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Guardianship

If a person becomes incapacitated, they are unable to manage their own financial affairs and/or personal affairs.  Many people are under the mistaken impression that their spouse or adult children can automatically take over for them at that time.  However, unless a less restrictive alternative such as a Durable Power of Attorney has been executed by you while you had capacity, no one is legally authorized to step into that role automatically.  Thus, in order for others to be able to manage your finances and/or personal affairs, they must first petition a court to declare you legally incompetent. 

 

When a person no longer possesses the requisite mental ability to manage his or her own affairs due to his or her medical or physical conditions, Florida Guardianship law ensures a citizen of the State of Florida will be treated with dignity and respect, their health care decisions be made and their property managed and accounted for by a guardian who is appointed by the Court.

 

 

 

Overview of the Guardianship process in Florida

 

1.                  Need to Retain an Attorney

2.                  Costs of Guardianship

3.                  Petition to Determine Incapacity and a Petition to Appoint a Guardian

4.                  Court Appointment of an Attorney for the Alleged Incapacitated Person

5.                  Court Appointment of Examining Committee

6.                  Hearing on Incapacity

7.                  Hearing to Appoint a Guardian (if determined incapacitated)

8.                  Duties of Guardian

9.                  Fees for Guardian

10.              Alternatives to Guardianship

 

 

1.         Need to Retain an Attorney

 

Florida law requires a person seeking to become the guardian for an incapacitated person be represented by an attorney. As you may surmise, there is a great deal of legal drafting associated with the process.  Typically, the attorney representing the guardian charges for their time on an hourly basis.  Attorney fees and costs charged to the guardian for representing the guardian in the guardianship process can typically be paid from the incapacitated person’s assets.  This is a considerable relief to many guardians who cannot afford or do not want to personally pay for the incapacitated person’s guardianship. 

 

2.         Costs of guardianship.

 

As of 2012 the filing fees payable to the County are approximately $631.00 ($231.00 for the Petition to Determine Incapacity and $400.00 for the Petition to Appoint a Guardian).  The combined examining committee fees are approximately $780.00.  The court-appointed attorney’s fees are unknown, but are typically between $1,000.00 and $2,500.00 depending on the circumstances of each case and the attorney assigned by the Court.

 

3.         A Petition to Determine Incapacity and a Petition to Appoint a Guardian.

 

With the information received from the client, the attorney working for the person petitioning to be guardian (known as the “Petitioner”) will draft the following forms:

 

A.     Petition to Determine Incapacity;

B.     Petition for Appointment of Plenary/Limited Guardian;

C.     Notice of Petitions to Determine Incapacity and for the Appointment of Guardian;

D.     Application for Appointment of Guardian;

E.      Oath of Guardianship.

 

Once these forms are completed and signed by the petitioner, the petitioning attorney will file them with the court along with corresponding orders.  Please note that once the filing of the Petition takes place, any existing Durable Power of Attorney is suspended and the process must go forward to the hearing.

 

4.         Court Appointment of an Attorney for the Alleged Incapacitated Person

 

The court then appoints an attorney to evaluate, inform, and advise the alleged incapacitated person.  The court-appointed attorney is present at the hearings and at all times represents the incapacitated person and ensures their legal rights are protected to the extent possible.

 

5.         Court Appointment of Examining Committee

 

The court appoints an examining committee that is composed of three health care professionals, including a psychiatrist, who will examine the alleged incapacitated person.  The examining committee members will contact the residence of the alleged incapacitated person to schedule an appointment.  After the capacity exam has taken place, each member will file a report as to his or her individual finding with regards to the person’s capacity.

 

If two out of the three examining members find no incapacity exists, all Petitions must be dismissed and the case dismissed.

 

 

6.         Hearing on Incapacity

 

A hearing will be scheduled with a circuit judge handling guardianship matters.  Notices of this hearing are sent by certified mail, return receipt requested, to all interested parties (i.e. members of the family, Veteran’s Administration, etc.).  If any interested party has an objection relating to the alleged incapacitated person’s mental capacity or who should be appointed as guardian, he/she may present that objection at the hearing.  The alleged incapacitated person has a right to be present at the hearing, however, the court-appointed attorney may waive his or her appearance if that person is not able to understand or communicate meaningfully.

