A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person. A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court to care for an incapacitated person. An incapacitated person is an adult who has been judicially determined to lack the capacity to manage at least some of his or her property or to meet at least some essential health and safety requirements of the person. Guardianships are governed by the state of Florida.
Guardian advocacy is a process for family members, caregivers, or friends of individuals with a developmental disability to obtain the legal authority to act on their behalf if the person lacks the decision-making ability to do some, but not all, of the decision-making tasks necessary to care for his or her person or property.
Guardian advocacy is a simple process without the requirements of full on guardianship, but with many of the protections. An attorney is appointed, but doctor and mental health examinations are not required. Medical testimony, although informal, and an IQ of 70 or below are required (slightly higher IQs in some cases of spectrum disorders and Prader Willi syndrome may qualify).
Guardianship is reserved for those who are incapacitated and unable to manage finances or their person. When a petition is filed, it is usually because the person is in a crisis situation like exploitation; this will qualify for an emergency guardianship giving the victim help right away using the exploitation injunction.
The alleged incapacitated person (AIP) may be undergoing a medical crisis like a coma or dementia and have progressed to the point that he/she cannot pay the bills. A petition can be filed for incapacity (requiring fact based evidence) and for guardianship to help and protect the AIP. An attorney is then appointed to handle the proceedings.
Since guardianship is expensive and hard on the family, most importantly the AIP, discovery is done to see what legal documents are in place that could be used in place of a guardianship, if possible. Guardianship is a last resort.
While there are several scenarios where guardianship is necessary (dementia, exploitation, mental health issues, alcohol or drug abuse, inability to care for self), there is a regulated process to determine incapacity. There is an examining committee who investigates, makes an assessment, submits to court, and then a hearing is held to determine incapacity. The judge will enter the order to appoint a guardian and an attorney will administer the guardianship.
You may already have an appointment with the firm about your guardianship situation or you may be looking for an attorney to guide you through the process. Please contact our office and we are happy to give you more information on how to proceed.
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Author:
Shannon Miller, Florida Bar Board Certified Elder Law Attorney and founder of The Miller Elder Law Firm, is one of the leading elder law attorneys in Florida with decades of experience advocating for our seniors and adults with disabilities. This level of expertise comes from the thousands of cases she has successfully litigated, her direct advocacy at the state legislature (including drafting legislation) to protect seniors, and collaboration with other stakeholders in improving the lives of seniors and vulnerable adults. She currently serves as Secretary of the Elder Law Section of the Florida Bar.
Shannon is certified as a Circuit Civil Mediator and Arbitrator by the Supreme Court of Florida and a member of: The Florida Bar, American Inns of Court, The Elder Law Section of the Florida Bar, the Academy of Florida Elder Law Attorneys, the Eighth Judicial Circuit Bar Association, Associate Independent Mediator, Arbitrator, The Resolution Center of North Central Florida, and the Long Term Care Managed Care Technical Advisory Workgroup. Shannon is the Past President of the Florida Academy of Elder Law Attorneys. She has been certified through the National Network of Estate Planning Attorneys and served on the Elder Law Certification Committee of the Florida Bar.
In addition to the expertise of the firm, what makes The Miller Elder Law Firm special is the way clients are cared for, from the moment they call or visit the office to the conclusion of their case. The mission of every staff member is to help clients through the sometimes complicated process of getting older and suffering the infirmities of aging and death with dignity and independence. Everyone deserves to be heard, protected and confident in their end of life plan.
10 фев 2021
