Guardianship

Most people seem to have a few false impressions regarding issues concerning an individual’s competency:

  •  Doctor’s written opinions that an individual is not competent does not make an individual legally incompetent.  The doctor’s opinion is just evidence of incompetency.  Only a Circuit Court Judge can declare an individual to be legally incompetent.
  • General Durable Powers of attorney are generally effective at the time they are executed (unless it specifically states that it only springs into effect upon a triggering event, such as incapacity).
  • Being an Agent under a Durable Power of attorney does not “trump” the Principal’s (the person who made the Power of Attorney) ability to act for themselves.

There are a few types of guardianships:

  •  Voluntary:  The treating physician writes an opinion the person is competent.  The individual just does not want to handle their own affairs anymore.  The individual can terminate a Voluntary Guardianship at any time.
  • A Guardian Advocacy:  If an individual is born with certain disabilities, this procedure avoids the necessity of determining the individual to be incompetent, and the costs associated with this part of the procedure.
  • Involuntary Guardianship:  There are two (2) parts:  Incapacity and who is going to be the guardian.  Also, the guardianship can be limited to certain rights or can be a plenary guardianship (all rights).  A guardianship is generally established for the person and the property, however, it can be for either the person or the property.

What is involved in a Florida guardianship?

  1. Petition for Appointment of Guardian
  2. Oath of Guardian
  3. Application of Guardian
  4. Order Appointing Attorney and Elisor for Alleged Incapacitated, Attorney visits ward.
  5. Order Appointing Examining Committee. Committee visits ward, reviews medical records and prepares a Report.
  6. Review and file Examining Committee Report with the Court.
  7. Prepare Notice of Hearing
  8. Prepare Letters of Guardianship
  9. Prepare Order Appointing Guardian
  10. Prepare Order Determining Incapacity
  11. Prepare Letters of Guardianship
  12. Petition to Waive Background check
  13. Order Waiving Background check
  14. Attend Hearing
  15. Appointing Guardian attend an 8 hour guardianship course
  16. File Initial Inventory
  17. File Initial Plan
  18. Determine your ward’s income and assets and establish a budget.
  19. File annual Accountings and Annual Plan