Guardianship

What Are Incapacity & Guardianship Proceedings?

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Incapacity Proceedings 

In the state of Florida, if someone lacks the capacity to make their own medical and/or financial decisions and they do not have proper estate plans in place nominating someone to make these decisions for them, they will find themselves in an incapacity determination hearing. 

Although it is usually a family member, ANYONE can initiate incapacity proceedings on behalf of another. Meaning a person files with the Court a Petition to Determine the incapacity of another. Once the Petition is filed, (usually within 5 days), the Court will appoint an examining committee consisting of three members (a social worker, a psychologist and a physician). The examining committee will conduct independent evaluations of the alleged incapacitated person (“AIP”) and render reports to the Court as to whether they believe the AIP has or lacks capacity. 

The Court will also appoint an attorney to represent the AIP.  

Once the reports are rendered, the parties can agree as to incapacity or set the matter for trial. Incapacity hearings are evidentiary, and the rules of evidence apply. The Court always considers whether there are less restrictive alternatives to guardianship. It is highly recommended that you have qualified legal counsel at these hearings.

What is the burden of proof at an incapacity hearing? The Petitioner has the burden of proving the partial or total incapacity of the alleged incapacitated person by “clear and convincing evidence.” Florida case law provides that a finding of incapacity by clear and convincing evidence is not precluded by conflicting testimony of experts. Smith v. Smith, 917 So. 2d 400 (Fla. 5th DCA 2005). 

If the Court determines the alleged incapacitated person is incapacitated and there are no less restrictive alternatives, then the Court will appoint a Guardian and issue Letters of Guardianship. Depending on the determination of the Court, the alleged incapacitated person may require a Guardian of the person, a Guardian of the property, or a Guardian for both the person and the property. 

At the Horton Law Group, we treat our clients like family. We are actively involved in the community, and we maintain professional relationships with our clients long after their cases are resolved. We are confident that you will be happy with your decision to hire the Horton Law Group to represent you during this difficult time. Please contact the Horton Law Group, P.A. at 561-299-0018 or email legalsupport@hortonlawgroup.com to schedule a free 30-minute consultation with a qualified member from our team.

Guardianship Litigation 

Contemporaneously with the incapacity proceedings, guardianship proceedings should be pending too. 

Florida law allows both voluntary and involuntary guardianship proceedings. 

Guardianship proceedings can take place over incapacitated adults or minor children, on a temporary or permanent basis. 

  • A voluntary guardianship may be established for an adult, who, though mentally competent, is incapable of managing their own estate and who voluntarily petitions for the appointment. 
  • An involuntary guardianship may be established for an adult, who is not mentally or physically competent, and incapable of making sound decisions.

The Florida Guardianship Statutes are designed to preserve the incapacitated individual’s rights and confer only the rights necessary to the Guardian to ensure the Ward’s wellbeing. 

The process begins with the filing of a:

  • Petition for Appointment of a Guardian: This Petition asks the Court to appoint a Guardian to the Ward.
  • An Application for Appointment of a Guardian: This Application asks the Court to appoint the Petitioner as Guardian of the Ward. 
  • Guardians are required to take training classes. Once appointed as a Guardian, whether as the Guardian of the person or Guardian of the property, Florida Statutes require the satisfactory completion of a training course within four (4) months of appointment. Both the Guardian of the person and the Guardian of the property are required to satisfactorily complete an eight (8) hour training and instruction course. A Guardian of the property for a minor is only required to receive four (4) hours of training and instruction.

How Quickly May the Court Appoint a Guardian? Once the Petition for Incapacity is filed, the Court will appoint an attorney to represent the alleged incapacitated person and an examining committee to conduct an evaluation within five (5) days. The examining committee will complete their evaluations and submit their reports back to the Court within fifteen (15) days. The Court will then set a hearing to be held within fourteen (14) days after receiving the reports from the examining committee. The reports filed by the examining committee should include a diagnosis, prognosis and a recommended course of treatment.

If the guardianship is uncontested, the Court may appoint a Guardian in as little as ninety (90) days. If the guardianship case is contested, it can take several additional months to engage in discovery, depositions and thereafter attend trial.  

At the Horton Law Group, we treat our clients like family. We are actively involved in the community, and we maintain professional relationships with our clients long after their cases are resolved. We are confident that you will be happy with your decision to hire the Horton Law Group to represent you during this difficult time. Please contact the Horton Law Group, P.A. at 561-299-0018 or email legalsupport@hortonlawgroup.com to schedule a free 30-minute consultation with a qualified member from our team.

FAQs

  • What is a Guardianship?

A Guardianship is the legal relationship between the Guardian and the Ward (the alleged incapacitated person). 

  • What is a Guardian?

A surrogate decision-maker appointed by the Court to make either personal and/or financial decisions for a minor, or for an adult, with mental or physical disabilities. Fla. Stat. 744.102.

  • Who is a Ward?

A person whom the Court has determined to be legally incapacitated. The Ward has functional limitations that prevent them from being able to make their own decisions and has had, or should have, some or all of their rights removed. (Fla. Stat. 744.102).

  • Who May Serve as a Guardian?

Any Florida Resident who is eighteen (18) years old and any non-resident who is related to the Ward by blood, marriage, or legal adoption may be a Guardian. This extends to the spouses of brothers, sisters, uncles, aunts, nieces, and nephews as well. Additionally, a bank or trust company may be appointed the Guardian of the Ward’s property, and a religious or charitable nonprofit corporation can be appointed the Guardian of a Ward’s person. If none of the above apply, the Court may appoint a public Guardian to the Ward. (Fla. Stat. 744.309).

  • Who CANNOT Serve as a Guardian? 

Florida Statute 744.309 also prohibits the appointment of anyone as a Guardian if they have been convicted of a felony, or determined to have committed abuse, abandonment, or neglect against a child, or have been found guilty, regardless of adjudication, in certain other offenses. In addition, a person who may be unable to perform his or her duties due to illness or incapacity may not be appointed.

  • What Are the Duties of a Guardian?

Upon appointing a Guardian, the Court will grant a degree of authority to a Guardian. When a Guardian is awarded authority over property, the Ward must inventory the property, invest it prudently, use it to support the Ward, and account for it by detailing annual reports with the Court. Certain financial transactions by the Guardian may require permission from the Court. The Guardian of the Ward may exercise the rights that the Court removed from the Ward and delegated to the Guardian, such as providing medical, mental, and personal care services and determining the residential setting best suited for the Ward. The Guardian of the person must also present to the Court every year a detailed plan for the Ward’s care including a Physician’s Report. There are lots of additional duties conferred upon the Guardian, therefore it is important to have legal counsel to ensure that you comply with your duties under Florida law. 

Why choose the Horton Law Group?

At the Horton Law Group, we treat our clients like family. We are actively involved in the community, and we maintain professional relationships with our clients long after their cases are resolved. We are confident that you will be happy with your decision to hire the Horton Law Group to represent you during this difficult time. Please contact the Horton Law Group, P.A. at 561-299-0018 or email legalsupport@hortonlawgroup.com to schedule a free 30-minute consultation with a qualified member from our team.

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