In Florida, a Guardianship is a process where the court appoints an individual/Guardian to exercise authority and make decisions on behalf of someone who is determined to be legally incapacitated.
A “Ward” is the person who is incapacitated due to age, mental incapacity, or physical disability.
The Guardian is responsible to protect the assets and liabilities of the ward I a guardianship of the property. The Guardian of the person must make important decisions on behalf of the ward regarding where they live, whether they can drive or vote, and their social atmosphere.
In order to determine if a person is incapacitated, an examining committee is typically appointed made up of three members and if a majority of the members believe that an individuals is incapable of making decisions regarding their assets and liabilities on their decision-making abilities, then a report is prepared which shows the extent of the lack of capacity.
In this process, the ward is required to have an attorney appointed for them to protect their interests in this legal process.
The Examining committee is usually made up of a doctor, social worker, and psychologist who have backgrounds in the areas of mental illness.
It is possible that the ward has a partial incapacity and this would require a limited guardianship. The Examining Committee would make recommendations as to which rights should or should not be removed from the ward. The attorney who is appointed for the ward can challenge the opinions of the examining committee and request the ward to return rights which the examining committee believes should be removed.
It is also necessary for the attorney who is appointed to determine whether any Pre-need or advanced directives were filed by the ward when he or she had capacity. These include a decision made previously to appoint a health care surrogate, power of attorney, and wills. These documents can be used to demonstrate the wishes of the ward before they were determined to be incapacitated.
Any adult who is a resident of the state of Florida without a criminal background can act in the capacity of a guardian in the State of Florida. Certain relatives who do not reside in Florida can act as Guardian.
Private or professional guardian may be appointed when there is a disagreement because the family members as to who should be appointed the guardian of the ward.
A guardian is responsible to properly manage the assets and liabilities of the ward. They are responsible for doing an annual accounting which is filed with the court to demonstrate the status of the ward’s assets.
The Guardian is also required to file an annual plan with medical documentation to show that prognosis of the ward and that the ward is properly being cared for.
A Guardian is required to be represented by an attorney and is responsible for any mismanagement of the accounts of the ward. Failure to perform their duties appropriately may result in the removal of a Guardian for the ward.
Finally, Guardianship is not necessarily permanent and it is possible for the ward to have some or all of their rights restored in the event that they regain capacity. This is done by filing a petition with the court for the restoration of the wards rights.
Please contact Kenneth M. Kaplan, Esquire in Miami, Florida, if you have any other questions regarding the guardianship laws in the State of Florida at 954-260-5479.