Guardianships are legal matters none of us want to find ourselves involved with, whether such involvement is as the person seeking guardianship over a friend or family member, or being the person in need of a guardian. Proper estate planning can reduce or altogether eliminate the need for a guardianship, but for those who did not plan accordingly – or whose plans are out of date – a guardianship may be the only way to ensure an incompetent person receives the proper physical and mental care.
At Marshall Law, I have been handling guardianship cases since 2006. I have participated in numerous guardianship cases and represented every different type of party that can be involved. While most guardianships are uncontested and undertaken by family and/or friends for the benefit of a loved one, some cases can be contested and turn into complex litigation matters. Working with Marshall Law, will put a lawyer on your side who understands the intricacies of guardianships and what needs to be done to obtain the outcome that best serves the person in need.
Explaining The Guardianship Process
Guardianship is the judicial process of appointing one or more people to handle the health and/or financial needs of a person determined to be mentally incompetent; this person is called the “Ward”. The medical or financial rights a Ward can have removed include, but are not limited to, the right to marry, vote, contract, manage or dispose of property, have a driver’s license, determine residency, consent to medical treatment, or make decisions regarding their social environment.
Petitioning for guardianship is just the beginning. Once the court issues an order determining a person incapacitated and another order appointing a guardian, the guardian will then be subject to annual reports regarding the management of the ward’s physical well-being and finances. At all times during the guardianship process, the guardian must be represented by an attorney. Based on the age of the ward, guardianships can last for many years and cost thousands of dollars.
What Are The Different Types Of Guardianships?
The following are the different kinds of guardianships that can be undertaken in Florida:
- Guardian of the Person. When a person is unable to make decisions regarding their personal safety and well-being, and if they have no valid Advanced Health Care Directives ( or if they have such documents but the persons named in the documents are unavailable or incapable of acting appropriately) then a guardian of the person will be appointed to make the ward’s decisions regarding the exercise of their personal rights.
- Guardian of the Property. When a Ward is unable to handle their finances and they do not have a Durable Power of Attorney (or the persons named in the Durable Power of Attorney are unavailable or incapable of acting appropriately), then a guardian of the property will be appointed to marshal the Ward’s assets and use them to pay for the Ward’s care.
- Guardian Advocate. Parents of children who are mentally challenged lose parental rights when their child turns 18 because that child is legally an adult. When a mentally challenged child’s incapacity is well documented prior to reaching adulthood, parents or other family members can petition to be appointed the guardian advocate of their adult child. This process is much faster and less complex than the appointment of a guardian for the person and/or property as discussed above.
- Guardian of a Minor. The natural or adopted parents of a minor are considered the child’s guardian for all purposes. If, however, one or more of the parents of the minor child are not available, a parent, brother, sister or “next of kin” can petition to be appointed the minor child’s guardian for purposes of handling their health and financial decisions. This type of guardianship automatically terminates when the minor child turns 18.
- Claims of Minors. If a minor child is to receive a distribution from a settlement or an estate, and the amount of money to be received is equal to or greater than $50,000, then the parents or a “next of kin” must petition the court for appointment as the child’s guardian ad litem. The appointed guardian ad litem will be authorized to settle the minor’s claim or receive an estate distribution, which the guardian ad litem must hold and manage for the minor child until they turn 18 years of age.
- Foreign Guardians. If a Ward subject to a guardianship in another state is moved to Florida, the guardian can petition the court to “transfer” the guardianship to Florida. These situations often occur when a Florida resident is the guardian for an out-of-state ward, and it becomes necessary to move the ward to Florida to be closer to the guardian.
- Nonresident Wards. If a nonresident ward owns property in Florida, either a Florida resident or a nonresident guardian may petition the court for authorization to manage the ward’s property in Florida. This is typically required when the ward owns real property in Florida (e.g. vacation home, orange grove, farmland, etc.) as only Florida’s courts have jurisdiction over such assets.
Guardianships can be costly in terms of both time and money. Adding to the difficulty of a guardianship is trusting a judge – who does not know you and your personal desires – appoint the person who will be your guardian. .
The most effective method of avoiding a guardianship is through estate planning measures that include, but are not limited to, the use of a Revocable Living Trust, Durable Power of Attorney, and/or Advanced Health Care Directives. The law permits your Trustee, Agent and/or Health Care Surrogate to act without court approval and oversight unless it can be demonstrated such people are not acting in your best interest. At Marshall Law, I consider and discuss guardianship-related issues when designing every client’s personal estate plan. I want to put you in charge of deciding who will manage your future care.
Contact Me To Learn More About Your Guardianship Options
Considering a guardianship is never easy, no matter your situation. At Marshall Law, I provide a supportive environment so you can feel comfortable and confident with these important decisions. To schedule a consultation, call me at 352-619-0744 or complete my online contact form.