What 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. § 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.