Florida Guardianship Litigation Attorney
Few events in life are more distressing than watching your loved one descend into mental or physical incapacity to the extent that he can no longer manage his own affairs. Incapacity can develop slowly over a period of years, or it can happen suddenly in response to a catastrophic accident or illness. Either way, it is imperative that measures be taken to ensure the well-being of your loved one, while at the same time allowing him as much freedom and dignity as possible.
Guardianship matters are serious issues, and the well-being of your loved one could depend on two things — (i) your understanding of the options that are available to you, and (ii) the quality of the legal advice you receive. Whether your loved one is a disabled personor a minor child whose parents have died, this is something that you have absolutely got to get right. And making sure that things go as smoothly as possible is what we do here at Lorenzo Law.
Qualifications of a Guardian
In Florida, it is necessary to petition the courtto appoint a guardian for an adult. To be appointed guardian, you must meet the following qualifications:
- You must be at least 18 years old;
- You must never have been convicted of a felony; and
- You must be capable, in the opinion of the court, of carrying out the duties of a guardian.
You do not have to be a relative of the ward to serve as a guardian. Although the guardian who the court appointsdoes not have to be the same person as the person who files the guardianship petition, courts generally are inclined to appoint that person as long as he is qualified under Florida law. Unless a dispute erupts, that is — and family members often vigorously dispute a guardianship petition.
The Petition for Guardianship
To establish legal guardianship over an adult, you must file two petitions:
- A Petition to Determine Incapacity. This petition is not necessary if the proposed ward is a minor, because a minor child is presumed to be incapable of managing his own affairs unless he has been declared legally emancipated, which is rare.
- A Petition for Appointment of Guardian. This petition becomes relevant if and only if the proposed ward (the allegedly incapacitated person on whose behalf the guardianship petition is being filed) is declared legally incapacitated in response to the Petition to Determine Incapacity.
When the Petition for Appointment of Guardian is filed, an Application for Appointment of Guardian (nominating a specific person for guardianship) and an Oath of Guardian (in which the proposed guardian promises to faithfully perform his duties) must be fled at the same time.
The proposed ward must be represented by an attorney — and this is a requirement, not an option, under Florida law. The court will appoint an attorney for the proposed ward regardless of whether he can afford to pay an attorney. The purpose of this rule is to ensure that the proposed ward’s procedural rights are fully protected, since he will lose many of his rights to make his own decisions once the guardianship is established.
The Adjudication Process
Once the foregoing two petitions have been filed, the court will appoint an examining committee composed of three health care professionals, one of whom must be either a psychiatrist or a physician. Although the examining committee will advise the court on whether they believe a guardianship is needed, the court is not bound to follow their recommendation.
A hearing will be held within a few weeks of the initial filing of the guardianship petitions. If the examining committee recommends guardianship and the guardianship petition is unopposed, a positive decision on guardianship could be issued after a one-day hearing.. If the petition is opposed, the process could take considerably longer and the result could be uncertain.
Disputes Over Guardianship
Disputes often arise over both guardianship petitions and over the conduct of the guardianship once it has been established. A guardian is expected to exercise his duties with utmost care and good faith. If he fails to do so, he could be removed by the court. In addition, a personal injury or even a wrongful death lawsuit can be filed seeking money damages. In extreme cases, criminal charges could be filed.
If such a dispute does breaks out, please keep in mind that firm founder Jose Lorenzohas been named a National Academy of Trial Lawyers “Top 40 Under 40” trial lawyer, an award bestowed upon only 40 lawyers in each state — and he is ready to stand up and fight for justice.
Alternatives to Guardianship: Critical Estate Planning Documents
A formal guardianship is not the only option available to ensure the proper care of a disabled adult. With proper estate planning, you might be able to accomplish the purpose of guardianship without having to resort to the formal guardianship process. A complete estate plan should include, in addition to a last will and testament and any trust that you intend to create, the following documents that could impact your well-being should you ever become incapacitated:
A durable power of attorney: A power of attorney is a delegation of authority from a principal (the person who creates the power of attorney) to an agent (who is authorized by the power of attorney to make certain decisions on behalf of the principle and, in some cases, act in the name of the principal). A power of attorney is “durable” if it continues in effect even after your loved one has become incapacitated (mentally incompetent or unable to communicate her wishes). It can be drafted so that it does not go into effect until the principal becomes incapacitated.
There are two types of durable powers of attorney that are commonly used — the health carepower of attorney and the financial power of attorney. A health care power of attorney allows the agent to make health care decisions on behalf of the principal, while the financial power of attorney allows the agent to make financial decisions, including selling property and signing contracts in the name of the principal.
A living will: A living will is a document in which someone authorizes doctors to terminate life support systems or refrain from certain types of medical treatment in the event that he is terminally ill and unable to make his own decisions due to having become incapacitated.
Competent legal counsel is absolutely essential when drafting these documents, because a seemingly innocuous drafting error could cause major problems years down the road.
You Need an Experienced Guardianship Lawyer on Your Side
Jose Lorenzois a guardianship attorney who knows enough about the Florida guardianship system, and the individuals who operate it, to make sure that the best interests of the proposed ward are fully protected.
If you are considering filing a guardianship application, or if you are looking for an alternative to guardianship, contact Lorenzo Law immediately by calling us at (305) 999-5411, completing our online intake form, emailing us at [email protected] or visiting one of our offices in Coral Gables or Ft. Lauderdale. We serve clients from throughout the state of Florida.
Disclaimer: This web page was designed for informational purposes only, and was not intended to createan attorney-client relationship. For more specific legal advice, please consult with us directly.