What is Guardianship and How Does it Work?

A guardian is someone appointed by the court to control a ward’s assets and make decisions on behalf of the ward. The ward must be declared as incapacitated by the court to be unable to handle his/her own affairs. People who suffer from mental disabilities, including people with dementia and other conditions of old age, may need a guardian if they can no longer act on their own behalf. 

If someone in your family or a friend whom you care about needs a guardian, there is a specific legal process that you need to follow if you wish to become their guardian. You can file for guardianship in Florida if you believe that someone you care about is not able to take care of him/herself any longer.

You may not need to file for guardianship if the incapacitated person has created a durable power of attorney and named an agent to act on his or her behalf. A durable power of attorney survives and is still effective after the principal becomes incapacitated. It is often a solution for all parties and an alternative to filing a petition to determine incapacity. The person who has become incapacitated will have had a say in determining who should act for him/her, and the person who takes over as the agent of the incapacitated person will not have to involve the court.

If no power of attorney exists and you need to step in to take care of someone who can no longer manage his/her own affairs, the first step to take is to file a petition with the court. The petition asks the court to determine that someone is incapacitated. After the petition has been filed, the court appoints a three member examining committee; each member conducts an evaluation of the person and prepares a report for the court.  An attorney is also appointed to represent the party who is potentially incapacitated.

The court will then hold a hearing to review the evidence and determine if the individual is incapacitated. If so, the court will first consider less restrictive alternatives to guardianship. If the court determines that a guardianship is necessary, a guardian will be appointed.

When you file for guardianship in Florida, the court will also assess whether you are the best person to serve as guardian.  The Elder Law Firm of Clements & Wallace, P.L. has represented many people in guardianship proceedings and we can provide you with the legal advice and guidance that you are looking for if you want to help protect someone that you love.

 

About Julianne D. Ware