When an individual no longer has the mental capacity to manage his or her financial affairs or to make personal decisions relating to healthcare and residence, a guardianship may be necessary. A guardianship may also be necessary if you have concerns that a loved one is being financially exploited or physically abused. Guardianship is the legal process of petitioning the court to appoint a guardian to make decisions on behalf of the alleged incapacitated person (AIP). Once appointed, the guardian stands in the shoes of the individual and is in charge of handling the incapacitated person’s personal and/or financial affairs. The process begins with a court proceeding brought by a petitioner who may be concerned about an elderly relative, friend or neighbor who doesn’t appear to be caring for himself or herself properly. The petitioner may want to be the guardian of the person they are concerned about, or the petitioner may want to have a professional guardian appointed.
A guardianship possibly may be avoided if a durable power of attorney and designation of healthcare surrogate were previously executed. However, there are still numerous situations, when existing documents are in place, a guardianship may still be necessary to properly protect and provide for your loved one. That is why is important to review your situation with an elder law attorney experienced in the many nuances of guardianship to help you know what legal steps need to be taken and when such steps should be taken.
Under Florida law a person seeking appointment as a guardian must be represented by an attorney. The guardianship process consists of numerous petitions and orders that must be drafted and filed with the court. In addition, the petitioner will be required to attend hearings related to the guardianship. With the commencement of the court proceedings comes the appointment of a Court Appointed Attorney for the alleged incapacitated person (AIP). The Court Appointed Attorney represents the AIP in the incapacity hearing to ensure that his/her due process rights are protected. The Court will also appoint three examining committee members to complete a formal assessment of the AIP. These examining committee members will submit their recommendations to the Court.
Attorney’s fees and costs are charged on an hourly basis and many times these expenses can be paid from the incapacitated person’s assets, after court approval is secured. A Guardian is a fiduciary, meaning that a person wanting to become the guardian of another person must not have any felony convictions or crimes of dishonesty. Once appointed there are many duties the guardian has to the court. These duties include, but are not limited to, completing and filing an Initial Plan and Verified Inventory, completing the required eight (8) hour guardianship course, completing and filing an Annual Plan of the Person and an Annual Accounting. In addition, there are certain actions for which a guardian must secure prior court approval before taking action, such as selling real property belonging to the incapacitated person. At The Elder Law Center of Kirson & Fuller our experienced guardianship professionals are here to answer all your questions and concerns and to guide you through the guardianship process, from appointment through the ongoing administration of the guardianship. We serve areas of Orlando, Altamonte Springs, Winter Park, Casselberry, Winter Springs, Villages, Lake Mary.
Sometimes, the person who is being considered for a guardianship is not pleased with the situation, and always has the right to utilize the court appointed attorney or to hire his/her own attorney in the guardianship proceedings.
If a less restrictive alternative is available, which can effectively and safely meet the needs of the individual, a guardianship may be avoided. Meeting with an experienced guardianship attorney will help you deter to determine which legal option is the best option for your loved one.
At the Orlando Elder Law Center of Kirson & Fuller we are well versed not only in the legal issues involved in a guardianship proceeding, but also the emotional elements of the guardianship process. Our trained professionals are here to guide you through this often difficult and overwhelming process.