In a guardianship, a Guardian is granted authority to act on behalf of a Ward who has been deemed legally incapacitated or in some circumstances a minor child (for reasons that will be discussed later in this article). Guardianship is an area of probate law, overseen by a Circuit Court Judge, that is often overlooked or unknown until a need arises. If there is a need for a guardianship, contact the knowledgeable attorneys at the Law Offices of Jeffrey A. Herzog, P.A.
What is Guardianship?
Guardianship is a legal process where a court appoints a Guardian to exercise the legal rights on behalf of an incapacitated person, referred to as the “Ward.” The Guardian may have responsibility to oversee the Ward’s assets or the Ward’s person. A guardian who has responsibility over the Ward’s assets must:’
- Prepare and FIle an inventory of the Ward’s property;
- Make sound investments;
- Use the Ward’s property to support the Ward;
- File detailed annual reports with the court accounting for all of the Ward’s property; and
- Obtain court approval for certain financial transactions made on behalf of the Ward.
If the Guardian has responsibility over the Ward’s person,the Guardian must ensure the personal care of the ward. Responsibilities of the Guardian include:
- Procuring any medical, mental, or personal care services the Ward may need;
- Finding suitable living accommodations for the Ward; and
- Submitting an annual detailed care plan for the Ward and a physician’s report to the court.
If a person has become incapacitated, a Petition to Determine Incapacity is filed with the court to determine whether the alleged incapacitated person meets the legal standard of being adjudicated incapacitated. The Petition must provide specific facts that supports the basis of the incapacitation. Incapacitation refers to being legally incompetent. Incompetent generally means that the person is unable to manage all or part of his or her assets (financial and real estate) , or being incapable of caring for one’s self (basic necessities of life such as managing one’s health and safety). After the Petition is filed, the court will automatically appoint an attorney to represent the alleged incapacitated person, or he or she may elect to retain their own attorney instead.
Furthermore, after the Petition to Determine Incapacity is filed the court will appoint an examining committee. This committee is comprised of three members, usually including two physicians and another individual who is qualified to form an expert opinion. At least one committee member must be knowledgeable about the specific type of incapacity alleged. The allegedly incapacitated person will usually be subject to a mental and physical health examination as well as a functional assessment. After the committee members have completed their evaluation, they submits their specific findings to the court.
Once the court has determined that a person lacks capacity, the court then must appoint a Guardian. If you are seeking to be appointed the Guardian, you must file a Petition For Appointment of Guardian. The court will decide who will be appointed the Guardian by using the “what would be in the best interest of the Ward” standard. To be appointed the Guardian you must be qualified to serve under Florida Statutes, complete a Guardian Application, be subjected to background screenings, and in some circumstances complete an education requirement. Florida law requires that a Guardian be represented by an Attorney.
In Florida, there are voluntary and involuntary guardianships. If a mentally capable adult feels unable to manage his or her own affairs, they can voluntarily petition the court for a Guardian to be appointed. The court, pursuant to legislative intent, will establish the least restrictive guardianship to fit the needs of the Ward. This means that, should the person be able to care for themselves, but not be able to manage their financial assets, the court would appoint a Guardian to protect and manage the Ward’s assets only.
Guardianships are also established for minor children whose parents have passed away or whose parents have been deemed incapacitated. Additionally, a guardianship may need to be established if a minor child receives an inheritance, lawsuit settlement, or insurance policy that exceeds the allowed statutory amount. This type of guardianship will terminate when the minor child reaches the age of majority – eighteen.
You can plan for guardianship during the estate planning process. If you are considering voluntary guardianship or want to plan for the possibility that you may one day need a guardian, you can establish a Declaration of Guardianship. The Declaration will allow you to select a guardian for yourself should you ever need one. Additionally, you can have a Declaration that provides a guardian for your minor children should the need also arise. A provision may also be put in your will that provides for your guardian selection for your children. These are valuable estate planning tools that allow you to make a very important choice before the need arises.
Guardianships are only necessary when there is no other least restrictive means available. What that means is that a well created estate plan, in many situations, will avoid the necessity of a guardianship. If a plan is in place to have assets and health care decisions managed in the event of incapacity, then in most circumstances a guardianship is unlikely to occur. Guardianships are used as a last resort as they tend to be complex, burdensome on the Guardian, and costly. However, if there is no plan, and an incapacity event occurs, it is the only resort. To arrange for the likely or unlikely event of incapacitation, please visit our Estate Planning section, as there are many options available to potentially eliminate the inevitability of a future guardianship from occurring.
Guardianship Attorneys Here to Provide Legal Counsel You Can Trust
Guardianships often arise at difficult times. If guardianship proceedings are necessary it means that someone has passed away or become incapacitated. The guardianship process can be legally complex and challenging. The dedicated guardianship attorneys at the Law Offices of Jeffrey A. Herzog, P.A. are here to provide sound legal counsel for you and your loved ones at a time when you may need extra support. Let our attorneys help you through the guardianship process so that you can focus on taking care of yourself and your family. Contact us today.