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.
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:
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.
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.
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:
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.
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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