In Jacksonville, a guardian for an adult ward must be appointed by a state circuit court. There are two types of guardianship — voluntary and involuntary. In a voluntary guardianship, the ward is mentally competent and requests the appointment of a guardian. In an involuntary guardianship, the ward is incapacitated and a guardian is appointed by the circuit court upon petition.
Since an involuntary guardian can be appointed only for an incapacitated ward, unless a competent ward requests a voluntary guardianship himself, the ward must be declared incompetent before a guardian can be appointed for him. Since an incapacity declaration restricts the rights of the person declared incompetent, an incapacity declaration requires a hearing followed by a court order.
Filing an Incapacity Petition
An incapacity proceeding is initiated when an “interested person” files a Petition to Determine Incapacity with a circuit court to have a particular person declared incapacitated. An “interested person” is someone who has a stake in the outcome of the proceedings, and can be, for example:
- a relative
- a caregiver
- a neighbor
- an attorney
The court will respond to the petition by:
- Appointing a lawyer to represent the allegedly incapacitated person (AIP).The lawyer must be experienced in guardianship matters.
- Appointing an examining committee consisting of a physician and two other health care professionals.
The committee will then interview the AIP, his family and his health care providers, conduct an investigation and report to the judge within 45 days whether they believe the AIP (i) has capacity, (ii) is partially incapacitated or (iii) is totally incapacitated. The lawyer will meet with the AIP and consult with him about the proceeding, to the extent that the AIP’s mental capacity allows this.
The Incapacity Hearing
An incapacity hearing will be held after the examining committee submits its report to the judge. If the examining committee reported that the AIP has capacity, the incapacity petition will be dismissed. If the examining committee reported that the AIP is partly or totally incapacitated, a hearing will be held to determine whether the AIP is in fact incapacitated.
Anyone involved in the case can present evidence of capacity or incapacity. To have the AIP declared incapacitated, the court must find the AIP partly or entirely incapacitated by “clear and convincing evidence.” — a standard that is higher than the standard used in a civil lawsuit but lower than the standard used in criminal court.
Consequences of an Incapacity Declaration
If the AIP is declared incapacitated, the court must appoint a guardian for the AIP, unless a durable power of attorney or a health care surrogate would suffice to meet the AIP’s needs. The court is not required, however, to accept the guardianship petition filed by an “interested person” who also filed the Petition to Determine Incapacity.
Initiating Guardianship Proceedings
Once the AIP (now known as the proposed ward) has been declared partly or fully incapacitated, the proposed guardian must file two documents with the court (in addition to the initial Petition to Determine Incapacity):
- Petition for Appointment of Guardian (asking the court to appoint a guardian); and
- Application for Appointment as Guardian (asking the court to appoint the petitioner ad guardian)
To be appointed as guardian in Florida, you must be at least 18 years old and of sound mind. The court is likely to look at many other factors, however, especially if the guardianship is contested between two or more people. If the proposed ward expressed a preference for the identity of his guardian before he became incapacitated, the court must give it weight.
Appointment of a Guardian
The guardian will be appointed to one of three types of guardianships under Florida law:
- Guardian of the property (to manage the ward’s financial affairs)
- Guardian of the person (to manage the ward’s lifestyle and health care)
- Plenary guardian (a combination of guardian of the property and guardian of the estate)
The nature of the appointment will depend on the ward’s needs and the degree of the ward’s incapacity. The prevailing legal standard is based on the best interests of the ward.
Legal Rights Transferred to the Guardian
Depending on the circumstances, and depending on whether a ward is considered partly or fully incapacitated, the court may transfer some or all of the following rights from the ward to the guardian:
- The right to commit the ward to a nursing home or other proceeding without a formal proceeding
- The right to enter into a contract
- The right to file for divorce
- The right to apply for government services
- The right to file a lawsuit
- The right to determine living arrangements
- The right to consent to medical treatment
- The right to manage finances
- The right to consent to abortion or sterilization
- The right to travel
The ward, however, must be allowed to retain the following rights:
- The right to a retain a lawyer
- The right to access to the court system
- The right to education
- The right to freedom from abuse
- The right to maximum independence (depending on the ward’s condition)
- The right to necessary services
- The right to dignity and respect
After appointment as guardian, a guardian of the property or a plenary guardian must:
- Obtain a surety bond as determined by the court
- File a verified inventory of the ward’s property
- File an annual accounting every year
A guardian of the person and a plenary guardian must: file a health care plan for the ward every year
State Government Oversight
The state of Florida has been exercising increasingly vigorous oversight of guardianship since at least 2015, when reform legislation was passed. The court that appointed the guardian has the authority to remove him. The court clerk’s office is responsible for reviewing each guardian’s annual report, and for reporting any suspicions or irregularities to the court.
Serving Clients in Duval, St. Johns, Clay, and Putnam Counties
Guardianship is a serious commitment that can impact the lives of both guardian and ward, and a botched guardianship arrangement can have lasting consequences. There is simply too much at stake to let just anyone handle matters such as these. Contact the guardianship attorneys at Beller & Bustamante for a no-obligation consultation at (904) 288-4414 to discuss your guardianship case today.