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Guardianship, sometimes known as a conservatorship, is a legal process that is utilized when it is determined that an individual lacks the capacity to manage their property or is having difficulty caring for their own health and safety.
Any adult may file a petition with the court to determine another person’s incapacity. This means that a concerned individual does not have to be related to the person in question, but they do have to provide factual information upon which they base their belief that the person’s property or safety is at risk. The individual that submits the petition is under no legal obligation to become the person’s guardian.
A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court for an incapacitated person – called a “ward” – or for the ward’s assets. Any adult, related or unrelated to the ward, can become a guardian, except for individuals who have been convicted of a felony or who are incapable of carrying out the duties of a guardian.
How is a person determined to be incapacitated?
Once a petition is filed, the court will appoint a committee to determine incapacity. This committee usually consists of two physicians and another person who by knowledge, skill, training or education can form an expert opinion. One of the three members must have knowledge of the type of alleged incapacity presented in the petition and each member must submit a report of their findings to the court.
The examination normally includes: a physical examination, a mental health examination, and a functional assessment.
The court also appoints an attorney to represent the person alleged to be incapacitated. They can, however, substitute their own attorney if they so choose.
If the majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. IF they find that the person is unable to exercise certain rights, however, the court schedules a hearing to determine if the person is totally or partially incapacitated. If they are found to be incapacitated in any respect, a guardian will be appointed at the end of the hearing unless other, less restrictive alternatives are available.
If the ward recovers from the condition that caused them to be incapacitated, a petition can be filed to restore the ward’s rights.
What are the alternatives?
Florida law requires the use of the least restrictive alternative to protect people that can no longer care for themselves or their property. If a person creates an advance health care directive, a durable power of attorney, or a trust while they are still competent, they may not require a guardian in the event of incapacity.
It can be hard to watch a friend or loved one who is struggling to take care of themselves or their own best interests and it is even harder to know what to do about it. If you think someone in your life may need a legal guardian or would like to explore what other options could help them, please don’t hesitate to reach out to our office. We have a dedicated team of attorneys who are highly knowledgeable in guardianship law that can help you determine the best way to move forward.