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Guardianships

A legal guardianship proceeding becomes necessary when someone becomes mentally incapacitated and is unable to manage their own financial, personal, and medical affairs.  Many people are under the false impression that the incapacitated person's spouse, adult children, or other family members are automatically able to step in and handle the incapacitated person's affairs.  Unless the incapacitated person had an alternative method for handling their affairs set up in advance (e.g., a Durable Power of Attorney, Designation of Health Care Surrogate, Trust, etc.), nobody has the legal right to step in and begin taking care of these issues.  Someone has to petition the Court to have an official legal determination made that the person is in fact incapacitated and needs a guardian to be appointed to handle their financial, personal, and medical affairs.

 

Florida law requires that any person seeking to become the guardian of an incapacitated person must be represented by an attorney.  These attorney's fees can be paid from the assets of the incapacitated person since everything is being done for the incapacitated person's benefit.  Florida law also requires that the Court appoint an attorney to represent the interests of the incapacitated person to ensure everything is truly being done for their benefit and in their best interests.  

 

The first step in a guardianship proceeding is the filing of a Petition to Determine Incapacity, where the petitioner asks the Court to evaluate the alleged incapacitated person's mental capacity.  The Court appoints a three person panel of health care professionals, known as an examining committee, to perform an evaluation of the alleged incapacitated person and provide the Court with a report of their findings.  The Court then holds an incapacity hearing where the examining committee's reports, the observations of the Court appointed attorney, and any other evidence or testimony is considered to make a determination regarding the person's capacity.  If the Court finds that the alleged incapacitated person still has capacity and the ability to handle their own affairs, the guardianship proceeding is dismissed.  If the Court finds that the alleged incapacitated person is truly incapacitated and cannot handle their own affairs, things progress to the next step - the appointment of a guardian.

After the incapacity hearing, a hearing is then held to determine who should be appointed as the guardian.  The Court evaluates evidence about the Petitioner's qualifications to act as the guardian, taking into consideration their education, profession, criminal history, and a number of other factors.  If the Court finds that the Petitioner is able to act as a guardian, it issues Letters of Guardianship, which give the Petitioner the authority to act as the incapacitated person's guardian.  The Court can either grant a limited guardianship, to handle only a single aspect of the incapacitated person's life (e.g., their property, their personal affairs, their medical affairs, etc.), or a plenary guardianship, which covers all aspects of the incapacitated person's life.

The guardian is subject to a number of requirements imposed by Florida law - they must complete and file an inventory of the incapacitated person's property and assets and a plan of how they intend to take care of the incapacitated person's affairs; they must complete a guardianship training class; they must pass a background check; and they must file annual accountings and reports with the Court to show what was done during the prior year. 

If you have questions regarding the Florida guardianship process, or need assistance, guidance, or representation in your guardianship case, please feel free to contact The Law Office of Greg R. Garner, P.A. to schedule a free initial consultation.