What is a Florida guardianship? When is a guardianship necessary? Can a Palm Beach guardianship help to protect my mother who has dementia? Guardianships are not the only means of helping an incapacitated person in the State of Florida. In fact, Florida guardianship law actually requires the use of the least restrictive alternative to protect persons incapable of caring for themselves and managing their financial affairs whenever possible. What does this mean? What is an acceptable less restrictive alternative to a guardianship?
Section 744.331(6)(b) provides:
- When an order determines that a person is incapable of exercising delegable rights, the court must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person.
- A guardian must be appointed to exercise the incapacitated person’s delegable rights unless the court finds there is an alternative.
- A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person.
What does this mean for your family or loved ones in Boca Raton who may need legal assistance? West Palm Beach Probate litigation attorneys will tell you that if a person creates an advanced health care directive, a durable power of attorney, or a trust, while competent, he or she may not require a guardian in the event of incapacity.
As you can see from the other Florida Probate Law blog posts on this site, guardianship Ft. Lauderdale can be a useful tool, but is often an invasive process. Based upon the Section 744.331 and other sections of the Florida Guardianship Code:
- A Durable Power of Attorney, Trust Agreement, and Advanced Healthcare Directive in Florida should be considered to be less restrictive alternatives to the appointment of a Florida guardian.
- These Florida Probate tools can sufficiently address the problems of the alleged incapacitated person, in whole or in part.
- A court should recognize that using these instruments in lieu of a guardianship provides the alleged incapacitated person with the highest level of participation in their affairs as well as minimizing the intrusion to their privacy.
Florida Statute 744.331 is probably the single most important guardianship law or statute regarding incapacity. Why?
- 744.331 is your legal roadmap, telling the parties, and the court, just about everything they need to know, and do, surrounding a finding of incapacity. Here is a link to Florida Guardianship Law 744.331: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0744/Sections/0744.331.html
You may also want to read our blog, Why 744.331 Verified Statements Give Florida Guardianship Lawyers Heartburn.