Florida Estate Planning Lawyer Blog
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.
What is the Florida guardianship process?
If a guardianship is uncontested, the process is generally fairly easy. In Florida, in order to file a guardianship and become a guardian, you must first be represented by an attorney. Once an attorney has been retained the following generally occurs:
- Two separate petitions are filed with the court along with an Application for Appointment as Guardian. The two petitions are:
A) Petition to Determine Incapacity; and
B) Petition for Appointment of Plenary Guardian
If you believe the person is in imminent danger of significant damage to their own physical or mental health, his or her safety is in danger, or the person’s property is in danger of being lost, wasted, or misappropriated a Petition for Emergency Temporary Guardian can also be filed.
- The court appoints a three member examining committee to evaluate the person’s (now referred to as an alleged incapacitated person) physical and mental health, as well as perform a functional assessment. The alleged incapacitated person is also appointed an attorney to represent their best interest. This attorney must also meet with the alleged incapacitated person and make their own assessment regarding whether a guardianship is needed and of whom is best suited to serve as their guardian.
- Once the examining committee and the court appointed attorney complete their evaluations, a hearing is held on the Petition to Determine Capacity. If the court determines through the examining committee’s reports and other available evidence that the alleged incapacity person no longer has the capacity to make their own health care decisions or manage their property, they will then be deemed incapacitated by a court order. The hearing will then continue and the Petition for Appointment of Plenary Guardian and Application for Appointment of Guardian will be heard. It is during this hearing that a guardian is appointed. The alleged incapacitated person is now referred to as a ward.
What happens once a Florida guardian is appointed?
Once a guardian is appointed, he or she is required to provide the court with a report regarding the person and/or property as determined by the court. The guardian now has the responsibility of ensuring the ward’s rights are protected. The ward will lose many rights, but will still retain some rights of privacy, access to courts, counsel, communication, and to be treated humanely. The guardian is able to act on behalf of the ward in many ways that include the ability to make decisions for the ward’s mental and medical health treatment. The guardian can also decide where the ward will reside, and can apply for government benefits for the ward. The guardian may also enter into a contract for the ward and sue or defend lawsuits on his or her behalf.
For full information regarding what rights can be taken from a person, what rights a person can retain, the responsibilities of a guardian, and the guardianship process refers to Florida Statute 744.2101 and the Florida Probate Code, Part III. The Law Office of David M. Goldman, PLLC is also able to answer your concerns and help you navigate the process. Call us today at 904-685-1200.