Do you know what guardianship is in Florida? A Florida guardianship occurs when a circuit judge determines that a person lacks the capacity to manage his or her property or attend to at least some of his or her essential health and safety requirements. Unfortunately, a person cannot manage his or her property if he or she is unable to take the necessary actions to obtain, administer, and dispose of his or her real and personal property. Further, a person cannot meet the essential requirements for health or safety if he or she cannot take the necessary actions to provide his or her health care, food, shelter, clothing, personal hygiene, or other care without possibly causing serious and immediate physical injury or illness to occur.
What do we do if a Florida resident is not potentially incapacitated and unable to do these things? First, we look to see if the person has created durable power of attorney. If the person created a durable power of attorney, and the document is in effect, we can turn to the agent selected under the durable power of attorney who has legal authority to make these critical decisions. We can also look for health care documents that designate a surrogate to act on health care matters for the person who now faces capacity challenges.
If we do not have any pre-planning estate planning documents in place, then a guardian may need to be appointed by the local court. You will need to discuss this with your Florida attorney who understands Florida guardianship law. In Florida, we have both the Guardian of the Person and the Guardian of the Property.
Once appointed, the Guardian of the Person files with the clerk of the court an initial, and then an annual, plan that contemplates many actions that will be taken by the Guardian of the Person. The circuit judge’s approval of the plan provided to him or her can constitute authority to act for the ward without further court approval. There are limitations to the guardian of the person’s actions though and he or she needs to be represented by a Florida attorney who is well-versed in guardianship laws. For example, the guardian of the person cannot commit a ward to a mental health facility or consent to the performance on the ward of any experimental or behavioral procedure without prior court approval. This is very different from the Guardian of the Property, who is required to obtain court approval before taking many actions, including routine duties.
Remember, a guardianship may be able to be avoided if the person, who may not face incapacity challenges, has previously signed critical estate planning documents. We know that this is a complicated issue to understand and that our article may have raised more questions than it answers. We encourage you not to wait to contact our law firm and schedule a meeting with attorney Alan Poucher, Jr.