In Florida, the term “guardianship” refers to a legal process where a person is evaluated to determine if they are incapacitated and in need of a legal guardian. To make this determination the Court appoints an examining committee consisting of three members. Of the three members, one member must be a psychiatrist or other physician. There are voluntary and involuntary guardianships.
When the Court determines that a person is not capable of exercising certain rights, the Court must determine whether there is an alternative to guardianship that will address the needs of the person.
THERE ARE 4 BASIC TYPES OF GUARDIANSHIPS:
1. ADULT GUARDIANSHIP
With adult guardianship in Florida, the court must determine whether a person has the ability to make decisions for their person, such as healthcare decisions, or to make decisions about their property. The person that is the subject of the guardianship is called “an alleged incapacitated person” or AIP. A guardianship can involve the care of someone’s person or property or both.
An adult alleging that a person is incapacitated and needs a guardian to make some, or all decisions related to the person and/or property may file a guardianship proceeding. Florida law requires that the person desiring to be appointed as the guardian must be represented by an attorney.
Persons who are subjected to a guardianship risk losing some or all of the following rights:
- to personally apply for government benefits
- to contract
- to sue and defend lawsuits
- to manage property or to make any gift or disposition of property
- to determine their residency
- to consent to medical and mental health treatment
- to make decisions about his social environment or other social aspects of his life
- to marry
- to vote
- to travel
- to have a driver’s license
- to seek or retain employment
If only some of the rights are removed, then the guardianship is limited. If all of the rights are removed, the guardianship is plenary or full. Certain rights that are removed will be delegated to the guardian, however, some rights that are removed, such as the right to vote, cannot be delegated to a guardian. Because of the serious nature of guardianships, the Court will appoint an attorney to represent the interests of the Alleged Incapacity Person (AIP).
By law, after the guardianship petition is filed the court appoints a three-member examining committee. After the examining committee members file their reports, an adjudicatory hearing is held. At the hearing, the Court will determine whether the person needs plenary guardianship or limited guardianship. The standard is clear and convincing evidence.
The AIP must be present at the hearing, unless the AIP or the AIP’s attorney waives attendance or unless good cause is shown for the AIP not to be present. The AIP can present evidence showing that they have capacity and do not need a guardian.
The Court must inquire into whether the AIP has executed a Trust, any valid advance directive under chapter 765, or a durable power of attorney under chapter 709 and whether those documents can serve as a least restrictive alternative to the appointment of a guardian. Sometimes these documents working together can avoid guardianship of the person, the property, or both.
The Court may only remove those rights that the Court finds the person lacks the ability to exercise and delegate only those delegable rights to the guardian.
REQUIREMENTS AFTER A GUARDIAN HAS BEEN APPOINTED (FULL OR PARTIAL GUARDIANSHIP)
Once the court appoints a guardian, the guardian remains in place until the Ward dies, or regains his capacity.
- Within 4 months of appointment, the guardian must complete a court-approved guardianship education course. The course can be taken in person or online. A Certificate of Education must be filed with the Court once the course is completed successfully.
- An Initial Plan and Initial Inventory must be filed within 60 days after Letters of Guardianship are signed.
- Every year an Annual Plan and Annual Accounting must be filed on the anniversary date. The Annual Accounting can be waived if approved by the Court.
2. MINOR GUARDIANSHIP
A guardianship may be instituted for a minor child without adjudication of incapacity. The incapacity is based on the fact that the child is a minor. A minor guardianship typically occurs where:
- the parents of a minor child dies or becomes incapacitated,
- the minor child inherits property or
- the minor child receives an inheritance that exceeds $15,000.00 or receives proceeds from a lawsuit or insurance policy.
The funds collected are placed into a restricted guardianship account to be managed by the guardian with oversight from the court. The guardianship ends when the minor attains the age of 18.
The reporting requirements are similar to the requirements for an adult guardianship.
3. GUARDIAN ADVOCACY
The Court may appoint a guardian advocate for a person with a developmental disability if the person lacks the decision-making ability to do some, but not all, of the decision-making tasks necessary to care for his or her person or property. Developmental disability such as cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome must manifest before age 18.
Here are 3 major differences between the procedure to appoint a guardian advocate and a guardian:
- A Guardian Advocate only needs to be represented by an Attorney if there is a property in addition to Social Security payments
- An examining committee is not required as there is no determination of incapacity
- An adjudicatory hearing is not required; no determination of incapacity is made. The Court will receive and consider all reports relevant to the person’s disability
4. VOLUNTARY GUARDIANSHIP
Voluntary guardianship can be a great alternative to involuntary guardianship. With Voluntary guardianship a person who has not been determined to be incapacitated files a petition asking the court to appoint someone to manage his financial affairs. The person filing the petition will have to obtain a letter from their physician confirming that they have the ability to make decisions for their person and or property. Like involuntary guardianship, the person who is appointed is called a guardian and the guardian will have reporting requirements. It should be noted that Voluntary guardianship does not authorize the guardian to make medical or residential decisions. Voluntary guardianships remain in effect until the petitioner revokes guardianship becomes incapacitated, or dies. This type of guardianship offers protection of property and oversight, especially for persons who do not have any family members or who have family members, but not trusted ones.
5. VETERAN GUARDIANSHIP
Guardianships for veterans are similar to guardianships established by the probate court for non-veterans. Veteran guardianships were created to protect the property of veterans who have been determined to be incapacitated. The ultimate goal is to assure that the government benefits received by the veterans are not wasted or squandered.
The Department of Veterans Affairs must determine that a person is incapacitated before the court can appoint a guardian. One of the biggest differences between a non-veteran and a veteran guardianship is that the guardian must file an annual accounting with the Department of Veterans Affairs as well as with the probate court.
POSSIBLE ALTERNATIVES TO GUARDIANSHIP
Earlier we discussed the fact that at every incapacity hearing the Court must inquire into whether there is a less restrictive alternative to guardianship. Guardianship, if at all possible, should be avoided because it is costly, and intrusive, and privacy is lost. A guardianship may be avoided when one has the following documents in place:
- Durable Power of Attorney
- Health Care Surrogate
- Living Will
- Living Trust
- Joint Bank Accounts
A guardianship will be inevitable if family members are in conflict about how the agent under the DPOA or the Trust is managing the assets.
Restoration of Rights
Any interested person including the Ward may file a Suggestion of Capacity to determine if any rights should be restored. After the Suggestion of Capacity is filed, the Court appoints a physician to examine the Ward to determine if any of the removed rights should be restored.
FINAL THOUGHTS
Guardianships are intrusive, costly, public, and last until the person regains their capacity or dies. With proper planning, guardianship can be avoided. It is imperative not to wait until you have signs of Alzheimer’s or dementia disease before consulting with an attorney about an estate plan that can avoid. guardianship.
