Guardianships for individuals with diminished capacity can often result from of a lack of estate planning. When an individual becomes incapacitated, if they do not have a durable power of attorney or health care surrogate in place, no person is legally authorized to step into their shoes and make decisions regarding their health care and finances. A guardianship proceeding can also be initiated because of concerns with elder abuse or exploitation by a person in a trusted position.
Guardianship proceedings are twofold. In Florida you must file two separate causes of action to establish a guardianship. The first action is a petition to determine incapacity. A person must be deemed legally incapacitated before the courts will consider the appointment of a guardian. The petition for incapacity outlines the physical and mental limitations of the individual and makes determinations as to which rights the alleged incapacitated person (AIP) can no longer exercise on their own. Some incapacity determinations are total, meaning the AIP cannot exercise any rights on their own. Other incapacity determinations are limited, meaning the AIP retains the ability to exercise some but not all rights on their own. Once a person is deemed legally incapacitated, the courts will determine if there is any other less restrictive alternative to protect the AIP other than the appointment of a guardian. If there is not, the guardianship proceeding is initiated. The alleged incapacitated person’s legal status changes from AIP to a Ward of the state.
The second petition is the petition to appoint a guardian. The proposed guardian must file an application with court, undergo credit and criminal background checks, post a bond and attend a four to eight hour guardianship training course. If the appointment of the proposed guardian is uncontested, the matter is over quickly and the applicant assuming they passed background checks, is appointed guardian. If more than one person wishes to be the Ward’s guardian, the court will determine who would best serve as the guardian. A guardian may be responsible for making personal decisions for the Ward like health care treatment, residence and social interactions (i.e. guardian of the person) or a guardian may make financial decisions, like banking, purchasing, selling or contracting (i.e. guardian of the property). A guardian can be over the person, the property or both. A guardian of the person is required at a minimum to report annually to court regarding the Ward’s care. A guardian of the property is required, at a minimum, to annually account for the Ward’s property.
An attorney is needed to proceed with both the incapacity and guardianship proceedings. Once the proceedings have concluded, in the instance of a guardianship over the property, an attorney is still required to be of record. Because of the complexity of these types of cases, most incapacity and guardianship proceedings are expensive and time consuming. Guardianships are generally considered last resorts and it is preferable to avoid guardianship with thorough estate planning. However, if you need an attorney to help petition for the appointment of a guardian for a loved one, the Attorneys at Phillips and Finley have years of experience are ready and able to help.
Is Guardianship permanent?
The guardianship does not have to be permanent. If a Ward recovers in whole or part from the condition that caused that person to be incapacitated, a petition can be filed with the court to restore the ward’s rights. The court will have the Ward re-examined and can restore some or all of the Ward’s rights.
For more information about guardianship
Contact Phillips & Finley LLC, An Elder Law Firm , with a focus on empathetic legal solutions. If your loved one has been deemed incapacitated or was born with a developmental disability and has no advance directives in place, such as power of attorney or health care surrogate, speak to an attorney at Phillips & Finley LLC to help you navigate the legal process of establishing a guardianship or guardian advocacy as well. call Phillips & Finley LLC at 386-734-5959.