What is Guardianship?

Guardianship refers to the legal process of obtaining the authority to make decisions for someone else. A guardian is appointed by the court and delegated the legal authority to act on behalf of someone’s person, property or both.

When might Guardianship be needed?

Normally, parents have legal guardianship over their minor children and adults have the right to make decisions for themselves. This may not always be possible and someone else has to step in to care for a child or for an adult. Families may consider establishing a guardianship if a loved one lacks the ability to handle his/her personal affairs. If someone is appointed a guardian, the guardian has the authority to make decisions on behalf of the person and handle his/her personal affairs and, in some cases, manage his/her property. To establish a guardianship, a person must be judicially determined to be incapacitated. A person may be determined as incapacitated if the person is unable to manage his/her property or is unable to provide himself /herself with health care, food, shelter and other forms of personal care.  A person may also be determined to be incapacitated as a result of a mental disability, mental illness or mental incapacity caused by an injury.

Types of Guardianship —

Guardianships can be limited or plenary, meaning that a guardianship can cover all or some matters for the incapacitated person. Under a plenary guardianship, a court declares a person as incapacitated and finds that the incapacitated person is unable to handle all manners regarding his/her person or property. This form of guardianship gives the guardian the power to exercise all of the incapacitated person’s rights, which may be delegated to a guardian.

Limited guardianships are less restrictive and more flexible. In a limited guardianship, the person under guardianship retains the power to perform certain rights, but the court assigns certain delegable rights to the guardian. This form of guardianship is more tailored to the specific needs of the person under guardianship. For example, someone who is mentally disabled may have the right to contract delegated to a guardian but may retain the right to choose where they will live.

How to file for Guardianship?

A court may appoint a guardian for someone who has been determined to be incapacitated and unable to exercise certain rights. If someone believes a person is incapable of exercising certain rights due to a mental disability or other form of incapacitation, he/she may file a Petition to Determine Incapacity. The petitioner will also file a petition for Appointment of Guardian of an Incapacitated Person, in which the petitioner must state the nature of the incapacity, the extent of guardianship requested and why the proposed guardian should be appointed to care for the alleged incapacitated person.

It is important to note that guardianship should be a last resort that is established only in situations where lesser restrictive means to care for the alleged incapacitated person are impossible. When a guardianship is established, the goal should be for the incapacitated person to have his/her rights restored back to them at the earliest time possible. Florida guardianship law aims to protect incapacitated persons and promotes them to exercise decision making whenever possible. Guardians have a duty to keep track of incapacitated persons progress and to make sure the incapacitated persons rights are protected so that they are given the opportunity to develop self-autonomy.

We understand the process of establishing a guardianship can be intrusive and complicated. If you are considering guardianship for a loved one or are currently a guardian in need of representation, contact us to set up an appointment to evaluate your options. Call us at 305-677-5119 or email us at  info@flpfl.com.

 

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