Guardianship FAQ
What is a guardianship?
Guardianship, referred to in some states as conservatorship, is a legal process utilized to protect and care for a person who can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence.
What is a guardian?
A guardian is a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities. After adjudication, the subject of the guardianship is termed a “ward.”
Do I need a lawyer?
Yes, Florida law requires that a guardian must be represented by an attorney who will serve as “attorney of record.”
Can’t my family just help out?
Many people are under the mistaken impression that their spouse or adult children can automatically take over for them at that time. However, unless a less restrictive alternative such as a durable power of attorney, health care surrogate/living will and preneed naming of guardian have been executed by your loved one while they still had the capacity, no one is legally authorized to step into that role automatically.
Thus, in order for others to be able to manage your loved one’s finances and/or personal affairs, they must first petition the court to declare your loved one legally incompetent and appoint a guardian.
What happens in guardianship?
From the time a Petition to Determine Incapacity is filed with the court, your loved one is known as an “allegedly incapacitated person” or “AIP.” After adjudication, the AIP is known as a “ward.” Guardianship is only warranted when no less restrictive alternatives are appropriate or available. As mentioned above, those less restrictive alternatives include a durable power of attorney, trust, health care surrogate or proxy, or other forms of a preneed directive.
There are two types of guardianships under Florida law; voluntary and involuntary. A voluntary guardianship may be established for an adult who, though mentally competent, is incapable of managing his or her own matters and who voluntarily asks the court for assistance by petitioning for the appointment of a guardian. An involuntary guardianship proceeding occurs when you or another individual files a petition in the probate court that alleges your loved one lacks the mental or physical capacity to manage his or her person and/or property in some or all areas. The process is complex and filing a petition does not automatically mean a person is incapacitated
Then, once a person is found to be in need of a guardianship, there are two subtypes; limited and plenary. A limited guardianship is appropriate if the court finds the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property; and if the individual does not have preplanned, written instructions for all aspects of his or her life. A plenary guardianship is a person appointed by the court to exercise all delegable legal rights and powers of the adult ward after the court makes a finding of incapacity. Wards in plenary guardianships are, by definition, unable to care for themselves and cannot exercise any rights most of us take for granted.
The legal authority for guardianship in Florida is found in Chapter 744, Florida Statutes and the Probate Rules, Florida Rules of Court. The statutes and rules describe the duties and obligations of guardians and attorneys, as well as the court, to ensure that they act in the best interests of the ward, minor or person who is alleged incapacitated.
Contact Us For More Information
This is just an overview. We encourage you to sit down and discuss your particular situation with one of our attorneys. If you would like more information or to schedule a consultation, please call 321-426-1848. You may also contact us via email.
