You may notice a friend or a family member who is losing the ability to manage financial, medical or legal, affairs. That person may need a guardian appointed to help manage his or her affairs. This is done through a guardianship proceeding.
Guardianships are a court-supervised proceeding. In order for a court to appoint a guardian for another, the court must determine that the individual lacks the mental capacity to do some or all of the following certain things: make and exercise informed decisions regarding his or her right to marry, to vote, to apply for government benefits, to have a driver’s license or operate a motor vehicle, to travel, to seek or retain employment, to contract to sue or assist in the defense of suits of any nature, to manage property or make gifts or dispose of property, to consent to medical and mental health treatment, to make and exercise informed decisions affecting the social environment or other social aspects of his or her life.
A court will appoint an examining committee to examine the individual and each committee member will provide their report to the court. The reports are reviewed, a capacity hearing is held, and if the court is convinced that the individual is incapacitated, an Order Determining Incapacity will be signed by the judge and a guardian will be appointed for the individual through a signed Order.
In Florida, there are emergency temporary guardianships, limited guardianships, plenary guardianships, voluntary guardianships, guardianship for minors, guardian advocates and VA guardianships.
An “Emergency Temporary Guardianship” is a temporary guardianship that can be established to expedite the appointment of a temporary guardian until the proceeding for a permanent guardian can be completed. Typically, the court will hear a petition to appoint an emergency temporary guardian anywhere from two days to two weeks after the petitions have been filed with the court. In order for a temporary guardian to be appointed, the court must find that there appears to be imminent danger that the physical or mental health or safety of the alleged incapacitated person will be seriously impaired, or that his or her property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.
A “Limited guardianship” is a guardianship created when the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property, or after the person has voluntarily petitioned for appointment of a limited guardian. In a limited guardianship, the court appoints a person to exercise those delegable legal rights and powers of the ward that the ward lacks the capacity to perform to care for his or her person or property. That person is referred to as a “Limited Guardian”.
A “Plenary Guardianship” is a guardianship created when the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property. In a plenary guardianship, the court appoints a person to exercise all of the delegable legal rights and powers of the ward necessary to care for the ward’s person or property. That person is referred to as a “Plenary Guardian”.
A “Voluntary Guardianship” is a guardianship created when a mentally competent adult decides he or she is incapable of managing his or her own estate and voluntarily petitions for the appointment of a guardian of the property.
A “Guardianship for a Minor” is a guardianship created when the court has found that a minor child’s parents have died or become incapacitated, or if a minor child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding the amount allowed by Florida law. If a guardianship is established, the money will be held in the guardianship for the minor child until he or she reaches age 18. Use of the guardianship funds will require authorization from the court in the form of a court order. Typically, the court will authorize the distribution of funds for the care and upbringing of the minor child, including medical care. However, if the parents of the minor child have their own assets, the court may require that the parents continue to support the minor child, instead of using guardianship funds.
A “Guardian Advocate” is a person appointed by a written order of the court to represent a person with developmental disabilities. No adjudication of incapacity is required. A guardian advocate is appointed if the person with developmental disabilities lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person, property, or estate, or if the person has voluntarily petitioned for the appointment of a guardian advocate.
A “Veteran’s Guardianship” is similar to civilian. Veterans’ guardianships are designed to protect veterans who suffer from mental or physical incapacity due to service-related injuries and family members of veterans who are entitled to receive various types of benefits from the Department of Veterans Affairs. VA guardianships ensure that incapacitated veterans receive the care they need while preventing them from spending their money recklessly or unwisely. The Department of Veterans Affairs must determine whether the veteran is incapacitated. For this, the VA assigns its own medical officers to examine the veteran and conduct an interview to gather evidence of any physical or mental impairment. If the VA determines that the veteran is incapacitated, its officers will issue a certification of incapacity. The veteran may have a determination of partial or total incapacity. In either case, the court will appoint a guardian to oversee the veteran’s property, which includes the authority to control and protect real property purchased with VA benefit funds. A guardian must obtain a bond, file an inventory of all of the veteran’s property with the court; and once a year, file an annual accounting with the Department of Veterans Affairs and the court.
For more information or for assistance with establishing a guardianship contact the Law Offices of Barbara Buxton, P.A. today! Please call our office at 305-932-2293 in the Miami area or 954-760-7077 in the Broward County-Fort Lauderdale area to discuss how our law firm can serve you.
