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?
- Petition for Appointment of Guardian
- Oath of Guardian
- Application of Guardian
- Order Appointing Attorney and Elisor for Alleged Incapacitated, Attorney visits ward.
- Order Appointing Examining Committee. Committee visits ward, reviews medical records and prepares a Report.
- Review and file Examining Committee Report with the Court.
- Prepare Notice of Hearing
- Prepare Letters of Guardianship
- Prepare Order Appointing Guardian
- Prepare Order Determining Incapacity
- Prepare Letters of Guardianship
- Petition to Waive Background check
- Order Waiving Background check
- Attend Hearing
- Appointing Guardian attend an 8 hour guardianship course
- File Initial Inventory
- File Initial Plan
- Determine your ward’s income and assets and establish a budget.
- File annual Accountings and Annual Plan