Jacksonville Guardianship Lawyers
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Guardianship is a court proceeding in which a judge appoints a person or entity as a guardian to make decisions on behalf of another, called the ward, who is unable to make certain decisions because he or she is either incompetent or is a minor child. The court also appoints guardian advocates for developmentally disabled adults. The guardian may be appointed to manage the ward’s money and property, the ward’s health care, or both. It is highly recommended to consult with a skilled Jacksonville guardianship lawyer in such situations.
When Is Guardianship Appropriate?
In Florida, legal guardianship might refer to:
- Adult guardianship of a minor child
- Guardianship for adults with mental disabilities
- Guardianship for adults who have become incapacitated
On this page, we will focus primarily on this last type of guardianship: the authority to make decisions on behalf of another adult who is no longer capable of making decisions for themselves. If you have questions about a specific scenario you’re dealing with, don’t hesitate to contact our Jacksonville guardianship lawyers for advice.
This situation most often arises after serious or unexpected accidents, the rapid onset of dementia or mental disease, or ongoing behavioral health episodes.
In many instances (particularly those involving the elderly), the incapacitated person (i.e., the ward) might have already executed a power of attorney appointment, designated a health care surrogate, or created other instruments appointing someone who can act on their behalf. In those cases, the legal guardianship process may be unnecessary.
But if the ward has not executed those documents or is behaving in a way that harms him or herself financially or healthwise, it’s a good idea to talk to a guardianship litigation law firm in Jacksonville as soon as possible.
Who Can Become a Guardian in Florida?
There are really two answers to this question.
The first pertains to the question of who can file the petition to determine incapacity. Perhaps surprisingly, any adult can petition a Florida court to deem another adult incapacitated. The person does not need to be a relative. However, if the court finds that the petition was filed in bad faith, the petitioner can be held responsible for attorney’s fees and court costs (and those can be significant).
The second pertains to the question of who can actually serve as guardian once incapacity has been determined? Florida law only requires that the guardian be “fit” and “qualified to act as guardian,” and the court is allowed to make that determination in its own discretion. However, the court must give preference to a person who is related to the ward, either by blood or by marriage. If you have questions about your eligibility to become a guardian, contact our Jacksonville guardianship attorneys today.
In deciding who can become the guardian in Florida, the court will consider:
- The relationship between the potential guardian and the ward
- The ward’s wishes, if he or she has expressed any
- The guardian’s education level
- The guardian’s financial ability
- Evidence of the potential guardian’s character, responsibility, and fitness to serve as guardian
- Any other factor the court might reasonably consider relevant
Guardianship of the Person vs. Guardianship of the Property
There are two different aspects of guardianship pertaining to adult wards in Florida.
- Guardianship of the Person: The ability to make decisions affecting the ward’s personal and legal interests, including medical care, travel, residence, social schedule, etc.
- Guardianship of the Property: Legal authority over the ward’s assets, including bank accounts, real property (e.g., homes, land, real estate), personal property, stocks, etc. The guardian has a duty to identify the assets, safeguard them, spend them responsibly for the ward’s benefit, and account for them in a report to the court each year. The guardian might also handle lawsuits involving the ward (either brought by or against the ward) and may be able to hire a lawyer from the ward’s assets in those cases.
While a court will often grant both forms of adult guardianship to the same person, there is no requirement to do so. It is possible for one adult to serve as Guardian of the Person and a different adult to serve as Guardian of the Property. Likewise, the court might decide that only Guardianship of the Property is necessary and therefore decline to appoint a Guardian of the Person.
The court also has the authority to grant a limited version of either form of Guardianship, reserving some specific rights for the ward.
The precise determination in your case will depend on the facts and circumstances surrounding the ward’s incapacity. Our guardianship lawyers can help you understand how a court might construe your situation.
Is Adult Guardianship Permanent in Florida?
In many cases, yes. But not always. Legal guardianship can expire:
- When the ward turns 18 (in cases involving minor guardians)
- When the ward dies (typical in cases involving elderly wards whose incapacity is not cured)
- When certain conditions are met (e.g., the ward demonstrates evidence of capacity or improving health)
- When the court is presented with evidence of bad faith or impropriety by the guardian
- When the guardian becomes unfit or unqualified to serve
- When the guardianship is successfully contested
Sometimes, the court will grant guardianship over both person and property, but only for a limited period of time. This gives the court a chance to reassess the situation later.
Family members and friends may have conflicting opinions on who should help and how to make the right decisions for the ward. For example, who should be named as the guardian of an incapacitated child or parent? Where should the elderly parent live, at home or in an assisted living facility? How much money is needed monthly to care for the person? Who will make responsible decisions about the ward’s expenses? What does the ward need in terms of medical care and who should provide it?
These issues can be a source of fighting among the children and other relatives of a ward, and they can tear a family apart. A Jacksonville guardianship attorney at Beller & Bustamante, P.L. has the skill and experience to represent you in these often emotional and difficult cases.
What Is Guardian Advocacy?
When a child with developmental disabilities turns 18, the state presumes they can make decisions for themselves. However, it’s likely that person still needs someone to continue caring for them. Guardian advocacy is the legal process of appointing a guardian, often a parent, for adults with developmental disabilities.
Under Florida statute, a developmental disability is a disorder or syndrome attributable to one of the following:
- Intellectual disability,
- Cerebral palsy,
- Spina bifida,
- Down syndrome,
- Phelan-McDermid syndrome, or
- Prader-Willi syndrome.
The disability must manifest before the individual turns 18 and be expected to continue indefinitely.
Guardian Advocacy Process
In Florida, “courts are encouraged to consider appointing a guardian advocate, when appropriate, as a less restrictive form of guardianship.” To obtain guardian advocacy, you need to file a petition with the court. As with any type of guardianship, a guardian advocate can ask to serve as guardian of the property, person, or both.
The petition must include basic information about the disabled individual, evidence of the person’s developmental disability, and specify the exact areas in which the individual lacks decision-making abilities. As the petitioner, you also need to explain why you are qualified to serve as the guardian advocate.
A Jacksonville guardian advocacy lawyer at Beller & Bustamante, P.L., can help you collect the necessary information to file the petition. We know what documents and evidence you need to build a strong case for a guardian advocate. After submitting your petition, one of our skilled attorneys will represent you in the court proceedings and beyond.
After being appointed as a guardian advocate, there are many obligations and duties to complete each year. For example, you must submit a plan with the court explaining what services your child needs to help with their developmental disability. As the guardian, you also need to compile an inventory of your child’s assets and file an annual accounting with the court that shows how the assets have been used and managed.
Speak with a Jacksonville guardian advocacy attorney to begin the process of securing guardian advocacy over your child as they enter adulthood.
Skilled Jacksonville Guardianship Attorneys Handle All of Your Guardianship Needs
Don’t let just anyone handle your Florida guardianship case; there is simply too much at stake. Contact our experienced Jacksonville guardianship lawyers for a consultation at (904) 288-4414 to begin discussing your guardianship case today.