Guardianship Of An Incapacitated Adult
Florida Adult Guardianships Explained
There are two petitions needed to begin a typical Guardianship proceeding — a Petition to Determine Incapacity and a Petition for the Appointment of a Guardian. After the Petition to Determine Incapacity is filed, the judge will appoint a three-person panel, “a committee,” to examine the alleged incapacitated person.
Each committee member will meet with the proposed incapacitated person and conduct an examination to determine the extent, if any, that the person is incapacitated. If a majority of the committee members determine that the person is not incapacitated, the petitions that were filed to initiate the proceedings are dismissed by the court; however, if a majority determines that the person is incapacitated, the proceedings continue.
At the same time, the court will appoint an attorney to represent the alleged incapacitated person. Prior to the appointment of a Guardian, the alleged incapacitated person has the right to hire a different attorney to represent them in the proceedings, if they desire.
After The Examinations
After all three examinations are completed and filed with the court, a hearing will take place for the judge to determine the level of incapacity and whether a Guardianship is necessary, or if there are less restrictive means of assistance available. These hearings usually occur together.
If the incapacitated person had proper estate planning prior to the Guardianship proceedings, it might be possible to avoid the appointment of a Guardian, even if incapacity has been found. These documents include a revocable living trust, a durable power of attorney and a designation of health care surrogate.
The Role Of The Guardian
The Guardianship court will appoint a person to serve as Guardian, which can be a family member or professional Guardian.
The Guardian, whether a family member or a professional, is required to retain the services of a Guardianship lawyer throughout all stages of the proceedings, to ensure that the responsibilities of a Guardian are satisfied.
The Guardian is required to file an initial inventory and annual accounting of the ward’s finances and an initial and annual plan regarding the plan of care for the ward.
These documents must be filed with the court and are reviewed by the court’s Guardianship auditor to ensure the Guardian is acting in the best interest of the ward.
The Guardian must always act in the ward’s best interests and account to the court for their actions and for any money or property payable to the ward. Guardians are entitled to reasonable compensation for their services but must be prepared to provide documentation of expenses and must get approval from the court before their compensation is received.
A Guardianship lawyer can assist with preparing the documents to request appointment of a Guardianship and answer questions about the responsibilities a Guardian assumes.
Guardians are authorized to engage in the day-to-day care and maintenance of the ward. If the Guardian needs to do something beyond the typical day-to-day duties, permission from the court is usually required, such as permission to sell the real estate of the ward or to enter into a contract on the ward’s behalf.
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