FAMILY ESTATE PLANNING

Protecting Your Assets And Your Legacy

GUARDIANSHIP

Sometimes we are faced with the difficult situation of having a family member or loved one become unable to make day-to-day decisions for themselves. When this happens, it may become necessary to have a guardian make decisions for that person.

What is guardianship?

Generally, guardianship is a legal relationship between the guardian and an incapacitated individual. The guardianship gives the appointed guardian the legal duty and right to acton behalf of an incapacitated person and make decisions that affect the incapacitated person’s money and daily life.

When is guardianship needed?

A guardian is required when an individual has been deemed incapacitated after suffering a catastrophic injury or illness, or is otherwise so disabled that that adult individual is unable to make responsible decisions concerning medical, legal, and financial needs and manage daily affairs. An adult individual can be claimed incapacitated if he/she has been determined by a Florida court to be someone who is unable to manage his/her property due to critical health issues and/or for safety reasons.

Who can be appointed guardian?

A person is qualified to serve as a guardian in Florida ifhe/she is over 18 years of age and a Florida resident, or if a non-resident, meets certain qualifications established by Florida law. Usually, the guardian is an adult family member who is responsible and will work in the best interest of the incapacitated person.

While a family member may be appointed the guardian of the person, a professional or a bank may also be appointed as a co-guardian of the incapacitated person’s “estate”. Banks may be appointed as a guardian of the estate when there are substantial assets to be managed. If there are no family or friends, or otherwise qualified persons, able or willing to seek appointment, the Court will typically appoint an attorney to serve as guardian. After appointment, the guardian must attend an educational course and submit to credit and criminal background checks.

How is incapacitation determined?

If you are filing a petition to assess an individual to be incapacitated, there is a committee appointed consisting of at least two physicians and another person whose field of expertise is focused on this area. The person claimed to be incapacitated may be subject to undergo a series of tests on the following areas: physical, mental and functional.

Once the examination is done, the committee submits their reports to the court handling the matter, and the court evaluates the results and assigns a legal guardian if the individual if found to be incapacitated. If the conclusion of the committee validated that the person is not incapacitated, then the judge may dismiss the petition.

What happens after a guardian is appointed?

Once a guardian is appointed, the incapacitated person becomes known as a “ward” and loses some or all of his/her following rights:

  • to seek or retain employment
  • to apply for governmental benefits on their own behalf
  • to vote
  • to marry
  • to drive and have a driver’s license
  • to travel

While the ward may lose some or all of the rights as listed above, he/she retains the right to privacy, access to courts, counsel, communicate with others, be treated humanely and with respect, and remain as independent as possible.

Upon the petitioning for guardianship, the Court may appoint an attorney to represent the incapacitated person’s best interest during the guardianship process. The attorney appointed to represent the incapacitated person can seek their fees from the incapacitated person’s estate.

The appointed guardian has the right to exercise the following on behalf of the ward:

  • Ability to consent to both the ward’s medical and mental health treatment
  • Make the decision on where the ward will reside, whether it be the city or the type of residence
  • Apply for government benefits for the ward
  • Decide social aspects of the ward’s life or decide his or her social environment
  • Manage ward’s property
  • Enter into a contract
  • To sue or defend against lawsuits

Do you need an attorney to seek guardianship over someone?

In Florida, an attorney is required to prepare and file the necessary pleadings and documents with the Court, and to represent the person(s) petitioning for guardianship.

How much does the guardianship process cost, and who pays for it?

Generally, the cost of guardianship can be anywhere between $3,500 and $10,000. However, the cost for the guardianship process varies depending on the specific circumstances of each case, including the need for determination of emergency status, statutory court costs, the examining committee fees, the court appointed attorney's fees, and your attorney's fees.

Under Florida law, a guardian or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf is entitled to a reasonable fee for services rendered. Thus, if a family member is successful in establishing a guardianship for a loved one, that family member may be reimbursed for money spent. However, this assumes that person who is deemed incapacitated has money to reimburse the family member establishing the guardianship. Further, if there are objections to a fee petition, then the courts will hold an evidentiary hearing to rule on any fee dispute.

How is guardianship different from conservatorship?

Conservatorship law applies to a family member who has gone missing, whether from war, mental illness or disappearance. The person must be declared an absentee, which is officially defined as anyone who has gone missing and the circumstances make it look like they died, or if they have gone missing due to amnesia, mental derangement, or other mental causes. Absentees also include armed forces member who were reported missing in action, were detained in a foreign country, or have become prisoners of war.

In Florida, you have to petition for conservatorship. To become a conservator, you must show proof that you hold an interest in the absentee’s estate if they passed away, and you must show you are dependent on support or maintenance from the absentee.

Guardians typically have more control than a conservator since the conservator is just looking after the estate, not medical and personal affairs. The courts typically use the least restrictive option and a guardianship doesn’t need to be a permanent appointment either. So, if the person is only temporarily incapacitated due to an injury, it can be revoked once the person is well.

On one hand, when you petition for guardianship, you have to show the court that the family member is truly incapacitated and cannot handle their financial or personal affairs. One the other hand, with conservatorships, you need to prepare a petition that lists all the immediate family and next of kin. The petition also needs to have specific details on what the circumstances were when the person went missing, and list reasons why you need to be appointed conservator. This must accompany a statement that summarizes the absentee’s estate, including an estimate of its worth

The court may appoint a guardian ad litem during the conservatorship hearing to protect the interests of the absentee and, in some circumstances, a guardian and a conservator both need appointed and can be the same person.

If you want to learn more about the guardianship process in Florida, please contact me today!