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Is An Adult Guardianship Necessary?

Uncategorized Dec 1, 2020

Are you considering filing for guardianship over a loved one? Do you have an elderly parent or grandparent who is no longer able to care for himself or herself? Do you wish to file a petition for limited guardianship or a petition for plenary guardianship? Have you considered other options? Can a Miami guardianship lawyer help me to evaluate whether or not I should file a petition for guardianship?

Guardianships in Florida

At Pankauski Hauser Lazarus, we frequently encounter family members who are concerned about elderly relatives and wish to file guardianships. However, it is important to consider all of the facts prior to petitioning. Is the person you are concerned about incapacitated? Does he or she suffer from dementia or Alzheimer’s? Does the person go to the grocery store and bank on his or her own or require assistance? Is the person taking care of him or herself?

Also, it is important to consider the costs of filing a guardianship. Guardianship litigation can become pricy, especially if the guardianship is contested. Will your brother or sister fight you for guardianship of your mom?

Chapter 744

Miami guardianship lawyers know that guardianship law is governed by Chapter 744 of the Florida Statutes. If you are involved in guardianship litigation in Miami, or anywhere in Florida, you should refer to this chapter. An experienced Florida guardianship attorney can help explain what the statutes mean, and also help you to understand your options.

Lesser Restrictive Alternatives

Miami guardianship courts take guardianship proceedings seriously because these proceedings can result in a ward’s rights being taken away. The “ward” is the person subject to the guardianship who has been determined to be incompetent or incapacitated.

It is important to understand that, even if your elderly mom or dad is determined to be incapacitated by a probate judge, a guardian might not be appointed if a lesser restrictive alternative exists. If there is a lesser restrictive alternative to the Florida guardianship, it must adequately address the incapacitated person’s needs. For example, a POA or revocable living trust may be sufficient.

Estate Planning Attorneys and Lesser Restrictive Alternatives

If you consult with a Miami estate planning attorney, you can decide for yourself who will take care of you and your finances if you are to one day become incapacitated.

For example, if you create a revocable living trust, your successor trustee will be able to safeguard your money and property. If you execute a power of attorney (POA) document, your POA will be able to make business and/or life decisions on your behalf. If you have healthcare documents, such as a living will, medical power of attorney, or health care proxy, your health care representative of choice will be able to make decisions regarding your health.

It is, however, important to keep in mind that some estate planning documents do provide only limited authority. Therefore, it is up to a Florida judge to decide whether or not a particular POA or living trust is a sufficient lesser restrictive alternative to a guardianship.

Guardianship Proceedings in Florida

A March 6, 2020 Fourth DCA opinion, Erlandsson v. Guardianship of Elandsson, is a great example of a Florida guardianship proceeding. Here, a petition for limited guardianship was filed by two parents seeking to remove certain rights from their daughter. They believed their daughter was in need of a guardianship because she was not attending to basic psychiatric needs and was unable to manage her own finances.

If you think that someone is in need of a guardianship, or are involved in a current Florida guardianship case, call (561)279-6344 ext.101 for a FREE consultation.