Allen Law, P.A. has extensive experience in handling all types of guardianships from inception through discharge. Our office is there to guide the guardian through every legal aspect of guardianship that may arise. Our attorneys are also experienced in high conflict cases where issues of exploitation, abuse or family conflict may be present. Allen Law, P.A. also has established relationships with a number of professional guardians, in the event that it appears that a professional guardian may be best suited to act.
Our office also has experience representing the alleged incapacitated person or potential ward, insuring that that all due process requirements are followed so that a person’s rights are only removed to the extent absolutely necessary.
Guardians, in most instances, are required to be represented by an attorney during the life of the guardianship. Allen Law, P.A. has significant experience in handling guardianship cases and is prepared to help navigate the court requirements, not only to establish the guardianship, but to provide advice and assistance with the duties and obligations of the guardian and insure that each act is for the benefit of or in the best interest of the Ward.
Guardianship for the Elderly or Disabled
The most common type of guardianship is one for individuals who once had capacity, but now lacks capacity, to make decisions and act on their own behalf. Generally, this lack of capacity develops due to infirmities of the aging, early onset health issues such as a stroke, or physical infirmities caused from an unexpected accident.
Florida is a least restrictive alternative state, meaning that a person who has planned in advance by executing a durable power of attorney, health care surrogate designation, and living will (often referred to as advance directives) can avoid the need for an appointed guardian, saving their estate and family thousands of dollars. Sometimes, however, individuals fail to plan and these documents have not been executed while the individual had capacity, or if they have, an issue arises that negates the agent’s ability to serve (whether by the agent’s choice or because of concerns that an agent is abusing their power and may be self-dealing) and the person no longer has capacity to execute new advance directives and name new agents.
Establishing guardianship in these cases is a two-tiered process. A Petition to Determine Incapacity is filed simultaneously with a Petition to Appoint a Guardian. Upon the filing of these petitions, the court appoints an attorney for the alleged incapacitated person (AIP) and a three person examining committee to meet with the AIP. The court appointed attorney’s role is to insure that the AIP receives due process, and to provide a defense, if necessary, to the removal of the some or all of the AIP’s constitutional rights. The examining committee is made up of medical, psychiatric or other geriatric care professionals that meet with the AIP and report back to the court their recommendation of which, if any, rights should be removed from the AIP. If a court determines after a hearing, in which the AIP has a right to attend, that some or all of the rights should be removed, then the Petition for Appointment of Guardian is taken up by the court at that same hearing. The AIP is now considered to be a Ward.
At the same hearing, the court takes up the Petition to Appoint a Guardian. Guardians can be appointed to be guardian of the person, or guardian of the property, or a plenary guardian (both of person and property). If not all rights are removed from the Ward, the guardianship is considered to be a limited guardianship. Not all rights removed from a Ward are exercisable by a guardian. These are considered non-delegable rights (such as the right to marry and the right to vote). A guardian who is appointed will exercise the delegable rights on behalf of the Ward, as provided by court order and Letters of Guardianship.
Guardians are fiduciaries and are typically bonded and file an Oath that they will carry out the duties pursuant to law, including filing annual reports with the court and seeking court approval to act in certain extraordinary instances. Allen Law, P.A. is here to assist the guardian in adhering to those duties and obligations and to assist in keeping the guardianship running as smoothly and efficiently as possible to help keep the cost of the guardianship down.
Minor Guardianships
The need for a minor guardianship may arise in the context of your child receiving assets in excess of $15,000, whether through inheritance, life insurance benefits, or as compensation from an accident they were injured in. Prior to receiving the funds, an estate or insurance company will ask for Letters of Guardianship showing the individual who will be responsible for holding the funds for the minor until the minor reaches 18 years of age. Typically, a parent will be the party who acts as the Guardian of the Minor Property, but in some instances, if a parent has poor credit or has suffered a felony conviction, they may not qualify to act as a guardian under Florida law. In those cases, we can help the client find or determine who can act as a suitable guardian for the minor.
Guardian Advocacy
Guardian Advocacy is a very specific type of guardianship for a niche group of individuals with development disabilities defined as “a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome, that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.” Fla. Stat. 393.063(9). Parents whose children meet this definition sometimes find that, despite being the child’s natural guardian, they can no longer act on their child’s behalf because the child has reached the age of 18. This type of guardianship establishes the parent as the legal guardian and insures that the parent can stay involved in the decision making for their child’s well-being. It further provides an avenue for a parent to nominate someone to act as guardian for the child if the parents are no longer able to act as the legal guardian or pass before their child. Additionally, this guardianship can also provide greater protection from exploitation.
This guardianship differs from other guardianships. Unlike guardianships for a disabled person who does not meet the narrow definition in section 393.063(9) of the Florida Statutes, this guardianship does not involve an examining committee. Only a simple form to be completed by the child’s doctor establishing the child’s diagnosis is required. And unlike other guardianships that requires attorney representation throughout the life of the guardianship, an attorney in a guardian advocacy only needs to continue serving as attorney of record for the guardian if the guardian so chooses or the court requires it based on the amount of property to be managed by the guardian or for other reasons.
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