Law Offices of James W. Mallonee, P.A.
Port Charlotte 941-206-2223
Venice 941-207-2223
Helping individuals & families across Florida with their legal matters since 2005

Guardianship – General Overview

In many instances, individuals feel as if they have lost all hope to a meaningful life when a court of law adjudicates him or her incapacitated and appoints a person to be their guardian. Nothing could be further from the truth. The role that a guardian plays in someone’s life is that of a personal assistant, protector and confidant. This article is the first of many that will discuss Florida’s Guardianship Law. The purpose of this article is to give you a general overview of why guardianship laws are in place and the procedures that the law requires prior to appointing a guardian over an alleged incapacitated person.

To begin any guardianship proceeding, a petition to determine incapacity of a person must be filed with the circuit court where the alleged incapacitated person (the “Ward”) resides or is found. That petition is followed by another for the appointment of a guardian. In most cases, the person filing the petition to determine incapacity and appointment of a guardian is a family member who is under the belief that their parent is vulnerable to being manipulated into conveying their property to others. In other cases, it is because a family member is under the belief that their parent is unable to maintain their medications, health or other personal needs in the care of their person. Although I reference a parent, it is not always the parent who is subjected to guardianship.

Once the petitions have been filed, the court will order the appointment of three persons to serve as examining committee members. At least one of the examining committee members will be a psychiatrist and the others must be either a psychologist, gerontologist, psychiatrist, physician, registered nurse, nurse practitioner, licensed social worker, persons with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion be able to advise the court in the form of an expert opinion.

The purpose of the examining committee is to meet one-on-one with the alleged incapacitated person to determine whether he or she has the ability to exercise the following rights:

  • To marry;
  • To vote;
  • To personally apply for government benefits;
  • To have a driver’s license;
  • To travel;
  • To seek or retain employment;
  • To contract;
  • To sue and defend lawsuits;
  • To apply for government benefits;
  • To manage property or to make any gift or disposition of property;
  • To determine his or her residence;
  • To consent to medical and mental health treatment; and,
  • To make decisions about his or her social environment or other social aspects of his or her life.

To determine a person’s ability to exercise the above stated rights, the examining committee will perform a comprehensive examination consisting of:

  1. A physical examination;
  2. A mental health examination; and
  3. A functional assessment of the person’s mental and physical capabilities.

Upon completion of the examination by the examining committee, each member of the committee will then prepare a report that is submitted to the court. The reports are generally used as evidence in determining whether a person is incapacitated and what rights the Ward is incapable of exercising. The report generally contains the following:

  1. A diagnosis, prognosis, and recommended course of treatment;
  2. An evaluation of the alleged incapacitated person’s ability to retain her or his rights;
  3. The results of the comprehensive examination and the committee member’s assessment of information provided by the attending or family physician, if any; and,
  4. A description of any matters or rights to which the Ward lacks the capacity to exercise.

While the examining committee is meeting with the alleged incapacitated person and preparing their reports, the court will appoint a lawyer to represent the Ward. The lawyer assumes the title of Elisor and will meet with the Ward to discuss the petitions and ascertain any evidence to counter a suggestion that a finding of incapacity is warranted by the examining committee reports. In addition, the Elisor will begin an analysis of whether the person who petitioned for appointment as Guardian is the best person for such task.

Once the examining committee reports have been submitted to the court and an Elisor appointed, the parties will convene at a court hearing where evidence will be presented to the judge who will determine if the Ward is incapacitated (based on the evidence presented), and if so, whether there exists alternatives to ordering a guardianship over a person.

On a positive thought, the court will not simply order a guardianship over a person or their property without reviewing the legislature’s comments concerning the involuntary removal of a persons rights. The legislature, with regard to the imposition of a guardianship, recognizes that every individual has unique needs and differing abilities. That the purpose of the guardianship law is to promote the public welfare by establishing a system of checks and balances that permits incapacitated persons to participate as fully as possible in all decisions affecting him or her. Furthermore, the guardianship laws are designed to assist alleged incapacitated persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible.

However, if the court determines that there are no other alternatives to guardianship, it is likely that it will adjudicate the Ward to be incapacitated and then proceed to appoint a guardian.

The loss of a person’s rights to a guardian may be considered devastating, but another way to view a guardianship is that the person adjudicated incapacitated will now have access to an assistant who can run errands, manage the Ward’s property, write checks on the Ward’s behalf, pay bills and share in the making of sound decisions with the Ward. You should not view a guardian as a person who is attempting to steal your funds or the remaining years of your life.

Next week we’ll examine who can serve as a guardian and what steps can you take prevent the possibility of the appointment of a guardian.

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