When an individual no longer has the mental capacity to manage his or her financial affairs and property or to make personal decisions relating to health care and residence, a guardianship may be necessary. A guardianship may also be necessary if there are concerns that someone is being financially exploited or physically abused.
Guardianship is the legal process of petitioning the court to appoint a guardian to make decisions on behalf of the alleged incapacitated person (AIP).
Once appointed, the guardian stands in the shoes of the individual and is in charge of making personal decisions for the individual and/or decisions about his property. The process begins with a court proceeding brought by a petitioner who may be concerned about an elderly relative, friend or neighbor who doesn't appear to be caring for himself or herself properly. The petitioner may want to be the guardian of the person they are concerned about, or the petitioner may want to have a professional guardian appointed.
If a less restrictive alternative is available, which can effectively and safely meet the needs of the individual, a guardianship may be avoided. Meeting with an experienced guardianship attorney will help you deter to determine which legal option is the best option for your loved one.
For example, having a durable power of attorney and designation of health care surrogate may help avoid a guardianship. However, a guardianship may still be necessary even when those documents are in place. That is why is important to review your situation with a Guardianship Attorney experienced in the many nuances of guardianship to help you know what legal steps need to be taken to protect your loved one.
Under Florida law, a person seeking appointment as a guardian must be represented by an attorney. The guardianship process consists of numerous petitions and orders that must be drafted and filed with the court. The petitioner will be required to attend hearings related to the guardianship. The court appoints an attorney for the alleged incapacitated person (AIP). The court appointed attorney represents the AIP in the incapacity hearing to ensure that his due process rights are protected. The court also appoints three examining committee members to complete a formal assessment of the AIP. These examining committee members submit their recommendations to the court.
Guardianship Attorney’s fees and costs are charged on an hourly basis and many times these expenses can be paid from the incapacitated person’s assets, after court approval is secured. A guardian is a fiduciary, meaning that a person wanting to become the guardian of another person must not have any felony convictions or crimes of dishonesty. Once appointed the guardian must complete and file an Initial Plan and Verified Inventory, attend a required eight (8) hour guardianship course,and prepare annual plans and accounts. In addition, there are certain actions for which a guardian must secure prior court approval before taking action, such as selling real property belonging to the incapacitated person. At The Elder Law Center of Kirson & Fuller our experienced guardianship attorneys are here to answer your questions and to guide you through the guardianship process, from appointment through the ongoing administration of the guardianship. We serve areas of Orlando, Altamonte Springs, Winter Park, Casselberry, Winter Springs, The Villages, and Lake Mary.