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Guardianship Attorneys in Orlando, Florida

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Introduction to Guardianship

The term guardianship refers to the process designed to protect the rights of individuals that cannot exercise those rights independently.  A guardian is a person appointed by the court to make legal decisions for someone else who cannot make those decisions for themselves due to incapacity or age.  A ward is a person that is being protected through the guardianship process and is either a minor or a person that the court has declared legally incapacitated and cannot manage their own affairs.  There are two broad areas in which guardianship law is applicable:  When the ward is a minor and when the ward is incapacitated and unable to manage their own affairs.

Guardianship of a Minor

If a child’s parents die or become incapacitated, Florida family law requires the court to appoint a guardian for them.   Additionally, a guardian also must be appointed for a minor if they receive an inheritance, money from a lawsuit, or an insurance payout of over $15,000, even if the child lives with their parents.   There is no finding of incapacity in the guardianship of a minor, so the court may appoint a family member such as a parent, brother or sister, or another person interested in the welfare of the child to act as guardian.

Guardianship of an Incapacitated Person

When a person is unable to manage their own affairs and has not previously signed an advance directive, the court may determine they are incapacitated and appoint a guardian to act on their behalf.

It is important to understand that guardianship is meant to be a last resort and established only in cases where lesser restrictive means of intervention are not possible.  The most popular way to avoid guardianship is through the use of a durable power of attorney or a health care surrogate plan.  Either of these documents may be drafted so that you may avoid the guardianship process completely.

Types of Guardianships

Depending on the unique facts of each case, and the needs of the particular ward, the court may appoint a guardian of the person, a guardian of property or a guardian of both the person and property.

Guardian of the Person

The guardian of the person may only exercise the individual rights that have been removed from the ward by the court and delegated to the guardian.  These rights may include the right to contract, to apply for government benefits, to bring lawsuits or defend against them, to manage property or to dispose of property and even to consent to medical or mental health treatment on their behalf.

The guardian of the person also has the legal responsibility to file appropriate reports with the court during the term of the guardianship.  Typically, the guardian will have to file the Initial Plan and then subsequent Annual Plans.

Guardian of the Property

Like the guardian of the person, the guardian of the property may only exercise those individual rights related to the ward’s financial affairs and property that have been removed from the ward and delegated to the guardian. However, the guardian of the property typically may not sell, transfer, or borrow against the ward’s property without seeking approval from the court beforehand.  Upon motion, the court will determine if the proposed transactions are in the best interest of the ward.

The guardian of the property also has the legal responsibility to file appropriate reports with the court during the term of the guardianship.  Typically, the guardian of the property will have to file the Initial Inventory, in which the extent of the ward’s finances are listed and disclosed and then Annual Accounting Plans are produced each year thereafter to detail the transactions made during the past year.

Guardian of the Person and the Property

The court may appoint one person to act as both guardian of the person and guardian of the property.  There is no requirement to appoint either one guardian or two separate guardians, it depends on the facts of the case.   This dual role guardian has the same duties and obligations as if there were two separate guardians.

Limited versus Plenary Guardianship

One of the guiding principles of guardianship is to use the least restrictive means possible to protect the ward.  When appointing a guardian, the court order that the guardian has the plenary authority or limited authority.

Limited Guardianship

In a limited guardianship, the guardian may make decisions and exercise authority for the ward regarding specific areas of the ward’s life, as defined by the court.  An example of a limited guardianship of the property would say the guardian may only have authority over managing the ward’s rental property, and nothing else.  Other guardians may be appointed to have authority over different issues.  This type of guardianship is most appropriate when the alleged incapacitated person has some capacity to manage their affairs, but cannot manage everything.  A limited guardianship of the person may give the guardian only authority to make medical decisions for the ward.

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Plenary Guardianship

A plenary guardianship is ordered when the court finds the AIP lacks the capacity to manage any of their affairs and cannot take care of themselves alone.  This type of guardianship authorizes the guardian to make all decisions regarding the personal, medical, and financial affairs of the ward.

