Guardianship
How to Become Guardian of Your Vulnerable Parents or Child
If you are a family member of an aging parent, sibling or child that you suspect or know needs a legal guardian, there are a few legal matters and terms you need to become familiar with and understand.
Firstly, in Florida, a person can be appointed as a Guardian in one of three ways:
• Guardian of the Person;
• Guardian of the Property; or
• Guardian of the Person and Property.
Secondly, to become a legal Guardian of a person and/or their property, certain eligibility criteria must be met. This criterion usually begins with some form of determination of the “Alleged Incapacitated Person’s” (AIP) mental capacity.
During an “Incapacity Proceeding”, an attorney for the AIP will be appointed by the Court. The Court will also appoint a three-member Examining Committee. Each member of the Examining Committee will individually meet with and examine the AIP. The Committee Member will write a report and submit it to the court, along with their testimony and findings of the AIP’s mental capacity. In their report, the committee member will either recommend a “Plenary Guardianship” for the AIP, which means the committee member has found the individual lacks the mental capacity to make decisions in their best interest, and therefore, no such rights should be retained by the individual; or, the committee member finds the AIP has some mental capacity and a “Limited Guardianship” is recommended, which allows for the AIP to maintain some of their rights.
Once an AIP is legally declared incapacitated, they are recognized as a “Ward”. A Guardian is then appointed to the Ward, establishing a “Guardianship”. The individual appointed as the “Guardian of the Person” will have legal authority to make decisions for the Ward, which can include such decisions as to where the Ward will reside.
When a person is appointed as “Guardian of the Ward’s Property”, they are responsible for making financial decisions that are in the best interest of the Ward. Many of these decisions will have to be court approved and an annual accounting of the Ward’s finances must be filed with the court.
An individual who has been appointed as “Guardian of the Person and Property”, is responsible for the person and the person’s finances. Most people seeking a Guardianship are appointed as Guardian of the Person and Property.
There are additional requirements for those seeking to become a legal Guardian, such as they must be over 18 years of age. They must also be able to meet Florida’s statutory requirements, including passing a criminal background check. Unless the individual seeking to be a Guardian is an immediate family member, they must reside in the same jurisdiction of the individual. Additionally, the financial history and stability of the person seeking to be a Guardian will be evaluated by the Court.
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- BRENDA, ALTAMONTE SPRINGS, FL
Guardianship Litigation
Unfortunately, many aging individuals living apart from family members and relatives are taken advantage of by neighbors, so called friends and too often, by their own children. These individuals may have convinced the vulnerable person to give them a Power of Attorney (POA). With a POA, an individual can take control of the vulnerable person’s assets without going through the process of becoming a legal guardian. This scenario is especially true of the aging population who have become widows or widowers and have accumulated assets. Quite often, they don’t want to worry family members and they become easy targets for those who seek to prey on vulnerable individual’s assets.
When a squabble takes place over who will take care of the individual and their finances, legal guardianship will then be determined at trial. The Court may appoint a Professional Guardian in lieu of a family member or vested party. A Professional Guardian is someone who is certified, licensed and bonded by the State in order to be eligible to be court appointed to protect the person, property and best interest of the Ward, who has been deemed incapacitated by a court of law.
FACT: If a vulnerable adult has a Power of Attorney (POA) in place, the Court can supersede the POA with the appointment of a legal Guardian.