The estate planning process can be complicated. You want to make thorough plans well in advance to ensure that, in the event of your death, everything will be handled smoothly and your family won’t have to hassle with anything.
However, estate planning isn’t only necessary for death. It’s also important to make plans in case you are incapacitated due to an accident or medical issue and unable to make decisions on your own. This is where guardianship comes in.
Guardianship – also called conservatorship – is a legal proceeding where a guardian – also called a conservator – is appointed by the court to carry out the legal rights of an incapacitated person. In the Florida statutes, guardianship is governed by Chapter 744 and only applies to appointing a guardian for an incapacitated person and not a guardian for someone with developmental disabilities.
A guardian can be an individual person or institution – a non-profit organization or bank trust department – appointed by the court to care for an incapacitated person. An incapacitated person can also be called a ward and a guardian may take care of the ward’s assets.
What Does Being Incapacitated Mean?
The dictionary defines incapacitated as being deprived of strength or power; debilitated. While that definition is accurate, it doesn’t account for health or legal factors related to that incapacitation.
For estate planning purposes, an incapacitated person is an adult who has been legally determined to lack the ability to manage his or her property or to meet at least some of the necessary health and safety requirements for themselves.
In order for a guardianship to take place, the court first has to determine that an adult is actually incapacitated. To determine another person’s incapacity, someone can file a petition with the court, detailing the facts and information that leads them to believe that a person is incapacitated.
After the petition, the court will then form a committee with three members. The committee will usually have two physicians and then another expert by education, training, knowledge, or skill. At least one member of the committee must be knowledgeable about the specific type of incapacity described in the petition.
The committee will then conduct an examination of the incapacitated person. The examination most likely will include:
- A physical examination,
- A mental health examination, and
- A functional assessment.
Then, each committee member will submit a report of his or her findings to the court.
In addition to the committee, the court will also appoint an attorney to represent the alleged incapacitated person or they may choose to use their own attorney.
If a majority of the examining committee concludes that the incapacitated person is not incapacitated in any way, the judge will dismiss the petition. If the committee finds that the incapacitated person is unable to exercise certain rights, the court will schedule a hearing to determine total or partial incapacitation. And if a person is found to be incapacitated in any respect, a guardian will be appointed at the end of the hearing unless there are alternatives to guardianship, which can address the person’s incapacity.
What Does a Guardian Do?
A guardian can be an adult resident of Florida who is related or unrelated to the incapacitated person. In some cases, a relative who doesn’t live in Florida may also serve as a guardian. If someone has been convicted of a felony or can’t handle the duties of being a guardian, then they can’t be appointed as a guardian. There are also professional and public guardians available.
If a guardian is given authority over assets or property, the guardian will have to make an inventory, carefully invest it, use it for support, and file a detailed annual report to the court to account for everything used.
If a guardian is given authority over personal rights, then the guardian may have to provide medical, mental and personal care services along with determining the best living situation for the incapacitated person.
Guardianship isn’t the only option available for an incapacitated person. Under Florida law, the least restrictive alternative will be used to protect people unable to care for themselves or manage their own finances. If you want to make preparations for an incapacitation ahead of time and try to avoid guardianship while you’re competent, you can create a durable power of attorney, an advance health care directive, or a trust.
If you need help with estate planning and want to know more about guardianship and the other options available to you, contact a knowledgeable guardianship attorney today.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.