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Understanding Guardianship

Understanding Guardianship

In Florida, guardianship is a legal proceeding by which a competent individual or qualified institution is appointed as the guardian of an incapacitated person. This guardian then has the authority to exercise the legal rights of the incapacitated person on their behalf. In some cases, a bank trust department may be appointed to care for the incapacitated person’s assets. 

What Constitutes an Incapacitated Person?

In order to be deemed incapacitated, a person does not actually have to be comatose or entirely unable to function. Rather, a person is deemed incapacitated by the court if they are found unable to manage some of their property or to meet and maintain the health and safety requirements necessary to maintain themselves. If someone believes that another adult is incapacitated and unable to care for themselves or their property, they can file a petition with the court asking the court to make a determination as to the other person’s capacity. In this petition, they will include all factual information informing their belief that the individual is incapacitated. At that point, the court may form a panel of experts and medical professionals who will review the case and submit a report of their findings to the court. It is important to note that at least one individual on this panel must have experience with the specific type of incapacity that is alleged. If the majority of the panel finds that the person in question is not incapacitated, then the court must dismiss the petition. Otherwise, if the committee finds the individual to be incapacitated in some regard, the next step is determiniung whether the individual is wholly or partially incapacited. 

Who Can be a Guardian?

Almost anyone can be a guardian, provided that they are an adult resident of Florida and do not have any felony convictions and are capable of meeting and fulfilling the required duties of a guardian. A Florida resident does not have to be related to the individual in order to be their guardian. However, if they live outside of Florida, they must be a relative in order to serve as their guardian. 

What are a Guardian’s Responsibilities? 

A guardian is responsible for acting prudently and in the best interest of the ward (incapacitated person). If they are responsible for caring for their finances, the guardian must inventory all assets, make responsible and careful investments in the interest of the ward, and file detailed annual reports with the court documenting all of this. Depending on whether the individual was found wholly or partially incapacitated, certain rights will have been assigned to the guardian on their behalf. The guardian is responsible for exercising these rights, such as medical care, personal care (hygiene, eating, etc.), and mental health care on the ward’s behalf. The guardian is responsible for developing and preparing a detailed care plan for the ward each year and submitting it to the court. 

Talk to a Miami Estate Planning Attorney 

If you want to pursue a guardianship for a loved one, the experienced Estate Planning Attorneys at the SG Firm can help you navigate the process. Contact us today to schedule a free consultation.

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