Why Might I Need to be Appointed as a Guardian?
Do you have someone in your family, young or old, who is unable to take responsibility for their physical or mental condition? Perhaps it is an elderly family member who suffers from dementia, chronic illnesses or health-related disabilities, such that he or she has become unable to engage in the Activities of Daily Living (ambulating, feeding oneself, dressing and grooming; bathing; and "transferring," such as in and out of bed or to and from the toilet) or in the Instrumental Activities of Daily Living (managing finances or transportation; shopping and meal preparation; housekeeping and home maintenance; managing communication or medications).
Or it may be that the family member is in a more serious condition, with a more urgent need of protection. I have a client whose spouse was suffering from dementia and was refusing necessary medical treatment. My client was surprised, to receive, based on an anonymous report, a threat from the Florida Department of Children and Families to have his spouse subjected to involuntary placement under the dreaded Baker Act.
In any of the foregoing situations, it may be either desirable or advisable that a guardian be appointed to provide the appropriate care for the person in question.
What Exactly is a Guardianship?
Guardianship is a status, governed under Florida law, in which a person is granted legal authority to manage the affairs of someone, (designated by the court as a "ward") who lacks the ability to manage his or her own affairs. The guardian is granted the right to make decisions on behalf of the ward that affect many aspects of that person’s daily living. Also, the guardian is bound by ethical and statutory obligations to perform his or her duties in the ward's best interest.
Three Types of Guardianship
There are three types of guardianship:
- Guardian of the Person – Responsibility for the ward’s personal welfare.
- Guardian of the Property – Responsibility for the ward’s financial welfare and the management of his or her property.
- A combination of the two,
Who Can Qualify to Serve as a Guardian?
Anyone who is:
1. 18 years of age or -over; and
2. either a Florida resident or a non-resident who is
(a) related as a direct descendant of the ward;
(b) a legally-adopted child or adoptive parent of the ward;
(c) a spouse;
(d) someone with a blood relationship with the ward, such as a brother, sister, uncle, aunt, niece, nephew; or
(e) the spouse of anyone listed in (d), above; and
3. has never been convicted of a felony.
How to Become a Guardian in Florida
In order become appointed as a guardian, one files two petitions with the court, along with a formal application:
1. a Petition to Determine Incapacity, which asks the court to confirm that the alleged ward needs a guardian;
2. a Petition for Appointment of Guardian, which asks that a guardian be appointed to manage the affairs of the incapacitated person; and
3. an Application for Appointment as Guardian (the "Application"), requesting that the court appoint the applicant as guardian.
In order to establish incapacity, it is necessary to appoint an examining committee. This is a three-person group that is composed from a list of medical professionals (these must be a psychiatrist) provided by the court. This "committee" never actually meets. Nor do its members normally interact or communicate with each other. Instead, each member separately meets with the alleged incapacitated person and conducts an examination to determine that person’s condition. The key things to consider here, are that (1) none of these committee members, including the psychiatrist, are charged with actually treating the person, but only with examining them; and (2) the person seeking the guardianship is the one who selects, contacts and interviews each committee member and schedules the examination. Finally, each member, upon completion of his or her examination, prepares and files a written evaluation.
At a hearing, if the court determines there to be incapacity, based on the committee member findings, the petition is granted. Upon such determination, and at the same hearing, the Petition for Appointment of Guardian and the Application are submitted. Within a short period thereafter, the Petition and Application are normally granted.
Contact Our Office for Help
Anyone considering applying for an appointment as a guardian should also consider enlisting the aid of an attorney to help them navigate the process. Please contact our office for a no-charge, initial consultation.