It is difficult and emotional to watch a loved one lose the ability to live independently. There is the fear that they may be taken advantage of or get into a harmful situation. With adult guardianship, the court will appoint a capable person to make important decisions for your loved one. Although certain rights are taken away, adult guardianship may provide a more enjoyable life for a person in need.
This blog will explain what you need to know about adult guardianships in Florida.
What Is Adult Guardianship in Florida?
Adult guardianship is the legal process where the court determines a person lacks the capacity to care for themself and appoints someone to act on their behalf. A “ward” is the person who the judge decides lacks decision-making capacity. Once the judge makes that determination, the ward may lose certain rights, such as the right to have a driver’s license and the right to travel. The guardian (or conservator) has the legal authority and responsibility to make decisions for the ward.
In Florida, a judge will grant guardianship only when no less restrictive alternative will suffice. Some examples of less restrictive alternatives are:
- A durable power of attorney,
- A living trust, or
- Health care surrogate or proxy.
Depriving the ward of their legal rights is quite impactful – removing rights from the ward and giving these rights to another person. That’s why a judge will explore these other options before appointing a guardian.
Types of Guardianship
Guardianships come in all shapes and sizes, depending on the ward’s capacity and needs.
Guardian of the Person
A guardian of the person is responsible for making decisions that impact the ward’s welfare, such as medical and mental care, accommodations, and social well-being.
Guardian of the Property
Guardianships of the property require the guardian to manage the ward’s assets. This includes making financial and legal decisions regarding assets, such as bank accounts, real property, and investment accounts.
Guardian of the Person and Property
If the court finds that a person is totally incapacitated, the judge will appoint a guardian of the person and property (also known as a plenary guardian). A plenary guardian has full decision-making authority over the ward. As long as the court approves, a plenary guardian can do the following on behalf of the ward:
- Enter into contracts,
- Sue and defend lawsuits,
- Apply for government benefits,
- Decide where the ward lives,
- Decide who the ward associates with,
- Agree to or decline medical treatment, and
- Sell or manage property.
This list is not exhaustive by any means. Seeing how much power a plenary guardian has, this is the most restrictive type of guardianship.
Adult Guardianship Process
Florida statute lays out a multi-step process for initiating a guardianship proceeding.
Petition the Court
To start the guardianship process, you must file two petitions with the local probate court.
The first petition, Petition to Determine Incapacity, requests that the court evaluate the Alleged Incapacitated Person’s (AIP) ability to make their own decisions. The court will appoint a lawyer to represent the AIP throughout the guardianship process. If the AIP is capable, they can choose their own legal representation.
The second petition, Petition for Appointment of Guardian, contains information about the guardian’s qualifications and is considered after the court makes its determination about the AIP’s capacity.
Within five days of filing the Petition to Determine Incapacity, the court selects a three-member examining committee to complete a comprehensive examination of the AIP. Florida statute has specific requirements for serving on the committee, but all members must be either mental or physical health experts. The examination will include a physical exam, a mental health exam, and a functional assessment. The committee is required to submit their reports and individual determinations to the court within 15 days.
The court will schedule a hearing within 30 days of receiving the examining committee’s reports. At the hearing, the judge does the following:
- Determine whether the AIP lacks total or partial capacity,
- Evaluate the Petition for Appointment of Guardian, and
- Appoint a guardian.
The judge’s order will clearly define the guardian’s rights over the ward. If there is more than one person requesting to be guardian, the process can take longer over multiple hearings.
The guardianship process can be lengthy and emotionally draining. An experienced guardianship law attorney can help you through this legal procedure and bring you some peace of mind.
Duty of a Guardian
A guardian’s duties depend on if they are a guardian of the person, property, or both. However, all guardians are fiduciaries of the ward, meaning they must act in the ward’s best interests. Guardians also have annual reporting requirements.
Duties of Guardian of the Person
Guardians of the person need to provide and implement a guardianship plan. This plan outlines how the guardian intends to provide for the ward’s mental, medical, personal, and social care – where the ward will live, who will provide medical care, and what sort of social interactions they will have. The guardian must file an initial plan with the court and provide an annual plan after that.
Duties of Guardian of the Property
A guardian of the property has a duty to manage and protect the ward’s assets. The guardian must file an initial guardianship report, which includes an inventory of assets and a plan. After that, the guardian needs to file an annual accounting with the court. The accounting must include a full and accurate account of all transactions involving the ward’s assets.
In the case of a plenary guardianship, the guardian may have all of the duties described above. Remember, a guardian can only exercise those rights and duties delegated by the court.
Contact the Jacksonville Guardianship Law Lawyers at Beller & Bustamante, P.L.
The process of securing adult guardianship requires a lot of time and emotional energy. We’re here to help you with all of your guardianship needs. Whether you want someone to represent you in court or need help with your duties as a guardian, contact us. Our skilled Jacksonville legal team has 40 years of combined experience helping families.
As we work toward your goal, we take time to educate our clients along the way. This will help you feel confident and prepared for the process ahead.
Reach out to Beller & Bustamante, P.L. today for effective legal assistance.