The formal Florida guardianship process begins with the filing of a petition to determine another person's incapacity and for the appointment of a guardian for them. The Probate court then appoints an attorney to represent the person alleged to be incapacitated and a.committee of three members to evaluate the alleged incapacitated person and submit a report of their findings to the court.
Based upon these reports, the Probate Judge will find the individual to be: (i) totally incapacitated; (ii) partially incapacitated; or (iii) capacitated and not in need of a guardian. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are lesser restrictive alternatives (Power of Attorney, Health Care Surrogate Designation and/or Revocable Trust) to guardianship which adequately address the person’s incapacity.
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Guardianship litigation includes disputes among family members or other interested persons involved in the life of an elderly or vulnerable adult. Contested guardianship cases include (i) petitioning for the appointment of a guardian, (ii) opposing the appointment of a guardian, (iii) seeking the removal of a guardian because of financial abuse, emotional abuse, or (iv) failure to properly care for the incapacitated individual ("Ward"). In many situations it is possible to recover damages from Guardians who have hurt the Ward.
A guardianship proceeding may also be utilized as a tool to prevent exploitation of the elderly or interfere with an existing estate plan. The commencement of a Florida Guardianship proceeding can interfere with an elderly individual's best laid plans (existing Power of Attorney, Health Care Surrogate and even Living Will) by having a nominated individual removed and a third party placed in charge of these decisions.
With a disabled child/adult the Florida guardianship process is very different. Many people mistakenly assume that because their child has a disability they are automatically the child's legal Guardian. However, every person over the age of eighteen is presumed to have the legal rights of an adult no matter what their abilities. In Florida, a person that is 18 years old or older is considered to be competent and have all their legal rights, until a court determines otherwise. Even if the person has very limited abilities and has a history of making poor choices, they are still legally able to make all decisions for themselves. Only a court can take away a person's right. In order to make decisions on their behalf, the parent or family member must petition the Probate court to be appointed as their "Guardian Advocate."
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Marc J. Soss, Attorney at Law | (941) 928-0310