Some real-life examples of when guardianship litigation might be required:

Baker Act or Involuntary commitment of a person: If an adult hurts themselves or others, or threatens to commit suicide, they could be involuntarily committed to a psychiatric facility. If the person’s friends or family is concerned they could file for guardianship to protect the person and make decisions on their behalf until they are not a danger.

Unable to Manage Their Own Affairs: Sometimes a person is repeatedly committed to a treatment facility for alcohol abuse or drug abuse, but it does no good and they continue using.  A family member may be stricken with Alzheimer’s disease.  If the person’s friends or family is concerned they could file for guardianship to protect the person and make decisions on their behalf until they straighten out and learn to make decisions for themselves.

The exploitation of the Elderly: Sometimes unscrupulous people involved in taking care of the elderly can take advantage of them.  For example, you visit your elderly father and learn that the healthcare worker has been taking him to the bank to write checks made to “cash” and his bank account is drained.  A family member can seek guardianship to protect her father from exploitation.

Outline of the Procedure to Appoint a Guardian

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  • Attorney Files A Petition to Determine Incapacity and Appoint Guardian

  • Within 5 Days of Filing Court Will Appoint Attorney for AIP and an Examining Committee

  • Within 15 Days the Attorney and Committee Members Will Each Submit a Report to the Court

  • The Court Will Schedule a Hearing Within 14 Days to Determine Incapacity

  • If Ward Lacks Capacity the Court Appoints a Guardian

Guardianship Process Explained

The Guardianship Process

A proposed guardian in the State of Florida must be represented by a Florida lawyer who also acts as the Guardian’s resident agent.   The guardian’s lawyer files a petition with the court laying out the facts regarding why the court should order guardianship.  The court then faces two basic decisions that will affect its decision.  First, the court must determine whether or not the ward is incapacitated.  If not, the case is dismissed.  Bear in mind there is no determination of incapacity needed in the case of guardianship of a minor.  A minor lacks capacity under Florida law.  If the ward is determined to be incapacitated, however, the court will appoint a guardian to make the decision on behalf of the word, using the least restrictive means possible.

Determination of Incapacity

The court will appoint a three-member examining committee to determine whether or not the ward is incapacitated.  The examining committee must consist of three people: typically a physician, a mental health professional, and a layperson, who is usually a social worker.  The committee meets with the alleged incapacitated person (AIP), reviews the medical records and each committee member writes up and files a report with the court in which they render their opinion on the ward’s incapacity.

In addition to the committee, the court will appoint a lawyer to represent the AIP.  The attorney meets with the AIP and also submits a report to the court regarding the incapacity of the ward.  The ward is also within their rights to hire an independent lawyer to represent them and contest the findings of the committee.

If all three members of the committee agree unanimously that the ward is incapacitated, the court will issue an order stating that it finds the ward to be incapacitated and will next turn to the issue of appointing a guardian to act on behalf of the ward.

If the examining committee does not unanimously agree then the guardianship may be contested by the AIP’s court-appointed attorney or private counsel.  The court may consider entering a limited guardianship rather than a plenary guardianship and in some cases, the petition may be dismissed if the evidence is inadequate.

Appointment of a Guardian

The first step to being appointed as a guardian is to file an application with the court.  The proposed guardian may be a professional guardian or a non-professional guardian, which is usually a family member.

In addition to the written application a proposed guardian must also submit:

  • Fingerprints

  • Background Check

  • Credit Check; and

  • Guardianship education requirements

A hearing is then held during which the guardian’s counsel presents the above evidence to the court and requests entry of an appropriate guardianship.  If the request is granted, the court will enter an order appointing the guardian and will also issue Letters of Guardianship that detail the authority and responsibilities of the guardian.

As discussed above, the guardian(s) must submit a full inventory of the ward’s assets and also a care plan detailing the medical treatment for the ward.  The guardian(s) must also submit an annual accounting of the ward’s assets and income and also an annual care plan.