Estate Law And The Florida Guardianship Process
When a person loses the ability or capacity to care for themselves and make their own decisions, various Florida rules and regulations stipulate a process and procedure for that person’s family (or a professional guardian) to be appointed as a legal guardian. A legal guardian is an individual with the legal authority to make decisions on behalf of the incapacitated individual (Florida law uses the term “ward/proposed ward” when referring to the incapacitated individual).
Guardianships are about providing for the well-being of an individual. This can include financial decisions, and the nexus between estate planning and the guardianship process is very real. Even in cases where a strategic estate plan has been set in place to manage assets, there are countless reasons why it might become appropriate or necessary for an individual to become a guardian over a family member. For example, in cases where a person’s ability to make sound financial decisions has been compromised, having a court-appointed guardian empowered to manage the estate funds can be invaluable.
Family members who find themselves in this situation may grow confused as they begin to look intno the different types of guardianships recognized in Florida, and their associated protocols. This article aims to provide some clarity and a high-level overview of the different types of guardianships in Florida, and the processes that you can expect to go with them.
If the individual (known as the “proposed ward”) has lost their capacity to make their own decisions due to advanced age, or injury after an accident, the case to appoint a guardian will be processed by the court. The guardianship court will assign an examining committee to the case and order that they conduct an evaluation and submit a report on their findings pertaining to the mental state of the proposed ward. The report will also indicate whether each individual on the examining committee, to include medical professionals, has reason to believe that the proposed ward should be assigned a guardian. The rights that might be transferred to an appointed guardian include the right to make personal and legal decisions on behalf of the ward, to include such items as:
- the right to make medical decisions,
- the right to manage finances,
- the right to determine residency
The process detailed above does take some time. The examining committee must be assigned, conduct their assessment, and submit a report for the court’s review before a guardian might be assigned. If you believe that the person poses an imminent threat to person or property and there is not time to wait for the process to run its course, you may opt to request that the court follow the “emergency guardianship “ proceedings. If approved, the court will allow the proposed guardian to secure a letter of guardianship prior to the examining committee evaluation and report is finalized.
If the proposed ward has had a developmental disability since childhood then the court may pursue a “guardian advocacy” proceeding in lieu of the examining committee evaluation process. Here, medical evidence of the disability may be used as a substitute for the examining committee evaluation report. This allows some families with this medical documentation to fast track through this portion of the process.
Florida also recognizes a legal process for gaining guardianship over minor children. This is primarily utilized by potential guardians when a child’s parents are not available to raise the child. This guardianship arrangement requires that when the minor child is set to receive an amount in excess of $15,000 dollars, a “guardian of the property” must be appointed in order to manage those funds. The guardianship court restricts access to the money in either a restricted depository or a court approved annuity. This allows the funds to only be used with the court’s permission.
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