When an adult is physically or mentally unable to make their own decisions or take care of their affairs, a Florida court may assign this responsibility to another adult acting in the capacity of a legal guardian. Guardianship is usually the last resort to provide a safety net for a disabled adult when no alternative – such as durable power of attorney or medical directive – can answer the incapacitated person’s needs.
How does guardianship work in Florida, and when should you look for a “guardianship attorney near me?” Denise Jomarron, Miami, Florida-based attorney, explains.
Different Types of Guardianships in Florida
When a court appoints a guardian to care for an incapacitated person (the ward), the goal is always to make the guardianship arrangement minimally intrusive and to preserve the ward’s civil rights as much as possible.
Guardianship types vary depending on the circumstances and the ward’s needs. A guardian may assume responsibility for the ward’s person, property, or both.
Different guardianship types in Florida include:
- Voluntary Guardianship. An individual who is capable of self-care but wants help in managing their affairs may request voluntary guardianship, which is subject to termination at any time.
- Emergency Temporary Guardianship. A court may appoint a limited-time emergency guardian if an incapacitated individual requires immediate action to prevent imminent danger or property loss.
- Limited Guardianship. A partially incapacitated individual may require limited guardianship wherein the Court delegates some but not all of the ward’s legal rights to a guardian.
- Guardian Advocate Arrangement. Individuals with developmental disabilities or mental health issues may need a guardian advocate to give informed consent for health-related matters or manage affairs on their behalf.
- Full Guardianship. Under full (plenary) guardianship, the guardian makes decisions regarding nearly all aspects of the ward’s life, some of which require court approval.
How Florida Courts Establish Guardianship
The guardianship process in Florida typically involves the following steps:
Petition for Incapacity. The petitioner (who can be any competent adult) must file a petition to determine incapacity over an alleged incapacitated person. Once the court receives the petition, the court will appoint an examining committee to evaluate the petition’s statements by conducting a video evaluation or in-person evaluation of the alleged incapacitated person. The court will also appoint a lawyer to represent the allegedly incapacitated person.
Hearing. Once the examining committee gathers all relevant evidence, a court will schedule a hearing to assess the committee’s reports. The purpose of the hearing is to determine whether the incapacitated individual is indeed incapacitated and whether any suitable alternatives to guardianship exist in the case.
Appointing a Guardian. If necessary, the court will assign a guardian to the incapacitated person. Depending on the circumstances, the court may establish a plenary or limited guardianship over the ward.
Once the petitioner files the Petition for Incapacity, the court will appoint an examining committee and an attorney for the alleged incapacitated person. The examining committee will consist of three members, one of which should be a psychiatrist or a licensed physician.
Generally, the examining committee will file their reports prior to the incapacity hearing. The reports should include an accurate diagnosis, a prognosis, and recommendations for a course of treatment. The reports also include recommendations as to which legal rights, if any, should be removed from the alleged incapacitated person.
How Estate, Trust, and Will Planning Can Help Avoid Guardianship
Whenever possible, individuals, families, and courts strive to avoid guardianship. Why? Because it’s a legal process that inevitably strips away some civil rights and may collide with the ward’s wishes. The person a court appoints as a legal guardian may not be the person the ward would have chosen for themselves.
Timely estate planning can include appropriate arrangements that preserve a person’s interests, follow their wishes, and help avoid guardianship. Alternatives to guardianship may include a durable power of attorney, health care surrogate designation, revocable trust, and more.
An estate planning attorney can help you choose the right strategy to avoid legal emergencies that call for guardianship.
Why You Need an Estate Planning Attorney for Guardianship Administration
If you serve or are preparing to serve as the guardian of a disabled family member, an experienced estate planning attorney can guide you through the legal process of guardianship. An estate planning lawyer can:
- Provide information about the process and duties of guardianship
- Assess the needs of the prospective ward
- Help with filing the necessary court paperwork
- Assist with preparing and filing annual reports
In Miami, Florida, the dedicated and empathetic legal team of Denise Jomarron Legal Group leverages the appropriate legal tools to answer your needs. We will work with you to achieve the right type of arrangement for yourself, your loved ones, and your entire family.
Denise Jomarron Legal Group: Guardianship Attorney Near Me in Miami, Florida
If you’re searching for a “guardianship attorney near me” in the Greater Miami area, you probably need a competent law firm to help you protect a disabled loved one.
At Denise Jomarron Legal Group, we help family members and caregivers of disabled children and incapacitated adults and seniors by guiding them through the guardianship process. Call us to schedule your free, 20-minute strategy session at (305) 402-4494.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
Denise Jomarron Legal Group
4300 Biscayne Blvd., Suite 305
Miami, FL 33137-3255