Guardianship in Florida
Sometimes in life, a person is unable to take care and make decisions for themselves either because of age, mental decline or illness. When this happens, it may become necessary for the court to appoint a guardian who will be responsible for making decisions for that person. The process of determining guardianship can become complicated due to the many different factors that can be acting upon a specific case. In order to ensure that the process of appointing guardianship occurs with the least amount of complications, it is important to have an attorney by your side. At the Law Office of Silverman, Mack & Associates, we can provide you with a dependable family law attorney Gainesville, FL, residents can trust.
What is Florida Guardianship?
Under Florida law, guardianship refers to the management of the personal and legal needs of a person when that person is unable to manage them themselves. A guardian is a person appointed by the court as a decision maker of personal, legal and financial decisions of either a minor or an adult. The person whom the guardian is appointed to is referred to as the “ward.” A guardian is obligated by ethical and statutory rules to make every decision for the ward with the ward’s best interest in mind. Florida allows two kinds of guardianship, voluntary and involuntary. A voluntary guardianship may be established for an adult who is unable to take care of him/herself and voluntarily petitions for a guardian appointment. An involuntary guardianship is when a person needs the appointment but has no say in the matter, such as a minor. Guardianship can be limited or plenary adult guardianship. A limited guardianship is appointed when the court established that the ward only lacks the capacity to do some of the necessary tasks to care for him/herself or property. A plenary guardian is appointed with all delegable legal rights and powers when a ward is deemed unable to care for him/herself.
Types of Guardianship
There are three types of guardianship that a person can apply for. Each type of guardianship caters to the particular situation and needs of the ward.
An adult guardianship occurs when a person is no longer able to take care of him/herself due to the significant mental and physical impacts of aging, this includes illnesses. If the person was able to prepare in advance for such scenario, directives or a living trust might’ve been set up. If not, then the court must appoint guardianship.
Minor guardianships occur when a minor’s parents die or become incapacitated, unable to care for their child. In this instance, a guardian is appointed to assume care of the child and manage the estate and property.
Incapacitated Adult Guardianship
Incapacitated adult guardianship happens when a child with developmental disabilities turns 18 years old and is still unable to make his/her own legal and financial decisions. Once the child turns 18, the parents will have to prove in court that the ward is still unable to care for him/herself.
Who Can Be a Guardian?
A person seeking guardianship in Florida must file a Petition to Determine Incapacity, a Petition for Appointment of Guardian and an Application for Appointment as Guardian for the court to review. The person must also qualify as being:
- Over the age of 18
- A Florida resident
If the person is not a resident, he/she must be:
- Related by direct descent to the ward
- A legally adopted child or parent of the ward
- Someone related by lineal consanguinity to the ward
- The spouse of a person qualified above
Florida Guardianship | FAQs
Is there a difference between a Guardianship and a Guardian Advocacy?
Yes. Due to injury or death, individuals may become mentally incapacitated. This impairment prevents individuals from making decisions on their own, whether it involves personal matters, health matters, financial matters, or professional matters. This type of individual is classified as a ward. A Guardianship is a legal right that allows a capable individual to care for a ward. A guardian’s duties may range from handling a ward’s financial documents or making decisions on a ward’s personal life.
On the other hand, a Guardian Advocacy is used for the purposes of developmentally disabled individuals, including children. Wards with serious disabilities or disfigurements may require the assistance of a guardian to govern their everyday decisions and ensure that their needs are met. Unlike a Guardianship, the process of obtaining a Guardian Advocacy does not require the need to prove that an individual is mentally incapacitated. Instead, the presence of an illness is enough to warrant the necessity of a guardian.
In order for guardianship to be granted, it must be proven that a ward is indeed unable to handle such duties on his/her own. If you are interested in obtaining guardianship over a ward, or if you desire to name a guardian to handle your person and property in the future, you should meet with guardianship attorneys in Gainesville, FL for assistance.
What is the purpose of a Pre-Need Guardian?
At our family law Gainesville, FL firm, we advise our clients that it is much more beneficial to plan and prepare for unfortunate events before they occur. The establishment of a Pre-Need Guardian serves the purpose of securing your person and property after an unpredictable event strikes. Imagine if you must receive a sudden surgical procedure of if you suffer an injury that requires you to remain on bed rest for an extended period of time. These types of conditions will prevent you from properly exercising your cognitive abilities and making sound, prudent decisions. By naming a Pre-Need Guardian today, you will have a trustworthy individual to handle your person and property.
If my father becomes incapacitated and does not have a Power of Attorney or Health Care Surrogate, what should we expect to occur?
If your father does not have a Power of Attorney or Health Care Surrogate, the court will simply assign an individual on his behalf. Upon being granted guardianship rights and responsibilities, this individual will make governing decisions on your father’s property and health care treatment plan. You should trust that courts take guardianship very seriously and they will do everything within their power to appoint a guardian that has a great deal of integrity and skill.
How do the roles and responsibilities of a Plenary and Limited Guardian differ?
There are several types of guardians. They differ according to the scope of work that they perform and the level of rights that they have on behalf of a ward’s person or property. A Plenary Guardian has the highest extent of rights over a ward. This individual has permission to make all decisions pertaining to a ward’s needs.
Meanwhile, a Limited Guardian is someone who has limited roles, powers and responsibilities over a ward’s person and property. Usually, a Limited Guardian is given a specific set of duties to perform that involves a designated area or field.
What steps should I take to name a Guardian for my minor child in the event of my passing?
We recommend that you reflect on what your children’s needs may be and the type of person that you believe is suitable to handle your children’s needs. Once you have done this, you should speak to guardianship lawyers in Gainesville, FL. You will need to begin drafting documents, such as wills and trusts, to name a Guardian and specify responsibilities in the event of your passing.
Is it possible to continue to make governing decisions on the behalf of my developmentally disabled child when he/she encounters adulthood?
Yes, but you will have to pursue a Guardianship Advocacy over him/her. Consult with guardianship advocacy lawyers in Gainesville for assistance with this.
Why is it necessary to become a guardian over my minor children to collect their proceeds of inheritance?
If your minor children are named as heirs to another person’s estate, there are legal proceedings involved. These documents will name your children and the rights that they have to the property. Because of the nature of these legally binding documents, it is important that they are strictly followed. Once you become a guardian over your children, you will have the legal right to handle their financial affairs, including collecting proceeds of their inheritance.
For more information on Florida guardianship, reach out to Gainesville law firm today.
Gainesville Family Law Attorney for Guardianship
Filing for guardianship can be a complicated process if you are not familiar with it. Having an attorney by your side can make the process less stressful, offer you advice every step of the way, and ensure that all paperwork is properly filed and requirements are met. At the Law Office of Silverman, Mack & Associates, we understand the importance of leaving a loved one in good hands. Contact us today for an attorney in family law Gainesville, FL, residents can rely on for help establishing guardianship.