Florida Estate Planning Lawyer Blog

January 2, 2019

Florida Guardian Advocacy: How do I remain the Guardian of my special needs child?

Florida Guardian Advocacy: How do I remain the Guardian of my special needs child?

In Florida, remaining the Guardian of my special needs child upon reaching the age of majority, 18 years, requires the parent to become the legal Guardian of the child through the Court system. Becoming a guardian is a legal proceeding. Typically a family member, petitions a court to determine that the individual cannot manage his or her affairs because of a disability (a lack of capacity). A guardian is the person appointed by a court to manage the affairs of the person with the disability. The Guardian’s role is to step into the shoes of the person with the disability and make decisions for them. There are two types of guardianships for an adult defined by the Florida Statutes: Guardianship of an Adult and Guardian Advocacy.

What is the difference between Guardianship of an Adult and Guardian Advocacy?

Guardianship of an Adult is intended for any adult with a disability. Obtaining guardianship of an adult can be expensive and is a more complicated process. Someone must petition a court to become a guardian and must also petition the court to determine whether the person with the disability lacks the capacity to make his or her own decisions. Determining whether an adult lacks the capacity to make his or her own decisions requires the court to appoint an examining committee to evaluate the person with the disability and file reports with the Court. Each of 3 medical professionals on the examining committee will prepare a report to inform the Court whether the person with the disability needs a guardian.

November 30, 2018

The most important job of a Florida Guardian

by David M. Goldman

The most important job of a Florida Guardian

The most important job of a Florida Guardian is to ALWAYS act in the Best Interests of the Ward. A Florida Guardian is a person appointed by a court to take care of someone who cannot care for himself or herself. The individual who is determined to need help by the court is called the Ward. This term is the same regardless of age (Guardians of adult or Guardian of a minor). A Florida Guardian can be appointed by a court to make the Ward’s health care decisions, to manage the Ward’s assets, or both. A Florida Guardian should always make decisions based on the best interests of the Ward.

Acting in the Best interests of a Ward’s Person

November 16, 2018

Florida Guardianship Examining Committee: What must the reports include?

by David M. Goldman

Florida Guardianship Examining Committee: What must the reports include?

In a Florida Guardianship, what must be included in the Florida Guardianship Examining Committee Members’ reports? This September, the District Court of Appeal for the Fourth District of Florida examined the requirements of Examining Committee Members’ reports in Cook v. Cook. The Florida Guardianship Process is a legal proceeding in which the Court determines whether an individual, a potential Ward, has the required mental capacity to manage his or her own affairs. The three-person examining committee must examine the potential Ward and advise the Court if a guardianship is needed. A Guardianship is established after a court decides a potential Ward does not have the requisite mental ability. In a Guardianship, an adult is given the authority to manage the affairs of the Ward.

When a Court determines an individual does not have the requisite mental capacity to manage their affairs, certain rights are taken away. In most instances, more rights are taken away than when convicted of a felony. Due to the significance of taking away an individual’s rights, the Florida legislature has laid out specific requirements that must be strictly followed.

November 16, 2018

Florida Guardianship Abuse: Palm Beach Guardian under Fire

by David M. Goldman

Florida Guardianship Abuse: Palm Beach Guardian under Fire

Florida Guardianship Abuse is unfortunately far too common as many retirees flock to Florida for retirement. Retirees move to Florida to enjoy the beaches, sunshine and tax advantages. At any given time, there are 30,000 to 40,000 open guardianships cases being overseen by the Florida Court System. Regrettably, many of these retirees are not legally prepared for when they can no longer care for themselves. Being legally prepared for not being able to care for oneself means having advanced directives in place; a Durable Power of Attorney and Designation of Healthcare Surrogate. Not having these documents results in a guardianship being necessary.

A Florida Durable Power of Attorney allows an individual when they can still care for themselves, to choose who will oversee their financial assets when they cannot.

September 24, 2018

Can a Durable Power of Attorney be signed if a Guardianship is needed in Florida?

by David M. Goldman

Can a Durable Power of Attorney be signed if a Guardianship is needed in Florida? A Durable Power of Attorney is a legal document that allows a competent adult to decide whom can make financial and healthcare decisions for them when they cannot. A competent adult can make his or her own financial and healthcare decisions, also referred to as having capacity. A Guardianship is established when an adult no longer has capacity and is set up through the Florida Court System. Through the Florida Court System, a Court decides who will make financial and healthcare decisions for an individual who no longer has capacity. The person appointed to make financial and healthcare decisions for the individual is a guardian.

Let’s take the following for example: Your mother’s doctor just informed you she is no longer has capacity. You need to become your mother’s guardian because she does not have a Durable Power of Attorney. However, can a Durable Power of Attorney be signed if a Guardianship is needed?

