Miami Guardianship Attorney

Legal guardianships were created for two reasons — to provide for the care of children when their parents are dead or unable to care for them, and (ii) to provide for the care of incapacitated adults. In the latter instance, Florida is particularly vulnerable because of its status as a retirement haven and its consequently high number of elderly people.

According to the state Department of Elder Affairs (DOEA), Florida is home to more senior citizens than any other state in the union. More than a third of these residents suffer from some sort of disability, and nearly one in five requires assistance with the basic activities of daily living such as bathing and dressing. Florida guardianship law is designed to protect the rights and interest of its most vulnerable citizens.

Guardianship of Minor Children

Under Florida law, a minor child is required to have a parent or guardian to manage his or her affairs, except in rare cases of the legal emancipation of certain teenagers. Providing for a guardian in case of the death of the children is a basic part of estate planning, and a guardian (typically a family member) is often named in a decedent’s last will and testament.

Generally, a guardian is responsible for making life decisions for the child with respect to education, medical treatment, living arrangements, social life, etc. If the child stands to inherit property with a value in excess of $15,000 (or to receive the equivalent amount in insurance proceeds or a lawsuit settlement), however, the court will appoint a “guardian of the property” to manage the child’s financial affairs.

Ultimately, the court appoints the guardian under these circumstances, although the decedent’s wishes as expressed in the last will and testament are respected more often than not. A child guardianship ends when the child reaches 18 years of age, although another type of guardianship is possible in cases where the child reaches 18 and is mentally or physically disabled.

Incapacity and Adult Guardianship

A guardian may be appointed for an incapacitated person, although this is not the only legal option. The incapacity may be either physical or mental — someone suffering from Alzheimer’s disease, a mentally retarded adult, someone unable to communicate their wishes, or someone physically unable to care for their basic needs are all examples of people for whom a guardian might be appointed. The incapacitated person is known as the ward.

Incapacity Hearing

A Florida incapacity hearing occurs only after an examining committee has first determined that the proposed ward is incompetent. Even with this determination, a permanent guardian can be appointed for an incapacitated individual only after he or she is declared incapacitated by a court after a formal adversarial hearing at which the proposed ward is represented by legal counsel. At the hearing, any interested person can offer evidence of capacity or incapacity.

Adult Guardianship Proceedings

Adult guardianship proceedings begin only after the proposed ward is declared incapacitated by a court. Since guardianship is based on state law, the laws governing a Miami guardianship are no different that the laws governing a Florida guardianship. A court may appoint a guardian of the person to make personal decisions for the ward, a guardian of the property to make financial decisions for the ward, appoint a plenary guardian to undertake both responsibilities, or deny te guardianship petition altogether.

Our Practice Areas

At Lorenzo Law, guardianship law is not all we do. Our firm handles cases in the following areas, among others:

Probate Administration
Estate Planning
Estate Administration
Trust litigation
Personal Injury

Frequently Asked Questions (FAQs)

What qualifications are required of a guardian?

To serve as a guardian in Florida, you must be:

at least 18 years old;
Never convicted of a felony; and
Mentally and physically competent to carry out your duties as a guardian .

Possessing these two attributes doesn’t guarantee that you will be appointed guardian, however, especially if there is more than one candidate. The court will give weight to the preference of the proposed ward, but is not bound by it.

Which rights cannot be transferred to a guardian?

Some rights are considered inalienable, which means that they cannot be taken away, even from an incapacitated person. Among these rights are:

The right to a be represented by a lawyer;
The right to access to the court system;
The right to freedom from abuse;
The right to the maximum amount of independence that is practical under the circumstances; and
The right to be treated with dignity and respect.

What are the continuing obligations of an adult guardian?

Once you are appointed guardian, you must:

Obtain a surety bond in the amount determined by the court;
File an inventory of the ward’s property (if you are appointed guardian of the property); and
File an annual accounting each year.

What is a limited guardian?

A limited guardian is someone whom a court appoints to perform something less than the full range of traditional guardianship functions. The purpose of appointing a limited guardian instead of a full guardian is to allow the incapacitated person as much independence as possible under the circumstances. The court my specifically list what the guardian can and cannot do.

Are there any less restrictive alternatives to an adult guardianship?

Yes, and Florida law requires them to be used if the proposed ward’s condition justifies it and if arrangements had already been made before he or she became incompetent. Less restrictive options include an advance healthcare directive, a durable power of attorney and a revocable living trust, among other options.

Decisive Action is What Makes it Happen

If you require the services of a guardianship attorney, then you need to contact us as soon as possible. We are well familiar with guardianship proceedings in Florida in general, and the Miami-Dade area in particular. We will do more than just guide you through the procedure, however. If push comes to shove and a dispute arises, we are ready to “duke it out” in court by relying on our extensive trial experience.

To set up a free consultation, call us at (305) 999-5411, fill out our online contact form, email us at jml@joselorenzolaw.comor visit one of our offices at Coral Gables and Fort Lauderdale. Our law firm serves clients in Miami-Dade, Fort Lauderdale, Coral Gables as well as all over South Florida and throughout the state.