All You Need to Know About Florida Guardianship


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Assuming the role of guardianship is a big responsibility. If in any way you have plans of claiming guardianship, be aware of Florida guardianship law.

Definition of Guardianship
Guardianship is a legal process wherein an adult individual is assigned to perform the legal rights or act on behalf of a person proven to be incapacitated (including a minor). The guardian is a matured individual or organization, like a nonprofit institution or bank trust department, legally assigned by the court to look after the well-being of an incapacitated individual (guardian of the person) and/or its assets (guardian of the property).

When is a person categorized incapacitated?
An adult individual can be claimed incapacitated if he or she has been determined by a Florida court to be someone who is unable to manage his or her property due to critical health issues and/or for safety reasons. Minors may also be subject to guardianships.

Who are authorized to assess the validity of the claim of an incapacitated individual?
If you are filing a petition to assess an individual to be incapacitated, there is a committee appointed consisting of at least two physicians and another person whose field of expertise is focused on this area. The person claimed to be incapacitated may be subject to undergo a series of tests on the following areas: physical, mental and functional. Once the examination is done, the committee would submit their reports to the court handling the matter, and the court would evaluate the results and assign a legal representative (called a guardian) if the individual if found to be incapacitated. If the conclusion of the committee validated that the person isnít incapacitated, then the judge would dismiss the petition.

Who is qualified to act as a guardian?
Since our topic is focused in Florida, any adult person (and certain minors) residing in Florida is a qualified candidate for guardianship. The person applying for the role of guardian can be related or not related to the incapacitated person. However, there are instances where certain individuals cannot be considered for the role of guardian, such as those convicted with felony or not capable of fulfilling the responsibilities of a guardian. There are also other parties that can assume the role of a guardian like public guardians and certain institutions (bank trust department could be assigned the limited responsibility of handling the incapacitated personís property).

What is the scope of responsibility of an appointed guardian?
Some of the general responsibilities of the appointed guardian are:

ē Authorized to manage the property of the incapacitated person such as perform inventory, do investment on his or her behalf, and other financial transactions can be done once approved by the court.

ē Exercise the rights that were removed from the incapacitated person like providing personal care, medical and mental services and even finding the best housing accommodation fitted for the incapacitated person. If the person is diagnosed to be partially incapacitated, there is a limitation on the rights that the assigned guardian can execute.

Should a guardian be accountable?
A guardian is held accountable for the dealings or decisions it makes on behalf of the incapacitated person. A Family Law Attorney in Florida or other lawyers providing Florida legal services in the area of guardianship should be able to assist you with the guardianship, your duties and responsibilities and assist you throughout the guardianship process.

Is the role of guardianship permanent?
Not really. For instance, the guardianship and guardian role can be taken away once the personís incapacity condition improved and a petition can be brought to court. If the guardian fails to comply with his or her scope of duties, the guardianship role can also be taken away. Another reasons when the guardianship is no longer effective is when the guardian files a notice of resignation with the court.

What is the role of guardianship for minors?
The parents of a child are considered to be the guardians. There may, however, be events in which the court may assist a guardian to a minor, including the death or incapacity of a parent or both parents, or the minor inheriting or having an insurance claim over $15,000. The parents or the survived parent must petition the court for the appointment of a guardian; or a guardian may be appointed through a will.

ABOUT THE AUTHOR: Nico Apfelbaum
Nico Apfelbaum, Esq. is the managing attorney of Apfelbaum Law, a Florida law firm serving Port St. Lucie, Stuart, the Treasure Coast and assisting clients with matters throughout Florida. Apfelbaum Law provides a wide variety of legal services, including, family law, divorces, business and contract transactions and litigation, immigration, wills and estate planning, probate law, and real estate law. The attorneys of Apfelbaum Law will answer your questions, explain your options, and provide you with the tools and resources you need to make an informed decision.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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