David M. Goldman

Has your loved one been deemed incapacitated by a court order and had a court appointed guardian over their person and property? Do you believe the court appointed guardian is improperly taking care of your loved one and managing their assets in their best interest? Are you concerned for your loved one’s safety and health? Are you afraid their assets are being wasted? If you answered yes to one or more of these questions, you might be considering trying to remove the court appointed guardian and becoming the guardian of your loved one.

Florida Statute 744.474 allows a court appointed guardian to be removed for any of the following twenty-one (21) reasons: Continue reading

August 13, 2015

Voluntary Guardianship in Florida

by David M. Goldman

In Florida, a voluntary guardianship over a person’s property is available for a competent person who is unable to manage his or her own financial affairs. To begin the process, the person seeking a voluntary guardianship files a petition with the court and is referred to as the petitioner. Once the petition is granted and a voluntary guardian is appointed by the court, the voluntary guardian has the authority to control and manage the financial affairs of the petitioner. A voluntary guardianship remains in effect until the petitioner’s death, incapacity or revocation of guardianship.

The petition filed with the court seeking a voluntary guardianship must: Continue reading