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Spiro J. Verras Blog

Monday, June 27, 2016

Guardianships and the Law

What is guardianship and when is it deemed necessary?

For many people, estate planning includes making provisions for family members who require assistance throughout adulthood. Such individuals may suffer from severe congenital defects, deteriorative or incapacitating illness, psychiatric disorder or disability as the result of an accident. Any condition that prevents such individuals from caring for themselves may require the establishment of a guardianship with the disabled person as the designated "ward." If you have a person in your family who requires this type of protection, it is essential that you set up the guardianship with the assistance of a well-respected attorney with expertise in the field.

How is incapacity defined and who makes the call?

In Florida, an adult is considered to be incapacitated when he or she is unable to manage his or her property and is unable to meet certain necessary requirements for his or her own health and safety. The determination of incapacity is not made lightly since it takes certain freedoms away from the individual in question, such as the ability to: make informed consent decisions for medical or end-of-life treatment, own or possess a weapon, marry, vote and drive.

The determination of whether or not a person is disabled is must be made legally, in a manner that safeguards the individual's rights. Not only is the individual allowed to attend all legal proceedings regarding his or her guardianship, but the individual is entitled to be represented by an attorney who can present evidence and cross-examine witnesses.

At a hearing to determine incapacity, the court appoints a three-member committee that is typically comprised of two physicians and another trained professional considered by the court to be capable of forming an expert opinion. The individual being evaluated undergoes a physical examination, a mental health exam, and an assessment of his or her ability to perform everyday functions, and may be deemed after examination to be fully, or only partially, incapacitated.

What are the qualifications for being a guardian?

Usually, any adult residing in the state of Florida can become the guardian of a Floridian ward. In some cases, a relative residing out of the state may be designated as guardian. No one who has been convicted of a felony or whom the court considers incapable of fulfilling the duties of a guardian will be considered. In certain cases, a professional guardian may be assigned to the case. A bank trust department or nonprofit corporation may also be appointed guardian, but only in terms of being guardian of any property.

Functions of the Guardian

A court-appointed guardian acts under court supervision. The guardian is in charge of taking care of the ward's property, investing it carefully and using it for the ward's support. The guardian is responsible for finding appropriate living circumstances and providing for the ward's personal, medical, and mental needs. An annual accounting must be given to the court annually of the duties that have been performed. If a guardian is found to be ineffectual or negligent, he or she may be removed by the court. The guardian's position may not always be a permanent one. If the ward recovers and becomes more self-sufficient, the court will order a re-examination and re-evaluate the situation.

If you are concerned about establishing a guardianship for someone in your family, you need an attorney who is reputable, compassionate and experienced in estate planning and guardianship

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