Guardianship in Florida by Amanda Dorio, Esq.
According to the CDC, the average life expectancy of a person born in the United States is 76.4 years. However, individuals living in Collier County, Florida, have the advantage of greater longevity, with an average life expectancy of 86.1 years, according to stacker.com.
With extended life comes the probability of facing mental or physical disabilities and thus becoming exposed to fraudulent practices or unjust influence. As a result, more individuals understand the necessity to make plans for a possible physical or mental incapacity, which is done through the use of trusts, Durable Powers of Attorney, and Health Care Surrogate Designations. However, in case someone does not have such documents, guardianship becomes beneficial for safeguarding the vulnerable.
What is guardianship?
Guardianship is a legal procedure where a guardian is appointed to take action on behalf of an individual who can no longer make prudent decisions regarding themselves and/or their belongings. Considering guardianship can deprive an individual of their civil and legal rights, the Florida legislation has developed laws to ensure “the least restrictive form of guardianship to help persons who are incapable of looking after their own needs”.
As for the various kinds of guardianships, there are four:
1- A guardian of the person is accountable for the maintenance and care of an incapacitated individual and for making medical, residential, and social decisions.
2- A guardian of the property oversees the assets and income and makes economic decisions.
3- A limited guardian is selected when the court concludes that a person is unable to carry out some, but not all, tasks related to the protection of their person or assets.
4- A plenary guardian is appointed by the court to exercise all permissible legal rights and powers to look after the individual and property.
Furthermore, individuals may initiate a voluntary guardianship when they are mentally able but feel that due to their age or physical condition, they are not able to handle their own possessions.
How does guardianship get established?
A request for identifying a person’s disability is submitted to the circuit court for guardianship and normally, at the same time filing a request for appointing a guardian. The court then appoints a lawyer to stand for the suspected incapacitated individual and arranges for an examining committee of three members, including at least one psychiatrist or physician, to assess the supposed incapacitated person. Following the analysis, the committee creates a report and files with the court, after which a hearing is held to assess the data. If the court finds that the individual is incapacitated with solid and persuasive evidence, a written order is provided and the guardian is chosen.
Establishing a trust, durable power of attorney, and health care surrogate designation may help to avoid guardianship or limit the extent of guardianship. Additionally, having a “Declaration of Preneed Guardian,” which designates a guardian before guardianship is needed, may help to establish a rebuttable presump – tion that the designated preneed guardian is entitled to serve as guardian.
Guardianship law is evolving continually and is particularly intricate, and it is highly advisable to consult with a legal professional if further questions arise.
Amanda Dorio is a wills, trusts and estate planning attorney with Henderson, Franklin, Starnes & Holt, P.A., based in Naples, Florida. She may be reached at email@example.com or by phone at 239-344-1362.
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