Guardianship and Florida Estate Planning

Guardianship is used when an individual is so incapacitated due to mental or physical infirmity that he or she is no longer capable of making decisions for him or herself. Guardianship is a power appointed by the court in instances where a predetermined person has not already been given such powers by the ward (or the person being cared for). Guardians will usually be family members, but they could also be professional organizations selected by the court. Here are the situations where a guardian might be appointed.

In the case of a minor child, if the parents become incapacitated, then a guardian will need to be assigned to make decisions for the children. This is one of the most important reasons for parents to set up an estate plan — in order to name an individual who will care for their children in the event that the parents are no longer able to.

In the case of an incapacitated adult, courts will establish a party to make decisions in the best interest of the individual. It is therefore important for people to either name individuals they wish to serve as their guardians and/or not serve as their guardians ahead of time in their estate planning paperwork. This is a way of making sure the guardian will be someone you fully trust.

In the case of a developmentally disabled person, courts will also assign a guardian if the previous guardian becomes incapacitated. In the state of Florida, there is a special, less restrictive kind of guardianship known as guardian advocacy, in which a special needs child is cared for in a way that is less restrictive.

Florida residents who have questions relating to guardianship can speak with an estate planning attorney to discuss different strategies — either to set up who will be their guardian in the future or to establish guardianship over a family member.