This page will contain a list of links to organize and provide navigation to information on your website.There are several situations in which a guardianship will be created and they fall into specific fact patterns:
1. An older person is declining mentally, such that he or she is no longer able to handle the daily tasks of living, i.e. making medical decisions, handling finances, cooking, cleaning, travelling, etc.
2. A minor receives a settlement in a personal injury case in excess of $15,000.
3. A developmentally disabled child reaches majority and his or her parent wants to continue to act as their advocate (guardian advocate rather than full guardianship).
Older Adults in Decline
We frequently receive calls from children of adult parents, many from other states, asking what can be done about parents who are becoming forgetful or should not be driving. Other fact patterns include older citizens who do not have close relatives to look after them. Financial exploitation of elderly citizens is also a serious problem in South Florida. In such situations, Florida Statute 744 provides guidance as to what procedure to follow:
(1) A petition to determine incapacity is filed. This can be done by children, other relatives or any other adult person. In some cases, the Florida Department of Children and Families steps in and files the petition, particularly where no family members are available. The petition will set forth the basis for believing that the person lacks capacity.
(2) A petition to appoint a guardian will be filed at the same time, typically in conjunction with an application for appointment as guardian, wither by a relative or a professional guardian. The petition will lay out why the applicant should be appointed as guardian and will state the qualifications of the applicant. A person with prior felony convictions cannot legally serve as guardian.
(3) A petition for the appointment of an Emergency Temporary Guardian may also be filed if there is an immediate danger to the alleged incapacitated person. If the court decides that there is a danger, a temporary guardian will be appointed during the pendency of the proceeding.
(4) An attorney will be appointed to represent the alleged incapacitated person. This is due to the fact that guardianship proceedings involve the removal of rights from a person. Additionally, three committee members will be appointed to meet with and examine the alleged incapacitated person. One will be a doctor, the second a psychologist and the third, a lay person. Their role is to report back to the court on their findings and conclusions after meeting with the alleged incapacitated person. Each will file a written report to the court.
(5) A final hearing will be scheduled at which time the court will consider the reports and may also hear live testimony concerning the issue of capacity of the alleged incapacitated person. Based upon the evidence at this hearing, the court will determine whether the alleged incapacitated person lacks capacity to manage some or all of their life activities, including managing finances and property, entering into contracts, bringing lawsuits or being sued, making decisions about medical care, residence and socialization. Additionally, the court will determine whether the alleged incapacitated person can continue to drive and/or vote. Once this is done, and assuming some or all rights are removed by the court, the next step is for the court to decide if there are less restrictive alternatives to guardianship in this particular person’s situation.
(6) Less restrictive alternatives would typically include previous appointment of a person or persons as attorney-in-fact pursuant to a durable power of attorney and appointment of a health care surrogate either under the power of attorney in under a separate health care surrogate document. The court will also look to see whether a living will has been signed. If these documents do not exist (and in some instances even if they do), the court will go to the next step, which is to appoint a guardian.
(7) In determining who will be guardian, the first consideration is whether the now incapacitated person, at an earlier time, designated someone to act as guardian for them in the event they ever needed a guardian. If so, the court will typically give that designation great weight. If not, the court will consider the application or applications before it and decide which applicant can best serve the incapacitated person’s needs. Family will be given preference but close family relationship is not necessarily dispositive of the issue.
(8) Once a guardian is appointed, the guardian will be responsible for whatever duties the court assigns to them. The guardian will have to file an annual plan and annually account to the court if he or she is responsible for finances of the incapacitated person. These reports are audited and reviewed. Additionally, all guardians are required by statute to be represented by an attorney. Fees are permissible, both for the guardian and the attorney, out of the ward’s assets, but are reviewed and must be approved by the court. Guardians are limited by statute as to what actions they can take on their own and there are a number of actions that a guardian may need to take which require court approval and the assistance of the attorney for the guardian. Particularly in guardianship matters, the rule of thumb is that it is better to ask permission than forgiveness.
*Note: There are some situations when an adult individual finds the need to have a guardian serve for them, even if they do not lack capacity. In these instances, a voluntary guardianship of property is possible.
Guardianship of Property of Minors
In situations where minors are to receive more than $15,000 in settlement proceeds, Florida law requires that the money be placed into a guardianship account. The effect of this statute is to provide a mechanism to protect a minor’s settlement proceeds, even from the minor’s parents. Even where parents are appointed as guardians of this property, courts will often require that the money be placed into a depository account. This type of account requires a bank to accept responsibility for the assets with the understanding that no distributions from the account will be made unless ordered by the court. If a bank violates this rule, even if the money was withdrawn by a family member, the bank can be required to refund the money back into the minor’s account. The bank would be left with an action against the party withdrawing the money in order to be reimbursed. This protection comes at a price, however. The guardian of a minor’s account will have to retain and pay counsel, file annual reports, and pay annual fees, all often out of the assets of the minor. Another disadvantage is that the minor will have unrestricted access to this money upon reaching majority. Frequently, the money is then squandered by the very person it had so carefully been preserved for. Better practice is to arrange structured settlements which schedule payouts over time and do not require the creation of a guardianship account.
Developmentally Disabled Adults
The Florida Guardian Advocate statute can be found in Chapter 393. Unlike formal guardianship proceedings, the court can appoint a guardian advocate without an adjudication of incapacity if the person’s incapacity is limited in nature. Before commencing a guardian advocacy proceeding, an effort should be made to determine if the developmentally disabled person nevertheless possesses testamentary capacity. If so, it may be more effective to prepare powers of attorney and health care surrogacy documents than to go through the process of having a guardian advocate appointed.
Final Thoughts and Concerns
Many guardians are parents, children or other close relatives of the disabled person. In becoming guardians, they frequently assume a role they are untrained and unprepared to fill. Furthermore, consideration should be given to an alternative plan should the initial guardian prove unable to fulfill his or her duties. Contingency plans should also be made in the event a guardian is suddenly unable to serve due to accident, illness or even death. Professional guardians can step in under these circumstances, but the best practice is to be ready in advance so as to avoid making a bad situation for a guardian into a worse situation for their ward.
* For additional questions and concerns, please feel free to contact me. *
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