In Florida, the Guardianship Process begins when a Petition for Appointment of Guardianship and a Petition to Determine Incapacity are filed with a court. At the time the petitions are filed, an allegation is made that an individual no longer has capacity. Whether or not someone has capacity remains an allegation until after a court rules on the Petition to Determine Incapacity. A Judge is the only person who can determine if someone has the capacity to make their own financial and healthcare decisions. Additionally, a guardianship cannot be established until after a court makes a ruling on the Petition to Determine Incapacity.

September 17, 2018

VA Final Rule change

by David M. Goldman

For several years the VA has been working on changes to the rules for qualification of certain benefits dealing with transfers, a look back period, assets in trust, and income. Tomorrow the following rule change will be published, watch for some analysis on this and how it has changed in the next few days.

You can download a copy of the new rule here 2018-VA Rule Changes

September 17, 2018

Florida Power of Attorney

by David M. Goldman

What is a Florida power of attorney?

A Florida power of attorney is a legal document that delegates the authority for one or more persons to act on behalf of the person who creates the Florida power of attorney. The person who creates, or signs a power of attorney is the principal. The principal of a Florida Power of attorney grants one or more agents the right to act on their behalf as an agent. The document will describe the authority that the agent or agents have. A Florida Power of attorney can be for a limited purpose or grant broad powers to handle a variety of financial base transactions.

What is a Florida power of attorney be used for?

September 13, 2018

What is the Guardianship Process of an Adult in Florida?

by David M. Goldman

What is the Guardianship Process of an Adult in Florida?

The Guardianship Process of an adult in Florida refers to the court procedure whereby an individual is appointed a guardian. The Guardianship Process is the judicial remedy that allows another individual to protect and exercise the legal rights of another individual. Through the Guardianship Process, a guardian is given the ability to exercise someone else’s rights. The Ward is the individual who is has a guardian appointed to act on their behalf because they are unable to manage their property or make their own healthcare decisions. The guardian protects the Ward’s assets and makes decisions for the Ward.

The Guardianship Process of an adult in Florida requires representation by a Florida Guardianship Lawyer. The initial step in the guardianship process is to hire a Florida Guardianship Lawyer to prepare and file two separate petitions with the Court. The first petition is called the Petition to Determine Incapacity. A Petition to Determine Incapacity asks the Court to evaluate an adult’s ability to manage their assets and make their own healthcare decisions. The adult who is the subject of the Petition to Determine Incapacity is called an Alleged Incapacitated Person, or AIP. They do not become a ward until the court takes away rights.

September 10, 2018

Do I need Guardianship if I have a Power of Attorney

by David M. Goldman

Do I need Guardianship if I have a Power of Attorney in Jacksonville, Florida? Guardianship of an Adult is a legal tool that gives one person the ability to make decisions for another person. A Power of Attorney is also a legal tool that gives one person the ability to make decisions for another person. Both a guardianship and a Power of Attorney are generally only necessary when a person becomes incapacitated. A person becomes incapacitated when they are unable to make their own financial and healthcare decisions. The difference between a guardianship and a Power of Attorney is when and how they are established.

In Florida, a Guardianship can be established when an individual is no longer able to manage their financial affairs or make their own healthcare decisions. Guardianship can only be established through the Florida Court System. A judge decides who the guardian will be. Generally, a guardianship is used when there are no less restrictive means to make decisions on behalf of an individual.

A Power of Attorney is created while an individual still has the ability to make his or her own financial and healthcare decisions. A Power of Attorney is a written document, usually prepared by a Florida Estate Planning Lawyer, that permits you to choose who will make your financial and health care decisions when you cannot.

August 30, 2018

Guardianship of Property

by David M. Goldman

Florida Guardianship: When does a Minor need a Guardianship of Property?

When does a minor need a Guardianship of Property in Jacksonville, Florida? Under Florida Law, there are two particular types of guardianships for minors. The first, Guardianship of the Person, is a guardianship where someone other than a minor’s natural guardian is given authority to make health care, residence, and school-related decisions for the child. The second, a Guardianship of Property, provides a guardian with control over a minor’s assets such as money or real property.

Let’s take the following as an example: A minor loses his father at a very young age to cancer. Five years later, the minor loses his mother in a tragic car accident. At the time of the mother’s death, the mother had a life insurance policy of $100,000.00, which names the minor as the beneficiary. The mother also had designated her parents as the guardian of the minor upon her death. What type of guardianship(s) will the minor’s grandparent’s need to be able to care for their grandson?

Guardianship of the Person: Do the grandparents need a Guardianship of the Person? It is pretty self-explanatory when a minor needs a Guardianship of the Person under Florida Law. A Guardianship of the Person will be required whenever someone, other than the minor’s natural guardian, needs to make healthcare or school-related decisions for a minor. Accordingly, even though the mother designated her parents as the minor’s guardians in case of her death, they will still need to be appointed the minor’s Guardian of the Person.

Guardianship of Property: When does a minor need a Guardianship of Property? It is not as apparent when a Guardianship of Property of a minor is needed in Jacksonville, Florida. When a minor needs a Guardianship of Property entirely depends on the dollar amount in question. Most guardianships of the property are required when a minor inherits money or real estate from a family member.