The Swanson legal team has the experience necessary to assist you with all types of guardianships, including contested guardianship proceedings.
Guardianship for an Incapacitated Adult
Adults who need a guardian may have dementia, Alzheimer’s disease, mental illness or other condition that impairs the person’s decision making capacity. Florida law has specific procedures for the determination of incapacity and appointment of a guardian. Florida guardianship law favors finding ways to avoid guardianship altogether and using guardianship as a last resort. When a person is declared by a court to be "incapacitated," the person loses the legal right to make certain decisions. Examples of rights which can be removed from an incapacitated individual include the right to make medical decisions, to decide where to live, how to spend money, and to enter into a contract.
When a petition for determination of incapacity is filed, the court appoints an attorney for the alleged incapacitated person and appoints an examining committee of medical professionals to examine the alleged incapacitated person. Next, the court holds an incapacity hearing to determine whether the person has capacity or is partially or totally incapacitated. If the court finds that the person is incapacitated, the court must then determine whether there are any less restrictive alternatives to guardianship that would address the problems of the person.
If an incapacitated individual has a durable power of attorney, a trust, or a designation of a health care surrogate, and the court finds that those documents constitute a less restrictive alternative to a guardianship, the court must allow the individuals appointed in those documents to make decisions on behalf of the incapacitated person as authorized in the documents.
However, if the court finds that there are no documents that meet the incapacitated individual's needs, or the court finds that the person appointed under the documents can no longer act in the best interests of the incapacitated individual, the court will appoint a guardian.
Florida guardianship law requires guardians of the property to file an initial report describing the assets of the ward and the guardian of the person to file a report describing how the guardian will ensure the social, physical and mental health care of the ward. Thereafter, guardians of the property must file an annual accounting and guardians of the person must file an annual plan.
Guardian Advocacy for Adults with Development Disabilities
A guardian advocacy is a type of guardianship for persons with developmental disabilities who lack the capacity to do some, but not all, of the tasks necessary to care for his or her person or property. In a guardian advocacy, the court delegates some of the rights of the person with a developmental disability to another person without declaring them incapacitated.
Guardian advocacies are governed by the Developmental Disabilities Act, Chapter 393 and by portions of Chapter 744, of the Florida Statutes. Chapter 393 defines a developmental disability as a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial disability that can reasonably be expected to continue indefinitely.
A guardian advocacy is less intrusive and easier to implement, than a "regular" guardianship for an adult which requires an incapacity proceeding.
Guardianships of Minors
Parents of minor children are considered "natural" guardians for their children. Sometimes a guardian of the person of a minor is needed. For example, if a minor’s parents are both deceased or unable to care for a child, a relative or friend may be appointed guardian to make decisions regarding the child’s physical health and safety, and social environment. Filing a petition for temporary custody by extended family member is another option to be considered instead of establishing a guardianship of the person for a minor.
Florida Statutes require a guardian of the property to be appointed when a minor receives $15,000 or more of property, through an inheritance or a net settlement of as a result of a personal injury, property damage or wrongful death. The court may appoint a parent, sibling, next of kin or another person interested in the minor’s welfare as the guardian of the minor’s property. There is no determination of incapacity under these circumstances. The guardianship will terminate upon the minor reaching the age of majority.
Guardianships are sometimes confused with the Guardian ad Litem program where guardian ad litems are appointed by the Court to represent the best interests of abused and neglected children in dependency court.