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Common Questions Regarding Guardianship Law in Florida:

A WHAT IS GUARDIANSHIP?
Guardianship is a legal proceeding in which a guardian is appointed by the court to exercise the legal rights of an person found to be incapacitated.

WHAT IS INCAPACITY?
If a person is deemed incapacitated, they have been judicially determined to lack the capacity to manage at least some of their property or to meet at least some of the essential health and safety requirements of the person.

"Manage Property" means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits and income.

"Meet essential requirements for health or safety" means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.

WHO MAY SERVE AS A GUARDIAN?
If a resident of Florida: Any resident of the State of Florida who is 18 years of age and qualified to act as guardian.

If a nonresident: a) Must be related by lineal consanguinity to the Ward; b) or a legally adopted child or adoptive parent of the ward; c) a spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person; or d) the spouse of a person otherwise qualified under this section

Andrea C. D'Addario Guardianship Law for Florida Attorney

WHO IS DISQUALIFIED FROM SERVING AS GUARDIAN?

Anyone convicted of a felony or who, from any incapacity or illness, is incapable of discharging the duties of a guardian, or who is otherwise unsuitable to perform the duties of a guardian. Also a person who has been judicially determined to have committed abuse, abandonment or neglect against a child.

DOES ANY PARTICULAR PERSON HAVE PRIORITY TO SERVE AS GUARDIAN?

Yes, pursuant to Florida law, the court shall give preference to the appointment of a person related to the ward, who has certain qualifications or experience relevant to the nature of the services sought and has the ability to serve.

The court shall also consider the wishes of the ward as to who should serve as guardian.

HOW DO YOU APPLY TO THE COURT TO SERVE AS A GUARDIAN?
Several initial documents need to be filed with the court, including a petition for appointment of guardian, oath of guardian and application. Florida law sets forth specific requirements of which must be included in these initial documents. For example, a detailed application listing the applicants qualifications to serve as guardian must be filed.

In addition, the guardian must submit to a background check and a credit check.

The guardian will be required to attend a guardianship education course outlining the duties and responsibilities of a guardian. Depending on the type of guardianship and the qualifications of the guardian, the course may be a 4 or an 8 hour course.

WHAT IS THE PROCEDURE FOR DETERMINING WHETHER AN INDIVIDUAL LACKS CAPACITY?
A petition must be filed with the court providing information on the alleged incapacitated person, including the nature of the incapacity. The petition, like other documents filed with the court must comply with Florida law in order to be accepted and considered by the court.

Once the petition is filed, notice is provided to the alleged incapacitated person and an attorney is appointed by the court to represent the interests of the alleged incapacitated person.

Also appointed by the court is an examining committee, consisting of three members. One member must be a psychiatrist, or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology or other person who by knowledge, skill, experience, training or education may, in the court's discretion, advise the court in the form of an expert opinion. Upon examining the alleged incapacitated person, the examining committee members file reports regarding their opinion and observations on the alleged incapacitated person's condition.

The reports of the examining committee and the court appointed attorney are submitted to the court for determination. The court then holds a hearing and makes a determination as to the capacity of the alleged incapacitated person and whether a guardianship is necessary.

Subsequent to the hearing, an order is rendered by the court outlining in specific detail, which rights of alleged incapacitated person is incapable of exercising.

WHAT ARE THE DIFFERENT TYPES OF GUARDIANSHIP?
Plenary Guardianship: When a person is appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property.

Limited Guardianship: When a person is appointed by the court to exercise the legal rights and powers specifically designated by court order entered after the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property.

Voluntary Guardianship: A person may consent to the appointment of guardian of his/her property as long as the person is determined by a licensed physician to be competent to understand the nature of the guardianship and his or her delegation of authority.

GUARDIANSHIP FOR MINOR CHILDREN
People are under the improper assumption that because they are the natural parents of their minor child, they are automatically permitted to handle all interests pertaining to their minor child's property. This is not true!

A natural parent is the legal guardian of the child's person but not necessarily the property of the child. Court appointment in order to obtain legal guardianship over the property of their minor child may be necessary. The Florida statutes outline the specific situations in which a legal guardianship over the property of a minor is required. Some common occurrences are: when a minor child is in an auto accident resulting in a claim or cause of action; has inherited property from an estate or trust; is the beneficiary of a life insurance policy; or inherits a parcel of real property.

The value of the transaction involving the minor child determines whether the natural parents are authorized to handle the transaction without court involvement. In the event the aggregate value involved does not exceed $15,000, court involvement will likely be unnecessary.

ALTERNATIVES TO GUARDIANSHIP
Guardianship is intrusive and is used only as a last resort. In the event there are any alternatives to guardianship, the court is required to consider these alternatives prior to appointing a guardian.

Some examples of alternatives to guardianship include Revocable Trusts, Durable Power of Attorney and advanced care directives.

HOW LONG DOES A GUARDIANSHIP LAST
Guardianship of a minor: when the child reaches 18.

Guardianship of an elderly person: when the elderly person regains capacity, or upon death.

REQUIREMENTS OF A GUARDIAN
A guardian is considered a fiduciary held to the utmost standard of professionalism.

A guardian has several statutory duties that must be compiled with throughout the guardianship proceeding. These include, but are not limited to taking control and managing the ward's assets, filing an inventory within 60 days or appointment as well as an annual report, including an annual accounting of the ward's assets.

Further, there are several actions of a guardian of which require court approval prior to undertaking such action.

A guardian is required to be represented by an attorney in Florida and should be consulted with through all stages of the guardianship proceeding.

*The above reflects a brief summary of the different aspects of a guardianship and are not exclusive or intended to be relied upon as legal advise.

An experienced guardianship attorney should be consulted to discuss the benefits and detriments of guardianship proceedings.

 

Disclaimer: This web site is designed for general informational purposes only. The content of this site does not constitute legal advice or the formation of a lawyer/client relationship. 

     

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Email: andrea@daddario-law.com
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