What Is A Guardianship
A Guardianship is a Court supervised proceeding where a guardian is appointed or selected by the Court to act on the behalf of an incapacitated person or a minor. A guardian must be appointed if the incapacitated person did not designate an agent in a Durable Power of Attorney while he or she was well. In Florida there are severl types of guardianships to govern specific situations.
How We Can Help You
Our guardianship services include:
- Guardianships for incapacitated adults
- Conservatorships for incapacitated adults
- Guardianships for minor children
- Limited Guardianships
- Voluntary guardianships
- Guardianship Litigation
Although any adult may file a petition to determine another person’s incapacity, one must present factual evidence to support one’s claims. Then the Court will have an examining committee, typically two professionals (physicians, and/or psychologists) and one lay person, evaluate the person’s capacity and submit their reports to the Court.
If the examining committee does not find that the alleged incapacitated person is incapacitated, then the Court will dismiss the petition. However, if the examining committee does conclude that the person is incapable of making certain decisions, then a hearing will be set to determine the level of guardianship needed. For example, it is possible to have a Limited Guardianship in which the incapacitated person or Ward may exercise the right to vote, but the guardian would handle the Ward’s financial affairs and healthcare decisions. If the Ward is determined to be totally incapacitated, then the Court will require a full guardianship. A guardian is usually appointed at the end of the hearing. If the Ward does not have a family member, caretaker or friend who could serve as the guardian, then the Court will appoint a public or professional guardian from the county.
When appointing a guardian, the Court may approve any adult Florida resident or a close relative from another state. Sometimes a close relative from another state may also be appointed jointly with a professional guardian in Florida. In some cases a bank trust department may serve as the guardian of the property to handle the Ward’s financial affairs. All persons who petition to be appointed as the guardian must submit fingerprint cards and have a background check. Thus persons who have been convicted of a felony will not be appointed. If the Ward executed a document entitled “Declaration of Preneed Guardian” while he or she was competent, then the Court will take that Declaration into consideration. Furthermore, if at anytime the Ward’s condition improves, the Court will have the Ward reexamined to determine if a guardianship is still needed or if some rights may be restored.
The responsibilities of a guardian of the person include deciding where the Ward should live, and deciding what medical and personal care services are required, and then hiring them. An Annual Report and Plan must be filed with the Court outlining the Ward’s condition and progress. The guardian of the property is responsible for collecting the Ward’s assets and using them to provide the best possible care for the Ward. This guardian also has the power to handle investments for the Ward, but the Court may need to approve certain financial transactions. An Annual Accounting must also be submitted to the Court documenting how money was used for the Ward. Guardians hire attorneys who serve as the “attorney for record” and submit the annual reports on their behalf.
Guardianships for minors are necessary when parents die or become incapacitated, or when children receive money exceeding $15,000 from a lawsuit, inheritance, or an insurance policy. In the event that a guardianship is necessary because a child has received more than $15,000, the parents may petition the Court to be appointed as the guardians. Parents may also designate a guardian for their children in their wills.
There are further duties associated with the winding up of a guardianship. A guardianship generally ends upon the death of the ward, the minor attaining the age of majority, or if the ward moves out of the state or county in which the guardianship was established. Once there is no longer a need for the guardian, the guardian must report to the court and any interested persons with a final accounting of any actions taken by the guardian. Upon approval of this final accounting, the court will discharge the guardian. Until the court has discharged the guardian, the guardian will face continued duties and liabilities regarding the ward’s property.
With proper estate planning most guardianships can be avoided by executing trusts, a durable power of attorney, health care surrogate and living will and by choosing trustworthy fiduciaries.However, if a guardianship is unavoidable, it is important to have an attorney who has experience representing families filing for guardianships. We have many years of experience in this area of the law and will guide you through the process.
Please contact our office today if a family member or loved one is unable to make their own healthcare and financial decisions and requires a guardian to be appointed to make these decisions on their behalf. Our staff is here to help you if you need a guardianship lawyer in Miami, Aventura, North Miami Beach, Miami Springs, Miami Shores, Miami Beach or a guardianship attorney in Broward County, Hollywood, Hallandale Beach, Pembroke Pines, Fort Lauderdale, Ft. Lauderdale, Davie, Coconut Creek, Pompano Beach, Tamarac, Sunrise, Margate or any city in Broward County, and would like to set up an appointment to have your situation evaluated.