Guardianship is an expansive and flexible remedy in Florida that can serve a variety of purposes. Two things tend to spur aFlorida guardianship, a person may be judged incapacitated or a minor may receive assets in excess of $15,000. An incapacity hearing is typically actually two hearings. The first hearing will be focused on whether or not the person is incapacitated while the second is where the court will appoint a guardian.
INCAPACTITY:
Incapacity Hearing
- Legally incapacitated means a person is 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 such person.
- The court will appoint an examining committee composed of three professionals, usually a psychiatrist, psychologist, and a third professional to interview the person and file a report with the court.
- The court will also appoint an attorney to represent the person alleged to beincapacitated. Partial or total incapacity must be established by clear and convincing evidence.
Guardian Hearing
- Any resident of Florida past the age of eighteen may serve as guardian, assuming of course they themselves are competent.
- Non-residents are acceptable in the case of close family members which includes parents and adult children.
- Public guardians or private ones may be appointed at the discretion of the court.
- Public guardians such as banks are limited to the circumstances for example a bank can only be a guardian of an account or lock box, not an individual.
- The Court will take the wishes of the individual into account to the extent possible.
MINORS
- A “minor” is a person under 18 years of age whose disabilities of age have not been removed by marriage or otherwise. Fla. Stat. 744.102(13).
- During minority, the mother and father are the natural guardians of their own children, either natural or adopted.
- Settling claims on behalf of a minor is outlined in F.S. 744.401, 744.3025 and 744.387. It is important to note that the minor cannot consent to judgment as simply as an adult would be able to.
ALTERNATIVES
- Florida law specifies that guardianship should not be the first means to helping an incapacitated person.
- Florida law requires the use of less restrictive alternatives to protect persons incapable of caring for themselves and managing their financial affairs whenever possible.
- So, appointing a health care surrogate, creating a durable power of attorney, and a revocable living trust while competent, may keep a person from requiring a guardian in the event of incapacity.
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