A guardianship is a way to protect the health, welfare, and property of a loved one who is incapable of self-care due to physical or intellectual limitations. For example, your loved one may need a guardian of the person to ensure that he or she has adequate housing, nutrition, or medical treatment. Or, if your loved one is unable to responsibly manage his or her finances, a guardian of the property may be needed. Guardians can be appointed both for adults and for minors.
Establishing a guardianship for an adult usually is a two-step process. First, an examining committee appointed by the court must determine that your loved one, known as the Ward, is partially or totally incapacitated. Then, the Court must appoint a guardian of the person, a guardian of the property, or a guardian of the person and property. This can take anywhere from a few weeks to a few months.
Emergency Temporary Guardianship
If the Ward is in crisis and a guardian is needed immediately, the Court may approve an emergency temporary guardianship. An emergency temporary guardian is appointed for a period of 90 days. In some circumstances, an emergency temporary guardianship can be extended for an additional 90 days. Obtaining an emergency temporary guardianship can take as little as a week or as long as several weeks.
Guardianship of a Minor
Establishing a guardianship for a minor does not require a finding of incapacity. A minor’s parents are considered the natural guardians of his or her person, but a guardian of the property may need to be appointed if the minor acquires significant assets through an inheritance, insurance settlement, or from another source.
If you think you may someday need assistance with personal or financial care, you can designate a spouse, relative, or friend to be your pre-need guardian. This can be done as part of your estate planning process. The Court will usually follow your wishes unless there is a legal reason that the person you have designated cannot be appointed.
A guardian advocacy is similar to a guardianship, but it does not require a finding of incapacity and is only available in three situations. First, the Court may appoint a Guardian Advocate for a person with a developmental disability. Second, the Court may appoint a Guardian Advocate for a person with a mentally ill person who is unable to give informed consent while subject to involuntary placement in a treatment facility. Third, the Court may appoint a Guardian Advocate for a drug dependent newborn.
Guardian advocacy cases most often involve individuals with developmental disabilities. The definition of a developmental disability is fairly narrow under Florida law. An individual may qualify under this provision for appointment of a guardian advocate if her or she meets three criteria:
1. A disorder or syndrome attributable to retardation, cerebral palsy, autism, spina bifida or Prader-Willi syndrome;
2. Manifestation of the disorder or syndrome before the age of 18; and
3. Evidence that the disorder or syndrome constitutes a substantial handicap that can reasonably be expected to continue indefinitely.
A person seeking appointment as a guardian advocate must submit an application to the Court, along with a Petition for Appointment. In addition, he or she must obtain a background check from the Florida Department of Law Enforcement and provide the Court with a credit score. In addition, the Ward’s attending physician must sign a statement confirming that the Ward has a developmental disability and recommending appointment of a guardian advocate.
HOW WE CAN HELP
The need for a guardian or guardian advocate often arises under difficult and stressful circumstances, when navigating the complexities of a court proceeding is the last thing you need. We can make the process easier for all concerned. Attorney Marynelle Hardee can assist you throughout the guardianship or guardian advocacy process, from establishing the guardianship to filing the annual accountings and reports that are required by Florida law. She also can help you designate a pre-need guardian or determine whether your loved one’s needs can be met with less restrictive alternatives, such as such as joint ownership of assets, powers of attorney, designations of health care surrogates, and living trusts.