Most people think of guardianships as the appointment of an adult acting on behalf of a minor child when that child’s parents are unable, unwilling, or incapable of handling parental responsibilities. However, Florida guardianship law generally applies to incapacitated persons, and the Florida Statutes on guardianships explain the requirements and procedures for establishing a guardianship over a person and the court’s role in same. Although there are several types of guardianships, a guardianship is most often established for either a minor who requires a guardian of the minor’s property (typically either as the result of a recovery in a lawsuit or an inheritance), or for an incapacitated person who lacks the capacity to manage some or all of his or her own affairs. Adjudicating a person totally incapacitated and in need of a guardian deprives the person of all his or her civil and legal rights. The courts and the Florida legislature are cognizant that such deprivation may be excessive or unnecessary, and consequently, strive to make the least restrictive form of guardianship available, or determine that less restrictive alternatives to a guardianship exist. A guardian may not be appointed if the court determines there is an alternative to guardianship that will sufficiently address the problems of the alleged incapacitated person.
When someone is incapable of managing all or some of their own affairs due to a lack of capacity, there is no one with the proper authority to make decisions on their behalf (unless that incapacitated person executed valid advance directives prior to their incapacity) for those affairs they are incapable of independently managing. When this situation arises, a guardianship must be initiated.
A guardianship administration is a court-supervised process of administering and managing all or some of an incapacitated person’s financial, medical, and social affairs. The first step is the filing a petition to determine incapacity with the court, which can be filed by any adult who is able to include a verified (i.e., under oath) statement that the petitioner believes the alleged incapacitated person to be incapacitated and the basis for the belief. The court will then appoint a three person examining committee, consisting of one psychiatrist or other physician and two other individuals, who are usually in the medical field or individuals who the court believes possess qualifications sufficient to provide the court with an expert opinion. Each committee member will examine the alleged incapacitated person and provide the court with a report. If two of the three members determine that the person is not incapacitated in any respect, the court will dismiss the petition and the guardianship matter will be dismissed. Otherwise, the court will hold an adjudicatory hearing in which it will determine whether the individual is incapacitated, and the extent of the incapacity.
If the court finds incapacity, and there are no sufficient alternatives to guardianship, the next step is for the court to appoint a guardian for the alleged incapacitated person. The court may appoint a friend or relative of the alleged incapacitated person as the guardian and/or may appoint a professional guardian. Typically if only one person who is qualified to be guardian is seeking appointment and there are no objections to that person serving as guardian, the court will appoint the petitioner as guardian. However, a person not qualified under the Florida Statutes—for example, a convicted felon—may not be appointed as the guardian. Also, it is important to understand that every guardian must be represented by an attorney admitted to practice in Florida.
One of the biggest challenges is that people do not understand how the guardianship process works. Whether you are seeking to become the guardian, or just want to be kept reasonably informed of the guardianship process, it is advisable to retain qualified legal counsel with a mastery of the guardianship administration process to assist you in understanding the process and your rights. It is also important to keep a close eye on friends or family members as they enter the later years of their lives, as people oftentimes fail to properly identify the warning signs of a loved one’s declining mental capacity such as:
- Beginning to mishandle finances with increasing frequency, failing to pay bills, losing money, forgetting the location of bank accounts, or hiding money;
- Declining short term memory and/or general forgetfulness;
- Beginning to gamble, making unusual purchases, entering an unusual number of contests through magazines or television, increasing number of purchases from television and magazine advertisements;
- Changing eating habits, resulting in unusual weight loss or loss of appetite;
- Declining personal hygiene and general cleanliness habits;
- Exhibiting paranoid behaviors;
- Stopping participation in activities that were previously important to and enjoyed by the person; or
- Making new friends who are younger and generally unlikely to befriend an elderly person.
The moment you perceive that your friend or family member can no longer manage his or her affairs, you should contact a qualified attorney immediately to explore your options. It is important to seek guidance before he or she is taken advantage of, or even worse, before he or she does harm to himself, herself, or others.
Minors in Florida are deemed incapacitated by virtue of their age of minority, and there is therefore no need for an adjudication of incapacity in a guardianship for a minor. Guardianships are often established for minors, even in circumstances where the minor has their natural parents as their natural guardians, when the minor is to receive at least $15,000.00, either as a settlement from a claim brought on behalf of a minor or as part of an inheritance. Except in cases where the natural parent is unqualified or has a conflict, the natural parent(s) can seek appointment as the guardian. The courts, particularly in Miami, can be very strict about the proper use of the funds received on behalf of the minor, so it is important to get a guardianship attorney involved as early as possible, even before the settlement of the claim.
Call Chepenik Trushin LLP, serving Miami and surrounding areas, today at (305) 981-8889 or toll free at (866) 626-9898 for a consultation, or contact us online.