FLORIDA – September 30, 2020

Elder guardianship is an option for individuals who have not appointed a formal power of attorney for health care, or finances, but need someone to oversee their affairs when they become temporarily, or permanently incapacitated because of aging, illness and/or disability. 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. The process is governed by Chapter 744, Florida Statutes.

Incapacitated elder.

Anyone over the age of 18 may file a petition with the court to determine another person’s incapacity by stating the case facts pertinent to the actions and needs of a person they believe to be incapacitated. A committee will be appointed by the court, usually made up of two physicians and a trained expert in elder care incapacity, who can give a pertinent opinion to the individual case. A formal report must be submitted to the court by each of the committee members.

Examination of the person in question will have to be undertaken, including a physical exam, mental exam, and a functional assessment, to determine if they are capable of handling their own affairs.  The person who is alleged to be incapacitated will have legal counsel appointed by the court, or they may hire their own attorney.  If the committee reports that the person is not incapacitated, the judge is required to dismiss the petition.  Conversely, if the committee findings reveal total or partial incapacitation, a guardian will be appointed after an incapacity hearing.

Guardian.

A guardian is an individual or institution (such as a nonprofit corporation, or bank trust department) appointed by the court to care for an incapacitated person commonly referred to as a “ward.” Any adult who is related, or unrelated to the ward and is a resident of Florida can serve as a guardian as long as they are not a convicted felon, are not capable of carrying out guardian duties, or there is a conflict of interest.  An institution such as a nonprofit corporation can also be appointed guardian, but a bank trust department may act as guardian only to matters of the ward’s property.

Accountability.

Guardians are accountable for any action taken on behalf of a ward.  It is common for a guardian to provide a bond, and meet the court-approved training program requirements of the state.  If a guardian is not properly carrying out their prescribed duties, they may be removed from that position by the court.

Seek legal counsel.

An experienced attorney at The Estate, Trust & Elder Law Firm in Vero Beach Florida can provide professional assistance in the preparation of guardian petitions for the welfare of elder individuals who may be temporarily, or permanently incapacitated. Every guardianship case is unique and can be addressed by a skilled Florida attorney.

The Estate, Trust & Elder Law Firm, P.L.

IRC Chamber of Commerce

1216 21st Street
Vero Beach, FL 32960
Phone: 772-410-5156

Sources.

https://www.floridabar.org/public/consumer/pamphlet030/

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/0744.html

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