What is Guardianship?
Guardianship is the legal process allowing an individual or individuals to legally render financial and/or physical decisions for another individual.
A Guardianship Lawyer assists in dealing with incapacitated family members or minor children.
The Florida Court System oversees guardianships. A Florida judge appoints an individual to care for another individual. A guardianship is a necessity when an individual can no longer make their own decisions.
Guardianship may also be needed when someone has become vulnerable to fraud or undue influence. The Guardian appointed by a judge to make decisions for another individual. Once a judge determines an individual needs a guardian, they are called the Ward. A guardian has authority to make personal and financial decisions for the Ward. The Ward may be an adult with a physical or mental disability or a minor.
Types of Guardianships
There are three types of Guardianships defined by the Florida Statutes.
1. Guardianship of an Adult- The Guardian of an Adult may be:
• Guardian of the Person and/or Property : A guardian of the person can only make decisions concerning the Wards person. For example, a guardian of the person makes all health-care decisions for the Ward and determines the Ward’s residence. A guardian of property can only make decisions on behalf of the Ward concerning their assets. For example, a guardian of property manages the Ward’s money and pays the Ward’s bills.
• Plenary Guardian: Plenary means complete. A Plenary Guardian is the Guardian of both the Person and Property of the Ward.
• Voluntary Guardian: A Voluntary Guardian is when the Ward elects to appoint a guardian even though they can still make sound decisions.
2. Guardianship of a Minor- The Guardian of a Minor
• Guardian of the Person: The Guardian of the Person of a Minor can make all decisions regarding the minor’s health, school and other activities that a parent can make.
• Guardian of Property: In Florida, if a child inherits $15,000.00 or more, they must be appointed a Guardian of Property. Parents of a minor are not automatically Guardians of Property of their child. Parents must be appointed the Guardian of Property for their child.
• Plenary Guardian of the Minor: A Plenary Guardian of a Minor may make both personal and property decisions on behalf of the minor.
3. Guardian Advocacy- Guardian Advocacy is a special type of guardianship for individuals born with a developmental disability when they turn 18 years old. Guardian Advocacy is a streamlined process.
How does a court determine an individual requires a guardian?
Before an individual can be appointed to be the guardian of another, the Court must first deem the proposed Ward to be incapacitated. The legal process for determining whether someone is incapacitated is called the Determination of Incapacity. The determination of incapacity involves a three-person examining committee. Each member of the examining committee evaluates the Ward and files a report. The Court utilizes the reports to decide if the Ward has the capacity to make sound decisions and exercise their rights. Minors do not require a determination of incapacity as minors are legally already incapacitated until 18 years old. Additionally, adults born with developmental delays are not required to be evaluated by the three-person examining committee.
Legislative Intent: It is the intent of the Florida legislature for the least restrictive kind of guardianship to be granted. The least restrictive form means only to give a guardian the rights the Ward cannot exercise him or herself. When a guardian is given only some of a Ward’s rights, it is a limited guardianship. A limited guardianship is necessary in circumstances where a court finds the Ward able to exercise some but not all, of their rights. For example, a ward may be able to determine their residence, but not able to enter into a contract.
There are documents that a person can put in place prior to an incapacity so that a Guardianship through the courts is unnecessary. E.P.P.G. of St. John's can walk you and your family through that process to avoid a lengthy Court involved guardianship.
If you think a guardianship may be appropriate and would like representation to help you through this complicated process, please call us at 904-875-3774 (EPPG) to discuss your situation today.