03 Apr What is Florida Guardianship?

Do you or your aging loved ones in Florida have your advanced directives completed? Your advance directives can be created as a part of your estate plan, or on their own, and can include health care advance directives, living wills and HIPAA authorizations, and a durable power of attorney. These documents can ensure that, in a crisis, you will have chosen a decision maker who has the legal authority to act as you would for financial and health care decisions.

What happens when you do not create them? If you need a decision maker in the event of your incapacity and have not planned forward, your loved ones may need to go to court to be able to care for you. A Florida guardianship occurs when a circuit judge determines that a person lacks the capacity to manage his or her property, or attend to at least some of his or her essential health and safety requirements.

What does this mean to you? Let us share more information here. For example, a person cannot manage his or her property if he or she is unable to take the necessary actions to obtain, administer, and dispose of his or her real and personal property. It also may be necessary when a person cannot meet the essential requirements for health or safety. This means he or she cannot take the necessary actions to provide for his or her health care, food, shelter, clothing, personal hygiene, or other care needs without possibly causing serious and immediate physical injury or illness to occur.

When a petition for incapacity is filed on a person who may need guardianship, the circuit judge must first appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members consist of a psychologist, another physician, a registered nurse, nurse practitioner, a licensed social worker or other persons who by knowledge, skill, experience, training or education advise the court in the form of an expert opinion. If the examining committee decides that the person is not incapacitated in any respect, the circuit judge must dismiss the petition for incapacity. If the examining committee decides that the person is incapacitated in any respect, a hearing will be held by a circuit judge.

The person assumed to be incapacitated must be present at the hearing, unless this right is waived by the alleged incapacitated person or his or her attorney. Attendance may also be waived if good cause can be shown for the alleged incapacitated person’s absence. In each legal proceeding in which a guardian is appointed, the circuit judge must first determine whether the ward, prior to his or her incapacity, signed valid advance directives.

In addition to the information we shared above, advanced directives must be witnessed, written documents in which instructions are given by the proposed ward in which his or her desires are expressed concerning any aspect of his or her health care. If any advance directive exists, the court shall specify in its order of guardianship what authority, if any, the guardian shall exercise over, or instead of, the agent named in the advance directive.

We know this article may raise more questions than it answers. Our goal for each of our clients is that guardianship will never be necessary. Together, we can take proactive steps to ensure that you have the representation you need to plan forward with Florida estate planning. We encourage you not to wait to schedule a meeting with our firm on this, or any estate planning or elder law issue.

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