Guardianship LawyersIf you have or are planning to initiate guardianship over a loved one, it’s helpful to know what lies ahead. Guardianship proceedings can be lengthy and emotional. The thought of attending the hearing and answering questions from a judge may seem intimidating, but rest easy. In this blog, we’ll explain the guardianship process and what you can expect at a guardianship hearing.

Initiate the Guardianship  

To start the guardianship process, you must file two petitions. It’s important to know what goes into these documents because they provide the roadmap for the guardianship hearing. The information you include in the petitions is what the judge will address in court.  

Petition to Determine Incapacity

The Petition to Determine Incapacity asks the court to decide if the Alleged Incapacitated Person (AIP) lacks competency. The petitioner (the person filing the petition) must provide information, such as:

  • Their relationship to the AIP;
  • Facts to support their belief that a guardianship is necessary;
  • The rights that the AIP is incapable of exercising; and
  • Names, addresses, and relationships of the AIP’s next of kin.

Any adult can file a petition. Although Florida law does not require petitioners to have legal representation, it is advantageous for an experienced guardianship lawyer to help you through this process. 

Petition for Appointment of Guardian

The second petition to file is the Petition for Appointment of Guardian. This is the petitioner’s chance to explain why a guardian should be appointed. The document must also specify the following:

  •  The type of guardianship (limited versus plenary) the petitioner is seeking;
  • Reasons why other less restrictive alternatives to guardianship are insufficient; and
  • The nature and value of any property that’s subject to guardianship.

After the petitions are filed, the probate court will schedule a guardianship hearing. Notice and copies of the petitions must be given to the AIP and served upon all family members named in the petition. Prior to the hearing, the probate court will appoint an attorney (also known as a “guardian ad litem”) to represent the AIP and investigate the alleged facts on behalf of the court. Alternatively, the AIP can select their own lawyer if capable of doing so.

Evaluation Before the Hearing  

Within five days of filing the Petition to Determine Incapacity, the court will select an examining committee to evaluate the AIP. The committee consists of three members, one of which must be a psychiatrist or other physician. The two remaining members can be either nurses, doctors, social workers, or any other professional who can give an expert opinion on the AIP’s mental and physical state.

The examination of the AIP must include a physical examination, mental health examination, and a functional assessment. Committee members can meet with the AIP’s physician and family members as part of the evaluation. The examining committee has 15 days to submit their written reports and conclusion about the AIP’s capacity.  

What to Expect at the Hearing

The court must conduct a guardianship hearing within 30 days of receiving the examining committee’s reports. The AIP needs to be present at the guardianship hearing in court unless there’s good cause for their absence.

At the hearing, the judge will rule on whether the AIP has sufficient capacity to exercise his or her rights. If the court finds by clear and convincing evidence that the AIP is incapacitated, the judge will appoint a guardian.

Determining Incapacity

The court evaluates all evidence to decide if the AIP has the capacity to function independently. As part of this evaluation, the judge must make the following determinations:

  • The exact nature and scope of the AIP’s incapacities;
  • The areas in which the AIP lacks decision-making capacity;
  • Any legal disabilities of the AIP; and 
  • The specific rights that the AIP can’t exercise. 

To make these findings, the judge may ask for witness testimony from the petitioner, medical professionals, the AIP, and the AIP’s family members. The judge will also evaluate any documents submitted, such as medical reports and evaluations. After considering all the evidence, the court will rule on the AIP’s capacity to make informed decisions about their care, health, and safety. 

Appointing a Guardian

If the judge finds that the AIP is partially or fully incapacitated, a guardian must be chosen. The judge will evaluate the proposed guardian’s qualifications and relationship to the AIP. In Florida, a guardian can be any adult 18 years old or older who has no felony convictions and is either a Florida resident or a qualified relative who is not a Florida resident.

Guardianship Hearing Preparation

There are several things you need to do to prepare for a guardianship hearing. First, make sure all necessary parties are served with the petitions. Second, collect any additional information you think will help the judge determine the AIP’s incapacity. Third, familiarize yourself with all of the evidence you’re submitting. As the petitioner, it’s almost guaranteed that the judge will question you about your relationship with the AIP, your knowledge of their mental and physical capabilities, and your fitness to serve as the guardian. An experienced guardianship lawyer can help you prepare for a guardianship hearing. 

Contact Our Lawyers at Beller & Bustamante, P.L.

The process of securing guardianship over a loved one can be overwhelming. Not only are you navigating an unfamiliar legal process, but you’re facing the reality that someone you love needs help functioning in life. That’s where we come in to help. With over 40 years of combined legal experience, we know the ins and outs of Florida guardianship law well. The guardianship attorneys at Beller & Bustamante, P.L., can help you write and file the petition, collect evidence, prepare your testimony, represent you in court, and assist with your duties as guardian if appointed. 

What sets us apart from other firms is the time and attention we give our clients. We don’t just tell you what to do throughout the process. Instead, we educate and guide you so you feel confident in your decisions. Give us a call or go online to contact us and schedule a consultation to discuss your case.