As we get older, things that were simple can become difficult. Age, illness, or an unexpected tragedy can cause an individual to be incapable of handling the routine affairs of life, like managing finances, paying bills, and making other important decisions. When this happens it is important to act and protect these individuals from costly mistakes or sadly the bad intentions of those who may try to take advantage of their vulnerability. That’s where an experienced Treasure Coast guardianship attorney can step in to assist.
Neill Griffin Marquis Osking, PLLC helps families establish guardianship for their loved one which can protect their rights and secure their finances. We aggressively protect individuals and families who are facing the emotional and stress-inducing challenges involved when a loved one is no longer able to handle things as they once did.
HOW IS GUARDIANSHIP DEFINED IN FLORIDA?
A guardian is a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities. Broadly it describes those scenarios in which an individual is appointed by the court to exercise the rights of and make decisions for a person who is deemed legally incapacitated to personally make those decisions. In practice, guardianships are imposed primarily in two circumstances:
- To exercise control over the property of a minor who our law holds to be incapable of owning property
- To make decisions for adults who do not have the capacity to care for themselves in one or more aspects of their lives.
WHO CAN BE A GUARDIAN AND WHAT POWERS DOES A GUARDIAN HAVE?
A “guardian” is a person or entity (such as a non-profit or corporate trust department) who has been appointed by the court to provide that assistance by acting on behalf of the individual. Any adult Florida resident, whether related or unrelated to the incapacitated person, can serve as a guardian unless they have been convicted of a felony or are incapable of carrying out responsibilities involved in being a guardian. Certain family members who do not reside in Florida are also eligible to serve as guardians.
Institutions that are appointed as guardians can only be granted authority over the individual’s property, not their person. A judge can consider the wishes expressed by the incapacitated person in a written declaration or at the hearing regarding his or her competence.
Keeping with the goal of providing the assistance “that least interferes” with the legal capacity and rights of the individual, the scope of a guardian’s power can be limited or broader in scope depending on the nature of a person’s incapacity and the scope of protection that is afforded by the person’s estate plan. The powers and authority granted to the guardian will be in keeping with Florida’s strong public policy that favors limiting the scope of guardianship so that it is the least restrictive means of protecting the ward’s property and person.
A guardian given authority over property is required to inventory the property, invest it responsibly, use it for the ward’s support, and account for it by filing detailed annual reports with the court. The guardian also must obtain court approval for certain financial transactions.
ESTABLISHING A FLORIDA GUARDIANSHIP
For obvious reasons, having someone declared legally incapacitated and taking away their authority over their own life is not something that is done easily. Before a court will make a finding of incapacity, there are numerous steps that must be taken and proof provided so that the judge can make a fully informed decision.
In those situations where it is believed that an adult person lacks the capacity to make decisions and/or meet their own needs, the guardianship process takes the following form:
- An adult, usually but not necessarily a family member, files a petition with the court asking it to make a determination as to an individual’s incapacity;
- Once the petition is filed, a judge will then appoint a committee of three people to evaluate the individual’s condition. This committee is usually comprised of at least one physician and two other health care professionals who have the specialized knowledge, training, or education to form an expert opinion about the specific type of incapacity the individual is suffering from;
- The judge will also appoint an attorney to represent the person alleged to be incapacitated; though that person may substitute his or her own attorney for the court-appointed attorney;
- The members of the committee examine the individual, which usually involves a physical examination, a mental health evaluation, and a functional assessment;
- Each member of the committee submits to the court a report containing his or her findings and conclusion
- If two of the three members of the committee conclude that the person is not in fact incapacitated, the judge will dismiss the petition.
- If, on the other hand, the majority of the committee determines that If the majority of the examining committee concludes that the person is unable to exercise certain rights, the court will schedule a hearing to determine whether the person is totally or partially incapacitated.
- If the person is found to be incapacitated in any respect, a guardian will then be appointed at the end of the hearing unless there are less restrictive alternatives available that could address the incapacity and protect the individual’s interests.
HOW WE HELP PROTECT THE VULNERABLE IN GUARDIANSHIP MATTERS
At Neill Griffin Marquis Osking, PLLC, our guardianship lawyers understand that seeking guardianship is not easy. When it comes to caring for those who are suffering from mental and physical disabilities, acknowledging that a loved one can no longer care for themselves can be emotional, especially if the loved one does not recognize the need and the effort is to help them. With compassion, patience, and understanding, we guide clients through every aspect of guardianship, ensuring that wards are protected and that guardians have the resources and knowledge they need.
Neill Griffin Marquis Osking, PLLC provides full-service and comprehensive representation in all Florida guardianship matters, including:
- Preparing and filing guardianship petitions
- Establishing incapacity
- Guardianship litigation
- Guardianship management
- Preparing accountings
- Investigating and addressing any guardian misconduct or mismanagement
- Terminating guardianships
CONTACT A ST. LUCIE COUNTY GUARDIANSHIP ATTORNEY
Guardianships raise plenty of emotional and practical issues, but they involve complicated legal, medical, and financial matters as well. The guardianship attorneys at our firm combine their legal knowledge with the personal care and attention necessary to effectively help families during a difficult time. If you know someone who resides in Fort Pierce, Port St. Lucie, or anywhere else within the St. Lucie, Indian River, or Martin County area who is in need of a guardian, call our Fort Pierce office 772-464-8200 to schedule a confidential consultation.
