What is a Guardianship?
Guardianship is a legal process supervised by the Circuit Courts whereby a guardian, typically a family member or professional, is appointed to exercise the legal rights of a person who is incapacitated (referred to as a "ward"). Generally, guardianship proceedings are initiated when family believes an individual is no longer able to manage their affairs due to an accident, illness or disability.
Guardianships are sometimes needed for minor children if their parents pass away or are no longer able to care for them. A minor child may also need a guardian appointed if they receive a large inheritance, proceeds from a lawsuit or an insurance policy settlement.
How is a Guardianship Established?
The process starts with a petition being filed in Circuit Court asking the judge to determine if an individual is incapacitated. To assist with this determination, the judge will appoint a three-member examining committee of professionals including physicians and mental health specialists to evaluate the person. An examination is conducted and usually includes a physical exam, a mental health evaluation and a functional assessment. The court also appoints an attorney to represent the interests of the person alleged to be incapacitated; however that person is allowed to substitute their own attorney if they so desire.
If a majority of the examining committee members conclude the person is not incapacitated, the judge is required to dismiss the petition. However, if the examining committee finds the person is unable to exercise certain rights, the court will schedule a hearing to determine the degree of the incapacity and the extent to which a guardian may be needed. If a guardianship is necessary, the court will appoint a guardian who has specific duties and responsibilities, which will be subject to court review and approval, including:
- Complete an inventory of the ward's property
- Invest and maintain the ward's property prudently
- Develop a detailed plan for the ward's care and present it annually to the court for the review along with a physician's report
- Account for all transactions on the ward's behalf, including filing detailed annual reports with the court
- Use the ward's property and resources for their care and support
- When necessary, obtain court approval for certain financial transactions
A guardian can be any adult resident of Florida or certain relatives who live outside the state. However, persons who have been convicted of a felony or certain other crimes will not be eligible to serve. Additionally, there are professional and public guardians as well as institutions such as bank trust departments or nonprofit corporations who can be appointed as guardians.
Because the rules and procedures for a guardianship are complex, a guardian is required to be represented by an "attorney of record" to assist throughout process. Guardians will be required to complete a court-approved training program, provide certain background information prior to approval by the court and may be required to furnish a bond.
Can Guardianship Be Avoided?
Establishing a Guardianship is a complex and expensive process. Unfortunately, it can also be a very painful process for families having to seek court intervention to declare a loved one incapacitated. In order to respect the rights of the individual, Florida courts are required to first look at less restrictive alternatives before establishing a Guardianship. Therefore, in many cases, a Guardianship can be avoided with proper planning.
Putting into place documents such as a Durable Power of Attorney or a Trust that names successor trustees before there is an incapacity can generally minimize or eliminate the need for a guardian. With these documents, a person can plan for the possibility of a future incapacity and give a trusted family member, friend or professional authority to manage their affairs without the need for court intervention. Planning in advance for incapacity generally costs a fraction of the price of a Guardianship and avoids putting loved ones through this painful process.
If a Guardianship cannot be avoided, the process can be simplified. A person can designate a pre-need guardian for themselves or their minor children. This is the process of appointing a person you would like to serve as guardian in the event you become incapacitated or if it is necessary for a guardian to be appointed for your children due to your death or incapacity. Designating a pre-need guardian can avoid disputes between family members about who should serve as a guardian.
If you need to discuss issues relating Guardianships, or would like to plan now to avoid Guardianship, contact my office today to discuss the options.