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12/20/12 It's The Law: Guardianship Explained

It's The Law

Guardianship Explained

(12/20/12)

Question:

I have heard about court appointed guardians, but do not know what that means. Can you explain?

Answer:

A guardian is a person appointed by the court to handle a ward's person or property, or both. A guardian is generally appointed because the ward suffers from some incapacity.

Incapacity is not the equivalent of disability. Statutes define disability for such purposes as worker's compensation, access to public facilities and housing. Incapacity is the test for guardianship purposes. Florida statutes define an incapacitated person as someone who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of that person. If a guardian is appointed, the guardian assumes control of decision making with respect to the area of the guardian's authority.

Florida statutes confirm that parents are jointly the natural guardians of their own children during minority. If one parent dies, the surviving parent is the sole and natural guardian. If a child has a claim or cause of action for more than $15,000.00, the court must appoint a guardian for the minor before approving settlement. The statutes also mandate that a guardian be appointed to manage the settlement proceeds for the minor when the settlement exceeds $15,000.00.

Filing a petition to determine incapacity starts the guardianship process. The alleged incapacitated person, his or her attorney, and all next of kin identified in the petition must be served with the petition and notice of incapacity hearing. If the alleged incapacitated person does not have an attorney, the court must appoint an attorney for representation.

Within five days after a petition for determination of incapacity has been filed, the court must appoint a three-member examining committee. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, another physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology, or other person who by knowledge, skill, experience, training or education may in the opinion of the court advise the court in the form of an expert opinion. One of the three members must have knowledge of the type of incapacity alleged in the petition. The attending or family physician may not be appointed to the committee, unless good cause is shown.

If the court determines a person is incapacitated, a guardian will be appointed. The guardian may exercise only those rights that have been removed from the ward and delegated to the guardian. The guardian must file an initial guardianship report and an annual guardianship report with the court. If assets or finances are involved, the court will audit the reports.

Appointment of a guardian terminates previously granted powers of attorney and delegations of health care decision making authority to the extent the guardian is granted authority in those areas. That is consistent with the concept that a petition for guardianship is generally pursued only when it appears an incapacitated person is not being properly cared for.

Guardianship can be terminated if the incapacity ends. A suggestion of capacity must be filed with the court in which the guardianship is pending. If incapacity is other than minority, the court immediately appoints a physician to examine the ward. The physician must file a report with the court within twenty days of appointment. The court is also required to serve notice of the filing of suggestion of capacity to the ward, the guardian, the attorney for the ward, if any, and any other interested persons designated by the court. The recipients have twenty days after service of the notice to file objections to the suggestion of capacity. If no objection is filed and the medical examination suggests that full restoration is appropriate, the court orders restoration. Otherwise, a hearing is held.

Guardianships can be as broad or narrow as the court deems appropriate. They can be as simple as managing a single fund or as complex as managing both the person and all assets of the ward. In its broadest form, a guardianship designates someone to manage the ward's entire life.

Guardianships not only remove decision making power from an individual, but are also rather cumbersome and expensive. Court filings are required. The guardian is entitled to a fee. The guardian's attorney is entitled to a fee. An attorney appointed to represent the ward is entitled to a fee. There are filing fees and often accounting fees. The court charges an audit fee. These proceedings do not come cheap.

Rather than leaving a guardianship appointment to the complete discretion of the court, there are opportunities to preplan. Parents may designate a guardian for their children in the event both die or are unable to take care of a minor child. Florida statutes also provide a procedure by which individuals may designate a pre-need guardian. This area can be an important, but sometimes overlooked, aspect of estate planning.

Guardianships are a significant intrusion by the courts and third parties and should not be taken lightly. If you are involved in a guardianship proceeding, good legal advice is essential.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorris.com.

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