Dementia: When Will a Guardianship Be Needed?

Guardianship refers to the legal arrangement whereby a person is granted with the ability to exercise the legal rights of another person. Guardians can be appointed to exercise the rights of either minors (i.e. those under the age of 18) or wards (those who are deemed to be incapacitated in one way or another). Typically, guardians exercise the legal rights of minors or wards by managing financial affairs and making other key decisions, such as those related to healthcare.

In this post, we will go over some of the essential aspects of guardianship here in the State of Florida, and then discuss dementia as a possible basis for guardianship.

Essential Points of Guardianship

As mentioned, guardians can be appointed both for minors and for those who are not functional enough to exercise their legal rights effectively. Appointment for minors sometimes happens because the minor has inherited a large amount of money either through a lawsuit award or insurance policy. Guardianship over adults (wards) is seen as a “last resort” for which there is no other viable alternative. And the reason for this is because people naturally have a right to exercise their own legal rights whenever possible. Courts will defer to other arrangements when they can, such as durable power of attorney, trusts, healthcare surrogates, or other similar plan.

What many people don’t know is that guardianship can be appointed on either a voluntary or involuntary basis. Voluntary guardianship occurs when someone who is mentally competent makes a request to the court so that another person can manage his or her estate. This can happen when the person seeking the guardianship believes that the guardian would be able to manage the estate much more effectively. Involuntary guardianship is the more common arrangement, and involves a request or petition made by someone other than the ward.

Dementia as Grounds for Involuntary Guardianship in Florida

The appointment process for guardianship in the State of Florida involves several steps. The first step is to simply file a petition with the local court. This petition will provide the basic information pertaining to the case, such as personal data, case history, reasons for the appointment, and so forth. The court will appoint an attorney to represent the minor or prospective ward. Then, if the appointment involves a ward, the court will appoint an examination committee which consists of 3 medical professionals. These professionals may have different areas of specialization (psychiatry, psychology, etc.), but they will all be capable of performing a general examination of the prospective ward.

Each member of the 3 person committee will examine the subject and make a report for the court. This is where dementia comes into play: if the committee thinks that the subject is unable to function well enough independently, then the committee will recommend the appointment. Everything is taken on a case-by-case basis; in cases of “mild” dementia, therefore, there may be a possibility that the committee will not make a recommendation for the appointment. Simply having a condition in one form or another doesn’t guarantee that an appointment will be granted by the court. The team of medical professionals need to be convinced that the subject’s condition is such that a guardian is necessary to protect the subject’s best interests.

Contact the Denise Jomarron Legal Group to Learn More

If you’d like to learn more about the guardianship appointment process, please contact the Denise Jomarron Legal Group by calling (305) 402-4494.

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