You have probably heard the term guardianship used before whether it was recently in the media, or with regard to a child, or concerning an adult. You may have also wondered if a situation in your own life could benefit from a guardianship, but were unsure of exactly what it entailed. Staack, Simms & Reighard, PLLC, family and estate planning attorneys, works with many clients in this law specialty.
Guardianship is a legal proceeding in which a guardian is appointed to exercise and protect the legal rights of an incapacitated person. A guardian can be an individual or an institution and is the surrogate decision-maker appointed by the court to make decisions for a minor or for an adult with mental or physical disabilities. Those decisions can include personal decisions, financial decisions, or both, depending on the type of guardianship. The subject of the guardianship is called “a ward.”
Whether you are dealing with a minor whose assets must be managed by another, or an adult with a disability who is not able to make decisions for himself/herself, when the court removes an individual’s rights to manage his or her own affairs there is a duty to protect the individual. All guardianships are subject to court oversight and one of the court’s duties is to appoint a guardian.
There are many aspects to guardianships, as well as a variety of reasons for establishing them. You will need an attorney to help guide you through the process. Here, we will give you a general overview, but it is always best to seek counsel in person to discuss your particular situation and needs.
What is a Guardian and Who May Serve?
A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court to care for an incapacitated person, who is called a “ward” and/or for the ward’s assets.
- An adult resident of Florida (age 18 years or older), related or unrelated to the potential ward, can serve as a guardian.
- Certain relatives who do not live in Florida, including a legally adopted child or adoptive parent of the ward, may also serve as a guardian.
- Individuals who are professional or public guardians can serve as guardian.
- An institution such as a nonprofit corporation can be appointed guardian, but a bank trust department may act as guardian only of the ward’s property.
- All guardians must be represented by an attorney who serves as “attorney of record.”
- A person who has been convicted of a felony or who is incapable of carrying out the duties of a guardian, cannot be appointed.
A Guardian’s Role
The guardian of the ward’s person may exercise the rights that have been removed from the ward and delegated to the guardian. These rights include providing medical, mental, and personal care services. The guardian may also determine the residential setting best suited for the ward. The guardian is required to present a detailed plan for the ward’s care, as well as a physician’s report to the court every year.
A guardian who is given authority over the ward’s property is required to inventory the property, invest it sensibly and use it for the ward’s support. The guardian is held accountable for the property, must obtain court approval for certain financial transactions, and is required to file detailed annual financial reports with the court.
Who is Considered Incapacitated?
An incapacitated person is an adult who the court has determined to lack the capacity to manage at least some of his or her property or to meet at least some essential health and safety requirements of the person. Adult guardianship is the process by which the court finds an individual’s ability to make decisions so impaired that the court gives the right to make decisions to another person.
Any adult may file a petition with the court to determine another person’s incapacity. They must have factual information to support their claim that the person is incapacitated. Florida law will only grant guardianship when a less restrictive alternative is not appropriate and available.
In the case of a child, the child’s parents are the natural guardians and in general may act for the child. However, in the situation where the parents die or become incapacitated, or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding $15,000, the court must appoint a guardian.
Both parents or a surviving parent may make a written declaration and file with the court naming a guardian of the child’s person or property to serve if both parents die or become incapacitated. A guardian also may be designated in a will.
There are alternatives to guardianship, but they require action before incapacity begins. In some cases, a durable power of attorney, trust, health care directive, or other form of pre-need directive is much more suitable than a guardianship. For minors, there are special types of accounts that may be created to avoid a guardianship. No matter what your situation, the services of the family law and estate planning attorneys of Staack, Simms & Reighard, PLLC can help you determine the best course of action for your needs.
The Court’s Oversight
Guardianship is overseen by the Florida Circuit Court. Depending upon the circumstances of your case the following may occur:
- The court appoints a committee of three members, usually two physicians and another person who qualifies to form an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court.
- The examination of the incapacitated person normally includes: a physical examination, a mental health examination, and a functional assessment.
- The court appoints an attorney to represent the person alleged to be incapacitated. However, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court.
- If the majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition.
- If the examining committee finds the person is unable to exercise certain rights, the court schedules a hearing to determine whether the person is totally or partially incapacitated.
- If a person is found to be incapacitated in any respect by the court, a guardian is appointed at the end of the incapacity hearing unless there are less restrictive alternatives to guardianship that adequately address the person’s incapacity.
Is Guardianship Permanent?
The guardianship does not have to be permanent. A guardian may be held accountable and removed as guardian if the guardian fails to carry out the expected duties or otherwise becomes ineligible to act as guardian. A guardian also may resign by providing notice to the court. Or, in the case of a minor, the guardianship may end at a certain age.
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. If so, the court will have the ward re-examined and can restore some or all of the ward’s rights.
What are the Types of Guardianships?
- Florida law allows both voluntary and involuntary guardianships. A voluntary guardianship may be established for an adult who, though mentally competent, is incapable of managing his or her own estate and who voluntarily petitions for the appointment.
- One of the most common types of guardianship is for adults who suffer from dementia and other events of incapacity.
- Another common type of guardianship is for persons under the age of 18 (minors). Minors may receive a large amount of money by inheritance, as the result of a lawsuit, or in other ways. If this happens, Florida law provides that minors need another person to manage the money for them until they reach the age of 18.
- Florida law provides for limited as well as plenary adult guardianship.
- 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 pre-planned, written instructions for all aspects of his or her life.
- A plenary guardian 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.
- Florida law also permits establishing a temporary guardianship on an emergency basis and for an incapacitated individual who may need immediate help. In this situation, the court may appoint a temporary guardian. The authority of a temporary guardian is limited to a short period of time and provides a solution until a permanent guardian is appointed.
The process of establishing guardianship requires a great deal of interaction with the local court. There is no “automatic guardianship” for an individual. Instead, the court must enter appropriate orders to grant guardianship authority. Seek the legal counsel of Staack, Simms, & Reighard, PLLC to talk about your concerns with regard to guardianship. We are experienced in this complex and very personal area of law and will see to it that you understand all the processes, rights, and obligations.
Get experienced, professional, savvy representation for your guardianship needs. Reach out today. Staack, Simms & Reighard, PLLC