Florida Estate Planning Lawyer BlogIf you have a family member or friend you believe can no longer care for their own health and/or finances due to an incapacity AND there is not a Power of Attorney or other similar document already in place, it may be time to look into guardianship. A guardian will be able to make the healthcare and financial decisions they are unable to make. Once deemed to be incapacitated, a person becomes known as a ward. Continue reading
Articles Posted in Guardianship
Florida Guardian Advocacy
Many parents who have children with physical and/or mental developmental disabilities need to know what to do when their child comes of age. On a child’s 18th Birthday, regardless of any physical or mental disability, their parents automatically lose the ability to make decisions for their child. This is a huge issue upon their 18th Birthday, because parents cannot even take their child to the doctor or enroll them in the programs that they may need. This is where a Guardian Advocacy is extremely helpful. By becoming the Guardian Advocate over your child with a disability, you can continue to make decisions for your child as their natural guardian since their birth.
Guardian Advocacy is controlled by Florida Statute 393.12. Florida Statute 393.063(9) defines a developmental disability as “a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.” Continue reading
Involuntary Guardianship of an Adult in Florida
Are you concerned about your father, another family member or close friend’s ability to continue taking care of his or her own health and property without help? Are you afraid they cannot remember to properly take their medications or go to their own doctor appointments? If a Power of Attorney and/or a Power of Attorney for Health Care is not already in place, the only means to help manage their health and assets is by establishing a guardianship within a court’s probate division. Once a guardian is appointed, the incapacitated person does lose many of his or her individual freedoms and rights, but gains the help from someone with legal authority to make health and property decisions for him or her.
A guardianship can be either plenary or limited. A guardian who manages all rights and property of an individual is referred to as a Plenary Guardian. A Limited Guardianship is when the court determines a person only lacks the ability to handle his or her affairs to a limited degree. In these situations, a person may lose their ability to contract, marry, make health care decisions, etc., but may maintain their right to determine where they live, retain employment and make decisions regarding their social environment to name a few. Continue reading
New Florida Law hopes to reduce elder abuse by guardians
A new Florida law, Florida HB5, signed into law by Governor Rick Scott in June seeks to curb elder guardianship abuse. The bill was drafted to help solve the growing problem of elder abuse in Florida’s elder guardianship system
There are a growing number of reports of abuse of court appointed guardians in Florida misappropriating funds and other abuse by exploiting the old law’s lack of transparency, poor oversight and other structural flaws. Once a person becomes incapacitated, a petition may be filed to appoint a guardian if there is no pre-approved guardian in place. An incapacitated person can lose a variety of rights to his or her guardian, including the right to manage his or her finances and health care.
Under the current system incapacitated persons become vulnerable to abuse by their guardian. The new Florida bill seeks to prevent abuse with some of its major provisions, such as the provision that provides specific criminal penalties for abuse or exploitation of a ward.
Jacksonville Guardianship: How to Transfer a Guardianship to Florida from another state
Transferring a guardianship from another state to Florida can be more complicated than a transfer between another two states. American families are increasingly becoming more mobile, and different states have varying rules regarding the guardianship process.
Before a move can occur, a guardian will need to consider if the state he or she is moving the ward to will recognize the guardianship in their current state. To best ensure the guardianship is correctly transferred, we recommend speaking with an attorney who is familiar with both state laws.
Who has legal custody of minor children after the parents’ death?
A common estate-planning problem arises when parents with young children die or become incapacitated. Usually when one parent dies, the second parent assumes custody, but if the second parent is also not available the issue is who has the right to and who will raise the minor children.
The best solution to avoid this issue is to plan ahead by naming a guardian through a will. A guardian should be someone who is willing to raise the minor children in the event something happens to the parents. To qualify as a guardian in Florida, the person must be at least 18 years old and of sound mind.
In the will, a personal guardian should be named for each of the parent’s children. It is also a good idea to name an alternative guardian in the event the first guardian is unable to serve. Besides the age requirement, a guardian must be a Florida resident unless a close blood relative or spouse of one. A testator, or one who executes a will, may also name co-guardians if they prefer that two people care for the child. This could allow another couple to raise the children, and would give each guardian the ability to make important decisions for the child.
The Guardianship, the Guardian, and the Ward
When a person cannot take care of himself or herself, a court may appoint a guardian to take care of that person and/or that person’s affairs. The person appointed a guardian is known as “ward.” A guardian has the powers and duties stated in Florida Statutes section 744.361. The Ward retains the rights stated in Florida Statutes section 744.3215.
Types of Guardianship
There are three types of guardianship: guardianship of the person, of the property, and of the person and property. The court may appoint the type of guardianship that it determines is appropriate for the ward’s incapacity.
Guardianship in Florida
What is Guardianship?
Guardianship is a legal process in which the circuit court appoints someone to protect and exercise the legal rights of an incapacitated person. A person is incapacitated if it is judicially determined that the person lacks capacity to manage at least some of his or her property, or to meet at least some of the essential health and safety requirements. An incapacitated person is known as a “ward,” and the individual appointed by the court to act on behalf of the ward’s person, property, or both is known as a “guardian.” A guardian can be an individual or an institution.
How is it Determined that a Person is Incapacitated?
Childless and Aging? Time to Designate a Caregiver
Phyllis Korkki with the NY Times wrote an article dealing with some of the problems our aging society has when they have no children or natural caregivers and ways to help deal with it. In the article, she quotes me in dealing with some ways you can use legal documents that can be prepared by an attorney to deal with giving someone legal rights to help you make decisions if and when you need it.
These documents can also help avoid a guardianship and limit the ability for some to hijack your assets and use them up with unnecessary fees.
Follow this link to the NY Time article or contact us to discuss how we can provide documents to help manage these situations for your, your friends, or your family.
Florida Court Finds that Settlor Lacked Requisit Capacity to Execute Trust Amendment
In the Florida case of Jervis v. Tucker, 37 Fla. L. Weekly D349 (Fla. 4th DCA 2012)
Bernice J. Meikle executed a revocable trust agreement in 1991, which she subsequently amended by executing a first amendment. Her trust, as amended by the first amendment,
provided that Meikle’s power to revoke or amend the trust would be suspended upon her being “adjudicated incapacitated by a court of appropriate jurisdiction.” The trust further provided that Meikle’s powers could be restored by an order of an appropriate court having jurisdiction over Meikle, or upon the issuance and receipt by the Trustee of a written opinion from two licensed physicians after their examination of Meikle.