Trusted Guardianship Law Attorney

What is a guardian? Who needs a guardian? How is a guardian appointed? We have the answers to these, and all your questions regarding guardianship.

In order to avoid the court system, you can appoint a guardian that will care for you if you become incapacitated. One way is through a durable power of attorney. A durable power of attorney is a legal document one signs granting authority to another to act in their place. Another way is through a trust. In your trust you can designate who will be your guardian (who will take care of you) if you become incapacitated. If you have not appointed a guardian prior to becoming incapacitated, your loved ones will be forced to go through the courts to have a guardian appointed for you. Your loved ones will appreciate the fact that you appointed a guardian, because the last place they want to be when you are ill is in a courtroom.

There are two forms of guardianship: guardianship of the property and guardianship of the person. Often they are both required; however, there are times when only one is necessary.

Guardianship of the property
A guardian of the property has the duty to locate and take control of the assets of the ward (incapacitated person). This includes, but is not limited to bank and savings accounts, investments and real property. The guardian must file an initial inventory and verify under oath as to its accuracy. The assets are placed in the name of the guardianship, and it the responsibility of the guardian to ensure that the assets are protected and spent as needed for the benefit of the ward. Annual accountings are required to be filed with the court, and are subject to approval by the court.

Guardianship of the person
Guardianship of the person is a more complex guardianship than a simple guardianship of the property. When a person has been determined incompetent by mental health professionals, or is adjudicated incompetent by the law, then the state appoints a guardian to care for and make major life decisions for the ward until the reason for incapacity no longer exists. The guardian of the person makes decisions affecting everything from the ward’s residence, medical care, travel, etc. Guardians of the person must file annual reports with the court to keep the court advised of the status and condition of the ward.

Your loved ones will be able to avoid the court process if you have taken the appropriate steps to designate your guardian before your become incapacitated. And, court costs and attorney’s fees will be saved.

Frequently Asked Questions About Guardianship Law

Guardianship is a complicated process. Those wanting to learn more about guardianship can learn more by asking questions. Here are some frequently asked questions:

What is the process for obtaining guardianship over a loved one in Florida?

You cannot obtain guardianship over a loved one until the court evaluates their competency and finds them to be incapacitated. To start the process, you may file a “Petition to Determine Incapacity.” The court will then order a medical and mental health assessment of the individual in question and appoint an examining committee of three professionals to make a recommendation.

The steps to obtain guardianship can be daunting. If you are wishing to obtain guardianship of a loved one, do not hesitate to reach out. I can help you through the process of obtaining guardianship.

How is a person determined to be incapacitated?

Someone is considered incapacitated when they can no longer manage at least some of their financial, physical or mental needs. This process may begin with a doctor’s evaluation, but it is formally established after someone files a formal petition with the court regarding the situation, a court-appointed examining committee evaluates the individual’s ability to make competent decisions and a judge makes a finding.

Can I choose who will be my guardian in the event of incapacity?

Yes. You can make a “pre-need” guardianship designation through a formal document and file this declaration with the court. If you are later found incapacitated, the court will generally allow your designated pre-need guardian to take over your affairs.

Can a guardianship be terminated or modified?

Yes. There are several ways a guardianship may be terminated or modified. In some cases, the loved one in need of support from a guardian may recover from their mental or physical illness, which could lead to the termination of a guardian or modification to limit their role. A guardian may also be terminated if they are no longer willing to care for their loved one or if they act outside their role.

Call The Law Office of Mary Beth Kelly, LLC in Lake Mary at 407-536-6901 or send an email to discuss guardianship today.