Sadly, situations sometimes arise in life that require an adult to have a surrogate decision-maker. These surrogates are called guardians and the adult they represent is called the ward. Guardians could be family members, trusted friends, or an agency that a court appoints to oversee the ward’s well-being.
If you have questions about this process, a Florida adult guardianship lawyer in Coral Gables can provide advice and support. Guardianship issues can be complicated, but having a trusted guardian in place can protect vulnerable individuals and offers their friends and family peace of mind.
Guardianship Must Be Least Restrictive Measure
Adult guardianship has a major effect on the person’s autonomy and restricts their right to make important decisions for themselves. Courts are reluctant to impose guardianship on someone if another, less restrictive measure would accomplish the goal.
For example, if an individual fears losing the capacity to make healthcare decisions, that individual could give that authority to someone focused exclusively on healthcare. Similarly, if there are concerns that the individual cannot handle their finances, a power of attorney or trust could protect their assets and provide for their support before incapacity.
If a guardian is necessary, a court might investigate whether a limited guardianship would provide enough protection to the ward. A limited guardianship gives specific powers to a guardian but allows the ward to keep decision-making authority in other matters.
Guardianship Could Be Voluntary or Involuntary
Sometimes, a person realizes that age is impairing their judgment or diminishing their cognitive abilities. In other cases, a person might receive a diagnosis that they know will render them unable to make their own decisions. They might seek an adult guardianship or agree to a voluntary guardianship in such cases.
Some people might not recognize that they lack the capacity to care for themselves. An individual might become significantly impaired after a sudden event like a stroke or car accident. Other people have developmental disabilities or mental illness that requires them to have a guardian. In most of these cases, the guardianship is involuntary, meaning that the ward cannot or does not consent.
Whether the guardianship is voluntary or involuntary, Florida Statutes §744.3201 requires an interested party to petition a court to declare the proposed ward incapacitated. A Florida attorney headquartered in Coral Gables will help someone prepare the petition for an adult guardianship.
When a court receives a petition to establish incapacity, the judge appoints a panel to examine the proposed incapacitated person and determine whether they require a guardian. The court also will appoint an attorney for the proposed ward to protect their rights. The incapacitated person can also hire private counsel if they do not want a court-appointed attorney.
The panel must consist of a psychiatrist or other physician, and the two remaining members could be physicians, social workers, gerontologists, or other professionals with skills and training relevant to the evaluation being conducted. The committee members must interview the proposed ward and consult with their physician, if possible. According to Florida Statute §744.331, each assessment committee member must conduct a physical examination, a mental health examination, and a functional assessment of the proposed ward.
After reviewing the assessment reports and hearing any evidence challenging them, the court will decide whether to declare the proposed ward legally incapacitated. If they do, the court will establish a limited guardianship, which allows a guardian to make specified decisions, or a plenary guardianship, which allows a guardian to make all decisions on the ward’s behalf.
Trust a Florida Attorney in Coral Gables to Establish an Adult Guardianship
If you have a family member who is not capable of handling their affairs, guardianship could provide a way to protect their interests and ensure they are well cared for. If you would like to prepare for your own declining health and mental acuity, considering a guardianship arrangement with a family member or trusted friend might provide you some security and peace of mind.
Whatever the circumstances, a Coral Gables attorney could provide helpful advice about adult guardianship in Florida. Reach out to us today to schedule a free consultation.