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Guardianship
Incapacity and Guardianship
Guardianship is a legal arrangement in Florida designed to protect individuals who are unable to care for themselves due to age, disability, or incapacity. This process allows the court to appoint a guardian who will make decisions on behalf of the alleged incapacitated person, or AIP. The guardian is responsible for managing the ward’s personal affairs, including healthcare decisions, financial management, and daily living activities, ensuring that the AIP’s needs are met and their rights are upheld.
To establish a guardianship a petition must be filed with the court detailing the reasons the guardianship is needed and the proposed guardian's qualifications. The court will conduct an investigation to assess the ward’s condition, by appointing a three member examining committee to evaluate the AIP to determine whether guardianship is necessary. During this process, the court will also appoint an attorney to represent the AIP. The court will then hold a hearing where interested parties can present their views. If the court finds that guardianship is appropriate, the Judge will issue an order determining the level of incapacity of the AIP and an order appointing the guardian and outlining their powers and responsibilities.
Guardianship is intended to be a protective measure, but it also involves significant legal responsibilities. Guardians must act in the best interest of their wards and are required to provide regular reports to the court about the ward’s condition and financial status. While guardianship can provide essential support for those who cannot care for themselves, it may not be appropriate in all circumstances.
Guardianship is designed to be a last resort and it is highly favored to use all available "less restrictive alternatives" first. Less restrictive alternatives include power of attorney, advance healthcare directives, representative payee arrangements, supported decision-making, trusts, and more. Unfortunately, these less restrictive alternatives are not always available. It is crucial to approach it thoughtfully and with the guidance of an experienced guardianship attorney to navigate the legal requirements and ensure that the rights of the AIP are preserved.
Guardian Advocacy
Guardian Advocacy is a special type of guardianship designed for individuals with developmental disabilities who need assistance in decision-making but do not require a full guardianship. This option allows an appointed guardian advocate to help the individual manage their personal and financial affairs while preserving as much independence as possible. Guardian Advocacy is often a preferred alternative for families who want to ensure their loved ones receive the necessary support without completely removing their rights.
Guardian Advocacy is established very similarly to a typical guardianship, except that no medical evaluations are necessary. Unlike traditional guardianship, which can be more extensive and intrusive, guardian advocacy focuses on promoting the individual’s autonomy while providing guidance and support tailored to their unique circumstances. This can include assistance with healthcare decisions, education, and daily living, allowing the individual to participate in their own life as much as possible.
In order to seek Guardian Advocacy however, the person must have a qualifying developmental disability. Developmental disabilities that typically qualify for Guardian Advocacy include intellectual disabilities, autism spectrum disorder, cerebral palsy, Down syndrome, and learning disabilities among others.
Once appointed, the Guardian Advocate has the same legal duty as standard guardian to act in the best interest of the individual. Consulting with an experienced guardianship attorney can help families navigate the Guardian Advocacy process, ensure it is the best option for the family, and that their loved ones receive the necessary support while maintaining their dignity and independence.
Guardian of Minor
Guardianship of a minor is sometimes needed to protect and care for children whose parents are unable to fulfill their parental duties due to various reasons, such as incapacity, illness, or death, or if the minor is set to receive a large settlement or inheritance. When dealing with guardianship over the property of a minor, this can be needed even if both of the minor's parents are alive and otherwise fulfilling their duties as a parent.
This guardianship is initiated the same way by filing a petition with the probate court detailing the reasons for seeking guardianship and the proposed guardian's qualifications. The court will review the petition and may require an investigation or hearing to assess the suitability of the proposed guardian and the needs of the child. If the court determines that guardianship is in the best interest of the minor, it will issue an order granting the guardian the legal authority to make decisions regarding the child's education, healthcare, and general upbringing, or having control over their assets.
Guardians of minors have the same the legal and moral obligation as other guardians to act in the child’s best interests. They are also responsible for maintaining regular communication with the court, providing updates on the child's well-being, and adhering to any conditions set by the court. This guardianship arrangement can be temporary or permanent, depending on the specific circumstances of the child's situation. Working with an experienced guardianship attorney can help navigate the guardianship process, ensuring that the rights of the child and the guardian are protected.
