Florida Estate Planning Lawyer Blog

September 13, 2018

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.

August 28, 2018

Designating a Preneed Guardian

by David M. Goldman

Designating a Preneed Guardian for your Minor Child in Florida

Designating a preneed guardian for your minor child is one of the most important things a parent can do. A designation of preneed guardian is a legal document that permits you to choose the individual who will care for your children if you pass away. You can only choose a guardian for minor children. In Florida, most people use a will to designate the preneed guardian of a minor.

How does a will designating a preneed guardian for a minor work?

August 18, 2018

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

by David M. Goldman

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

When is a Guardianship of Minor needed in Jacksonville, Florida? Under Florida Law, there are two types of guardianships of minors. The first type of Guardianship of a Minor is called a Guardianship of the Person. Guardianship of the person is when someone other than a minor’s parents is given authority to make health care, residence, and school-related decisions for the minor. The second type of Guardianship of a minor is a Guardianship of Property. A Guardian of a minor’s property is necessary to deal with financial or assets more substantial than $15,000.

Here is an example of when a Guardianship will be required for a minor child: A minor loses his first a parent at a very young age to cancer. Five years later, the minor loses his second parent in a car accident. At the time of the second parent’s death, there was a life insurance policy for $100,000.00 that named the minor as the beneficiary. The second parent had designated the grandparents as guardians in a valid will.

July 23, 2018

Guardianship of The Second Man on the Moon in Florida

by David M. Goldman

Jacksonville Guardianship Lawyer Kendal Schoepfer in our office prepared this Article which may help some prevent the need for a Florida Guardianship.

Florida Guardianship Court proceedings are currently in progress regarding the Florida Guardianship of the Second Man on the Moon, Buzz Aldrin, in Florida. The proceedings were filed by two of his three children, Andrew Aldrin and Janice Aldrin, back in May. His third child, James Michael, has remained out of the proceedings and has currently not taken a side. Andrew and Janice’s reasons for filing the guardianship of the second man on the moon is due to a claimed cognitive decline, claiming their father and the former astronaut is suffering from dementia, and Alzheimer’s which is causing paranoia, confusion, and making him susceptible to persuasion by others.

Buzz Aldrin, who is now 88 years old and who maintains he is still competent and able to make his own financial decisions, has fired back by filing his own lawsuit against his children claiming Andrew and Janice have stolen money from him and accused them of elder abuse and conspiracy. These claims are mostly surrounding their involvement in his company, Buzz Aldrin Ventures, where both Andrew and Janice hold high positions. Aldrin told Good Morning America that the day his children filed for guardianship over him was “the saddest thing that ever happened in my family” and that he “really felt that it really didn’t need to come to this.”

June 11, 2018

Child custody of a minor and guardianship of a minor

by David M. Goldman

The difference between obtaining custody of a minor and guardianship of a minor in Jacksonville, Florida?

Florida offers several solutions to provide for obtaining custody of a minor and guardianship of a minor children. Two of the best solutions your Jacksonville lawyer can help with are obtaining custody of a minor child and guardianship of a minor child. Which is best for your situation depends greatly on why and how long the minor child will be under your care and in Florida. Factors include whether the child is only staying with you temporarily or for a specific period of time, or while the parents are unable to care for the child.

If the child will not be under your care indefinitely, then a guardianship most likely is more appropriate. However, if the child will be with you indefinitely and will never live with their parent(s) again, then obtaining full custody will be more appropriate. Custody might also be more appropriate if you want to ensure the parent(s) of the child will not be able to take the child back.

The biggest difference between custody of a minor and guardianship of a minor in Jacksonville, Florida is which court has jurisdiction to reside over the proceedings and how permanent the ruling of the court to be. When you obtain custody of a minor child, the family law court resides over the proceedings and makes the final ruling. The court takes into account what is in the best interests of the child as well as whether the parents are capable of caring for the minor child. The final ruling can be temporary, meaning the parents can obtain the right to have their child back, or permanent where parental rights are terminated and the parents no longer have any rights.

May 29, 2018

How to stop exploitation of an elderly adult in Jacksonville, Florida?

by David M. Goldman

Exploitation of an elderly adult in Jacksonville, Florida is an all too often occurrence as well as across the entire state of Florida. Until recently, there was not much a person could do to stop it quickly when they suspected their elderly or vulnerable family member was being financially taken advantage of. This was a major problem. Before anything could be done to stop the exploitation, concrete evidence was required, and the money or asset that was taken, was too often unrecoverable by the time anything could actually be done. Thankfully, this is changing with the enactment of Florida Statute 825.1035.

Florida Statute 825.1035 allows for an injunction for the protection against the exploitation of an elderly adult or vulnerable adult. In order to get an injunction to stop the exploitation, the family member you believe is being financially exploited must be a vulnerable adult. In order to be considered a vulnerable adult for purposes of Florida Statute 825.1035, the individual must be 18 years or older, and be unable to perform normal activities required for daily living due to an impairment. The impairment can be because of a disability, injury, or aging. The Statute is meant to provide protection not only for elderly adults, but for any adult in Florida who could be financially taken advantage of due to any type of impairment. Continue reading

May 14, 2018

Responsibilities of a Court Appointed Guardian in Jacksonville, FL

by David M. Goldman

If you are a Court Appointed Guardian in you may be concerned about the Responsibilities of a Court Appointed Guardian in Jacksonville, Fl. It is important to understand the rights as well as the responsibilities when acting as a guardian in Florida. It does not matter if you are simply the guardian of a minor or the guardian of the person and property of an adult. Your responsibilities are numerous and are laid out by the Florida Probate Code.

In Florida, you must be represented by an attorney to become someone’s guardian no matter the situation. However, once appointed, there are a few limited circumstances where the Court may allow you to proceed pro se, without the representation of an attorney.

Guardianship of the Person

February 9, 2018

Florida Elective Share Statute Changes

by David M. Goldman

The Florida Elective Share statutes has made it almost impossible to disinherit a spouse from your estate outside of a premarital, prenuptial, or post-nuptial agreement. In 1999, the Florida Legislature enacted what we now call the Florida Elective Share Statute, which was amended in 2016 and 2017 to provide even more protections to the surviving spouse.

The objective of the Florida Elective Share Statute is to protect surviving spouses by ensuring that they have a right to part of their spouse’s estate upon their death. The Elective Share equals 30% of your spouse’s elective estate, which comprises the spouse’s assets. These assets include probate assets and non-probate assets such as 401(k)s, IRAs, life insurance policies, pay upon death accounts, and revocable trusts. See Florida Statute 732.2035.

However, you must file your election to take the Elective Share within six months of receiving notice of administration of the estate or within two years after the decedent’s death. Sometimes if might be appropriate to move for an extension of time to file an elective share; however, the absolute latest date in which you can file your election is within two years from death of your spouse. Ironically, this is the same time that a normal creditor is given to file a claim in an estate.