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Adult Guardianship in Florida

Adult Guardianship in Florida

As we age, many adults will experience some decline in health, including cognitive decline. In fact, per the Centers for Disease Control and Prevention (CDC), about 11.7% of all adults will experience some form of cognitive decline once they are over 65. Cognitive decline can be defined as a relative loss of mental capacity and functioning. Cognitive decline can happen for many reasons, including organic brain disorders like dementia or due to stroke or other health conditions. As we age, the risk of decline becomes more pronounced. In addition to the human toll of decline, there are legal concerns facing those who begin to have diminished mental capacity in old age. When a person begins to lose the ability to make legal decisions, there is a notable risk of exploitation. It is extremely important that family and friends take reasonable measures to protect against elder abuse and fraud. A Miami estate planning lawyer can help you and your family take the necessary actions to establish legal protections for your aging loved ones. Sometimes, this may mean a guardianship. 

What is Guardianship?

When a person can no longer make legal decisions for themselves, a court proceeding known as guardianship may be needed in order to give someone else the right to make those decisions on their behalf. Guardianship is not a private process though. It is a public court proceeding and comes with certain risks. To become someone’s guardian in Florida, you must follow these steps:

  • File a petition for a court requesting appointment as the guardian.
  • Give notice to the individual for whom you are seeking guardianship
  • Give notice to any heirs, relatives, or family members who would have an interest in the individual’s care (such as their spouse, children, or partners)
  • Obtain a medical determination stating the grounds for obtaining guardianship
  • Go to court and prove to a judge that guardianship is necessary to protect the individual

You should be aware that guardianship judges are highly skeptical, as they are charged with protecting individuals who are under a guardianship. If successful, the individual will be made a “ward of the court,” meaning the court takes the responsibility for that person. 

Power of Attorney vs. Guardianship

A power of attorney (POA) is a privately drafted document that gives an “agent” the ability to make certain decisions for another individual. Powers of attorney can control things like healthcare decisions, financial decisions, and much more. Once a person has a valid POA, a guardianship is often not necessary, because while the person was capable of doing so, he or she made the choice to elect someone to handle their affairs in the event of cognitive decline. A guardianship, by contrast, is a court proceeding that becomes necessary when no POA is in place. There are other occasions when a POA may not be sufficient though. For instance, perhaps a power of attorney is in place, but a relative or caregiver is actively abusing or exploiting a senior. In these situations, a guardianship proceeding may be necessary to get the court involved to protect assets and legal rights. 

Florida Law and Adult Guardianship

Under FLA STAT. 744.3201, when filing a petition for guardianship, you must meet the following requirements:

  • Must be verified (signed by the person seeking appointment as guardian)
  • Must list your name, age and address, as well as your relationship to the person you claim has lost mental capacity and decision-making abilities
  • List the name, age, county, and address of the mentally incapacitated person
  • Must clearly allege the reasons why you believe they are incapacitated
  • List names and addresses for any of the person’s family members and/or their primary care physician
  • Provide a list of rights as required by statute
  • List any relatives or potential heirs who are minors or who are also mentally disabled
  • File with the court and provide a copy to the allegedly disabled adult

Benefits of Advanced Planning Over Guardianship

Unlike a POA, a guardianship is public. Guardianship has benefits, such as getting a court involved. But a POA is generally preferable because it gives the individual the right to choose who makes their decisions, rather than a court deciding. Plus, personal information does not become a public record. If you and your family are seeking to protect an aging loved one, call the Sejour-Gustave Law Firm, PLLC and speak with a Miami estate planning attorney today. The longer you wait, the more likely you will have to go to court and spend thousands on guardianship. Early planning is generally the best way to go.

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