Guardianships

In our practice, we always inform our clients of the importance of instituting appropriate durable power of attorney, healthcare surrogate and living will documents at any age. However, in the event that we are presented with a client whose loved one has either temporarily or permanently lost the capacity to make medical and financial decisions on their own behalf, we are able to institute guardianship proceedings in the Florida County that the in incapacitated person is located in.

In a Guardianship proceeding, a Petition to Determine Incapacity is filed with the Court advising the Court of the alleged incapacitated person’s (AIP’s) lack of capacity and activities of daily living (ADL’s) that the AIP is unable to perform. Within days of the Petition to Determine Incapacity being filed, the Court appoints a panel of three (3) medical professionals to evaluate the capacity of the AIP. This group of medical professionals is called the Examining Committee. Within days of this appointment the examining committee will render written reports as to the results of their examination of the AIP, as well as to their recommendations for whether or not the AIP needs a Plenary or Limited Guardianship. Additionally, upon filing the Petition to Determine Incapacity, the Court sets a hearing on the Petition within days.

Simultaneously with the filing of the Petition to Determine Incapacity, a Petition for Appointment as Guardian is filed on behalf of the client requesting that the Court appoint the client as guardian for the AIP in Florida. There are certain qualifications that are needed for someone to become a guardian which have to be followed appropriately.

All prospective Guardians must submit to a complete background check, fingerprinting and must take an eight (8) hour Guardianship course within one (1) year of their appointment. Once appointed Guardian, the Guardian will have to marshall all of the assets of the ward, deposit them in a depository account and will not be able to use those funds without a court order. The Guardian will also be required to file annual accountings with regard to the ward’s assets with the court.

We always advise clients that a Guardianship is a last resort which should come after all less restrictive alternatives have been exhausted before seeking court relief. However, we are able to assist clients with loved ones in need of guardianship with all aspects of the process both before and after appointment in order to secure the best possible protection and preservation of the infirmed person’s health and assets.