If you were to suddenly become incapacitated due to an accident, injury or disease, what would happen to you? What if your advanced age keeps you from an ability to properly keep up with all your medications, regular hygiene, or basic finances? Are you planning for a family member to step in and take over your affairs? Will the state have to step in and appoint a guardian for you? The decision may not be that easy.
Unfortunately, even if you have a spouse, adult children, or other willing relatives, the law does not assume that they can make decisions for you. You should, right now, have proper estate planning in place to accomplish this. However, if you do not have any estate planning in place, in Florida, you may have to have a guardianship.
What is a guardian? A guardian is a surrogate decision-maker that is appointed through a court-approved process. If minor children receive financial assets, they must be managed by an adult, usually in the form of a legally-appointed guardian, unless other planning has been arranged. Disabled individuals may also be subject to guardianship. In addition, under Florida law, a guardian can be a person or an entity, like a financial institution or non-profit organization. This person or entity is appointed to exercise the legal rights of a person who is considered incapacitated or unable to make their own competent decisions, known legally as a “ward.”
How does the guardianship process work? The guardianship process may involve filing a petition with the local court where the alleged ward lives. When the petition is filed, the court will appoint an attorney to represent the alleged ward. A three-member committee of medical professionals is appointed and they will then examine the person and submit their findings to the court (note that the process is different for minor children as wards). The presiding judge will conduct an Adjudicatory Hearing within 30 days and appoint a guardian if warranted.
If the guardianship is uncontested it can usually be completed within 90 days. However, if needed, the court can appoint an emergency temporary guardian. Be aware that if an institution is appointed, such as a bank trust department, then the institution can only make decisions about the ward’s property, not about the ward himself or herself.
Who does Florida law prohibit from being a guardian? Florida law prohibits anyone, even family members, from becoming a legal guardian if they have been convicted of a felony, were judicially determined to have committed abuse, abandonment or neglect against a child, or have been found guilty, regardless of adjudication, in certain other offenses.
Most importantly, if you do not want a court to decide who your guardian should be, there are estate planning steps that you can take right now, prior to incapacitation or incompetence. For example, in an estate planning tool, like a power of attorney, you can choose your spouse or adult child to have the legal right to act on your behalf, whether it is to handle your financial decisions and/or your healthcare decisions.
Keep in mind, legal planning is not just for you, it is for your family, as well. To give your loved ones peace of mind, make plans to contact your Florida estate planning attorney now and create a good and solid estate plan for yourself now and in the future.
Planning for the future is critical to ensure that your goals for the end of life are achieved. We know this article may raise more questions than it answers. We do telephone, computer, and face-to-face appointments. Our face-to-face appointments are held outside in the open air (frequently selected by clients for document signing) and inside our office conference room. We follow all CDC guidelines. Our office procedures adhere to COVID-19 safety protocols and are designed and enhanced by medical review and air quality engineering.