 

The first part of the hearing is devoted to determining whether the alleged incapacitated person is truly incapacitated.  To determine incapacity, the judge considers the reports of the examining committee, the report of the court-appointed attorney, and any relevant evidence or testimony (excluding testimony or reports from the alleged incapacitated person’s treating physician).  When a person is adjudicated totally incapacitated, all the rights are taken from the ward except basic rights of privacy, dignity, etc.  On the other hand, a person may be determined as only having limited incapacity and only certain prescribed rights are taken away.  If there is total incapacity, the guardianship is a plenary guardianship.  If not all rights are removed, the guardianship is said to be limited.

 

7.         Hearing to Appoint a Guardian (if determined incapacitated)

 

 

The second part of the hearing is devoted to determining if the Petitioner should be the guardian.  The judge will consider evidence as to the Petitioner’s qualifications and determine if the Petitioner is capable of serving as a Guardian.  Persons who have committed a felony or certain crimes cannot serve as Guardians.  

 

If the judge finds the Petitioner fit to be a guardian, the judge will enter Letters of Guardianship.  The Letters of Guardianship evidence the Guardians authority to act on behalf of the incapacitated person. Guardianship can be of the property or the person or of both. 

 

When a person is appointed as guardian of the property, the judge will typically order a bond in the amount of the Ward’s liquid assets.  An alternative to acquiring a bond is to place the majority of the Ward’s assets in a restricted depository account whereby the funds cannot be withdrawn without an appropriate court order.

 

8.         Duties of Guardian

 

Within sixty (60) days of Letters of Guardianship being signed, the Petitioner/Guardian must complete and file an Initial Plan of the Person and Verified Inventory. 

 

The Initial Plan of the Person outlines the Guardian’s plan for the Ward with respect to the Ward’s residence, health care, physician’s, social activities, etc. 

 

The guardian is responsible for managing the Ward’s assets.  As such, the Guardian must file with the Court a Verified Inventory evidencing all of the Ward’s assets as of the date the Guardian was appointed.  A guardianship account is established and titled as follows: “Guardianship of (Ward’s name), (Guardian’s name), Guardian.”

 

Each year thereafter, an Annual Plan of the Person and Annual Accounting must be filed.  Please be advised that the clerks of the court review and audit the Annual Reports and will question all monies being deposited and disbursed from the guardianship accounts.  Therefore, it is extremely important that a detailed record and corresponding documentation be kept of all financial transactions.  The court will readily address any detection of misappropriation of the ward’s assets or failure to comply with court requirements and appropriate sanctions imposed.

 

A guardian is also required by statute to comply with guardian education requirements.  A plenary guardian of the person and property is required to complete an 8 hour training class.  Upon your appointment, we will provide you with information regarding the time and place of that class.  Additionally, background checks and fingerprint cards will be necessary.

 

 

9.         Fees for Guardian

 

Persons serving as guardians are typically entitled to a fee for their time in serving as a guardian.  However, the taking of a fee is not required.  Fees are typically based upon a reasonable hourly rate as determined by the court.

 

 

10.       Alternatives to Guardianship

 

Florida law provides that guardianships are typically the last resort and if a least restrictive alternative exists, there is no need for a guardianship.  Examples of least restrictive alternatives consist of health care proxies, health care surrogates, durable powers of attorney, and trusts. 

 


With an office in Orlando, Florida, the attorneys at the Law Firm of Sawyer & Sawyer, PA assist clients with Estate Planning, Wills, Trusts, Elder Law, Special Needs Trusts, Probate and Estate Administration throughout the Orlando metropolitan area including Windermere, FL, Winter Garden, FL, Ocoee, FL, Clermont, FL, Orange County, FL, Lake County, FL, Osceola County, FL, and Seminole County, FL.



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