Guardianship is the court designed process that was established to protect and exercise the legal rights of individuals who lack the capacity to make competent decisions in regard to their care and finances. Examples of individuals who need a Guardian are individuals with Alzheimer’s disease, a developmental disability, chronic illness, or any other such condition that causes functional limitations. Before a guardianship is established the court must determine that the alleged incapacitated person (AIP) lacks capacity to exercise their legal rights. Guardianship is the last resort and the court will always look to less restrictive alternatives.
Frequently Asked Questions
What constitutes the Guardianship process?
Any competent adult who can attest to why he or she believes the subject of the guardianship is incapacitated may file a petition with the court to determine the subject’s incapacity. After the petition is filed the court appoints an attorney to represent the alleged incapacity person. Additionally the court appoints an examining committee that will conduct an evaluation to determine the level, if any, of the alleged incapacitated person’s incapacity and will report this to the court.
After this a hearing will be held to review the reports of the examining committee and make a determination of the level, if any, of the alleged incapacitated person’s incapacity. The court then looks to see if there is a less restrictive alternative to a guardianship.
If the individual is determined to be incapacitated, and there are no less restrictive alternatives the court will appoint a Guardian of either the person, the property, of for both the person and property.
How long does this process take?
Once the petition is filed, the court, within five days, will appoint an attorney to represent the alleged incapacitated person and appoint the examining committee. The examining committee must then complete their evaluations and submit them back to the court within fifteen days. The court will then set a hearing to be held within fourteen days after receiving the reports of the examining committee.
What is the examining committee?
The examining committee is a three member committee made of up at least one licensed physician or psychiatrist. The other two members may be either another physician, psychologist, psychiatrist, gerontologist, registered nurse, nurse practitioner, licensed social worker, or a lay person, with the necessary skills to advise the court in the form of an expert opinion.
What are the costs associated with the incapacity process?
The petitioner will pay filing fees at the time of the filing of the petition for incapacity. Additionally, there is the cost of the court appointed attorney who represents the alleged incapacitated person, and the fees charged by the examining committee. If the ward has assets, the cost will be assessed from this, if he does not then the costs will be borne by the state. There may be additional fees after the appointment of a guardian in regard to their service and representation by attorneys.
What constitutes a Guardian of the person?
The guardian of the person has the authority to exercise personal rights that have been removed by the court and delegated to the guardian. These rights include the right to contract, sue and defend lawsuits, apply for government benefits, determine the residence of the ward, consent to medical and mental health treatment, and make decisions about the ward’s social environment or other social aspects of his or her life. The guardian of the person is also responsible for filing an initial Guardianship Plan and an Annual Guardianship plan.
What constitutes a Guardian of the property?
The guardian of the property has the authority to exercise rights over the ward’s property. However, the guardian does not have the authority to sell, transfer, mortgage or donate any of the ward’s property without court approval. Once a guardian of the property is appointed it may be necessary to retitle assets in the name of the guardianship.
What about a Guardian of a minor?
Florida law requires a guardian of the property to be appointed in cases where a minor receives a settlement of over $15,000 as a result of a personal injury, property damage, or wrongful death suit. The court, without determining incapacity, may appoint a parent, sibling, next of kin or other interested person in the minor’s welfare as guardian. When the minor reaches the age of majority the guardianship will terminate.
What are less restrictive alternatives?
The appointment of a guardian is a last resort and the court will always look to other less restrictive alternatives to a guardian. An example of a less restrictive alternative to a guardianship of the person is a valid Designation of Health Care Surrogate. This will allow another individual to make decisions about the health care of the ward. An example of a less restrictive alternative to a guardianship of the property would be a Trust, or Durable Power of Attorney. These documents allow others to manage your property and financial affairs on your behalf.
Who may serve as Guardian?
Any competent adult who is a resident of Florida may serve as guardian. However, the court will give preference to individuals who are directly related to the ward, or who has educational, professional, or business experience related to the services sought. In certain cases the court may appoint a professional guardian or corporate guardian to act as guardian of the person or property.
Who may not serve as Guardian?
An individual who has been convicted of a felony, judicially determined to have committed abuse, abandonment or neglect against a child, or may be unable to perform his or her duties due to illness or incapacity may NOT be appointed guardian.