One can never predict the events of a person’s life with 100% accuracy. Unexpected issues often arise. This is one of the reasons it’s wise to execute an estate plan and to incorporate documents, such as a power of attorney or advance directive. These options are less restrictive than adult guardianship. However, if a person has not implemented any type of pre-need directive in a Florida estate plan, and becomes incapacitated, then the court may determine it necessary to appoint a guardian.
If your parent, for example, is unable to make decisions or care for himself or herself, the court may appoint you as a plenary guardian, meaning that you would have authority to make all decisions regarding finances, health and other issues, for your parent. When the court appoints guardianship, the person appointed is known as the ward. If a ward is still capable in some capacity of managing certain tasks or making some decisions, the court can order a limited (rather than plenary) guardianship.
Adult guardianship can be voluntary or involuntary
If a doctor has diagnosed your loved one as fully incapacitated, the court can appoint guardianship involuntarily. However, in some cases, a person might request guardianship on his or her own behalf. This is known as voluntary guardianship. Florida law requires an individual making this request to present a certificate from a licensed physician, stating that he or she is mentally competent and understands the nature of the request.
Florida statutes regarding guardians, the court’s role, etc.
Every state has its own elder law guidelines. In Florida, rules regarding adult guardianship are in Chapter 744 of the state’s statutes. Another document, known as “Probate Rules, Florida Rules of Court,” lists the duties and obligations of guardians, court officials, attorneys and others who may hold key roles in carrying out a guardianship for an adult who is partially or fully incapacitated.
Family members must receive notice ahead of time
If you plan to request adult guardianship over a loved one in Florida, you must notify family members before filing the petition. In the past, there have been cases where one or more family members have contested a guardian. When that happens, the court reviews the case and appoints a specific guardian, which may or may not be the person who filed the petition.
It’s also possible that a request to remove a guardian may take place after the court has already appointed one. This often occurs when there is evidence of elder abuse. It is wise to seek counsel before taking any legal action regarding adult guardianship to ensure that you understand state laws and are exercising the legal options that best fit your needs.