If a resident of the State of Florida becomes incapacitated and no Power of Attorney or Trust has been set up, it becomes necessary to set up a guardianship. A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person.
If a person (“proposed ward”) is thought to be incapacitated, a Petition to Determine Capacity and a Petition to Appoint Guardian are filed. The Judge assigned to the case will appoint a three person committee made up of a doctor, another medical person and third person familiar with guardianship law to examine the proposed ward. In addition, the proposed ward has an attorney appointed for them to make sure the rights of the proposed ward are protected. If the examining committee concludes that the proposed ward is incapable of exercising certain rights, a hearing will be scheduled in front of the judge to determine whether the proposed ward is totally or partially incapacitated. The court must find the proposed ward incapacitated by clear and convincing evidence. If the court makes such a finding, a guardian will be appointed for the ward.
Any adult resident of Florida who has not been convicted of a felony may act as a guardian. Institutions such as banks may also act as a guardian. Persons designated by the ward to be his guardian and family members have priority in appointment. If more than one person petitions to be the guardian of the ward, the court will have a hearing on who should be appointed.
Once a guardian is appointed, the guardian of the person makes decisions about the living conditions and health concerns of the ward. The guardian of the property will take control of the ward’s property. Both report to the court yearly to tell the court the condition of the ward and to account for the income and expenditures of the ward. A plenary guardian is in charge of both person and property.
Should a ward regain their capacity, they can petition the court to terminate the incapacity order.
If a minor is given or inherits over $15,000.00, a guardian of the child’s property will be appointed. If the child’s parents pass away, a guardian of the child’s person will be appointed.
Contact Rice & Rose Law Firm if you have any questions about guardianships.
