What is Guardianship?

What is Guardianship? When a person is no longer able to care for themselves, whether that be for physical or mental deficits, it may be necessary to seek a guardian to protect and advocate for them. In Florida, a person may be deemed incapacitated if they are impaired to the point that they are unable to manage their property and make safe decisions regarding their health and safety. In Florida, if a person is deemed incapacitated, the Court may appoint a guardian to act on their behalf. What Rights Does a Person Lose When They are Deemed Incapacitated? Once a person is deemed incapacitated, they lose the right to make decisions regarding the powers delegated to their guardian. The Court can delegate the powers to make decisions regarding the incapacitated person’s property, as well as the power to make decisions regarding their health and safety. However, it is important to remember that an adjudication of incapacity should not be equated with a finding of a complete loss of all rights. For instance, an incapacitated person still maintains the right to a lawyer, the right to due process, the right to be present at hearings concerning them, and the right to appeal. How Does a Court Determine if a Person is Incapacitated? The first step in determining incapacity is filing a petition with the court in the county where the person resides. Once the petition is filed, the Court will appoint an examining committee consisting of at least three members, one of whom must be a physician. The examining committee will evaluate the person and file their report with the Court. The Court will hold a hearing to determine if the person is indeed incapacitated. Who Can Serve as a Guardian? As a general rule, any individual who is 18 years or older, resides in Florida, and has never been convicted of a felony can serve as a guardian. However, preference will be given to family members. Attorneys and trust companies can also serve as guardians. To become a guardian, one must complete the required training course. What Does a Guardian Do? A guardian is a person appointed by the court to care for an incapacitated person. The guardian will be responsible for making decisions on behalf of the incapacitated person. The court can grant the guardian the power to make decisions about the incapacitated person’s property or the power to make decisions about the incapacitated person’s health and safety, or both. A guardian must act in the best interest of the incapacitated person and must follow the court’s orders. How Can Donohue & Donohue, P.C. Help? Guardianship issues can be complex and confusing. If you need assistance with a guardianship matter, Donohue & Donohue, P.C. can help. We have experience representing clients in guardianship matters throughout the state of Florida. Contact us today to schedule a consultation.