Are you looking to protect a vulnerable loved one? Whether it’s a child with special needs or an adult with cognitive impairment, we empathize with your concerns. Guardianship serves as a legal safeguard for minors, incapacitated individuals, and individuals with intellectual disabilities, ensuring their welfare and security.
This article covers the legal aspects, decision-making authority, procedural steps, expectations during the process, and the different forms of guardianship recognized in Florida law. While this information can help provide more perspective, it is important to consult with a qualified guardianship attorney who can guide you each step of the way. While the guardianship process may seem simple, these cases are often complex and require extensive knowledge to successfully reach a positive outcome for our clients.
Raymond S. Grimm, Esq. has been engaged in the practice of all aspects of family law, estate planning, guardianships, general civil litigation and appellate practice for over 30 years. We’re here to help you. Please contact Raymond S. Grimm Law today by calling (941) 423-7897 or completing our online form to schedule a complimentary consultation.
Guardianship in Florida delegates the legal responsibility of managing some of the affairs of individuals who are unable to do so. The court seeks the least restrictive alternative to adequately protect the interests and health of the alleged incapacitated person. After the initial guardianship process determines an individual to be incapacitated, the court appoints a guardian. Once a guardianship is established, the person is referred to as a “Ward”. As a legal guardian, you are granted the authority to make decisions on some aspects of the ward’s daily life.
Guardians are fiduciaries. They are ethically and legally obligated to act in the best interest of the ward when making financial, medical and personal decisions. The appointed guardian assumes the legal rights to oversee some of the ward’s care, manage legal and financial affairs, and make healthcare decisions for the individual, whether they are an adult or a child.
If you are considering guardianship for an incapacitated adult, minor child or person with an intellectual disability, it is essential to understand the types of guardianship available and their specific purposes. A knowledgeable guardianship attorney will assess the situation and determine how a guardianship should be tailored to the needs and capabilities of the individual, when other less restrictive alternatives do not apply to the situation.
The Guardianship Process
The Florida guardianship laws strive to strike a balance between personal autonomy and the safety and well-being of the person to be protected. In specific cases, a court may revoke some or all of an individual’s civil rights to ensure their protection. In such circumstances, the court can establish guardianship over the person’s property, medical and personal affairs, or both.
To secure guardianship over an adult, a person files a Petition to Determine Incapacity to determine the mental capacity of the alleged incapacitated person. An examining committee will be appointed by the court to evaluate the individual. Once the examining committee members submit their reports to the court, an incapacity hearing will be held to review the committee’s assessment.
The judge will then decide which legal rights, if any, should be revoked and appoint a legal guardian. Some of the legal rights removed from the individual can be exercised by the guardian, such as the right to enter into contracts, to sue and defend lawsuits, to apply for government benefits, to manage property; to make gifts or other disposition of property, to determine residence, to make health care decisions, and to make decisions about the person’s social environment or other social aspects of their life.
Other rights, such as the right to marry, vote, personally apply for government benefits, have a driver’s license, travel, and to seek or retain employment, cannot be delegated to the guardian and will no longer be exercised unless the Ward is restored to capacity at a later date. For children with intellectual disabilities, obtaining guardianship involves petitioning the court to become a guardian advocate. Unlike guardianships based on incapacity, demonstrating the child’s incapacity is not mandatory and an exam committee will not be appointed to assess mental capacity.
Upon approval of a Petition to Appoint a Guardian Advocate, an order establishing the guardian’s responsibilities will be issued. This enables the guardian to manage the affairs of the intellectually disabled child as they transition into adulthood. Guardianships can also be established over minor children who are not intellectually disabled if they have assets valued at over $15,000.00 as their parents are not authorized to manage the child’s property.
The Guardian will be expected to report to the court the status of the Ward’s affairs each and every year. These status updates come in the form of Annual Plans( reports) and Annual Accountings. An annual plan addresses how the medical, mental health conditions, rehabilitation, social and educational needs of the Ward will be managed in the upcoming year. The Annual accounting details all financial transactions conducted on behalf of the ward for the foregoing year. The court has discretion to waive the requirement to file an annual accounting when the Ward has little to no assets.
Different Types of Guardianships
The court has the authority to grant various types of guardianships, including:
Limited Guardianship: This type allows individuals who are only partially incapacitated to retain decision-making control in specific areas where they are adjudged capable. The guardian manages those rights that are removed from the Ward and delegated to the guardian, if any.
Plenary Guardianship: For completely incapacitated persons, removes all of the Ward’s rights and grants the guardian full authority over all delegable rights as discussed above.
Guardian Advocacy: This legal process enables those who are appointed as a Guardian Advocate to make crucial decisions on behalf of loved ones with intellectual disabilities.
Minor Guardianship: This applies in scenarios where a child loses their parents, the parents are deemed unfit, or the child inherits substantial assets. In such cases, the Florida guardianship courts appoint a guardian to ensure the child’s well-being and assets are protected. Family members are typically prioritized for guardianship when available.
Contact Raymond S. Grimm Law Today
When deciding whether or not to go forward with a petition for guardianship, seeking advice from a seasoned guardianship attorney is crucial. As a North Port guardianship lawyer with over three decades of experience, Raymond S. Grimm, Esq. takes pride in assisting family members or caregivers through the process of legal guardianship. It is essential to have someone who can provide empathy and knowledgeable legal advice to help you navigate your choices and make the best decisions for you and your loved ones. Call Raymond S. Grimm, Esq. at (941) 423-7897 or complete our online form to schedule a complimentary consultation.
