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 – Is It Avoidable?

The Florida Legislature created a separate chapter of statutes to assist in the protection of persons who cannot (because of infirmity, age, economics or health) manage their lives without being vulnerable to others. The chapter is titled Guardianship.

The adjudication of guardianship against a person is in essence the delegation of certain rights to a third party. Those rights are (in general) the right to contract, manage property, determine where to live, to sue and defend lawsuits, marry, vote, and maintain a driver’s license. The issue that usually arises is what can be done to avoid a loss these rights.

The guardianship statutes provide a means to avoid guardianship provided that a vulnerable person has alternatives in place to protect their vulnerability. Generally speaking, if a person has a Trust, Durable Power of Attorney (“DPOA”) and Health Care Surrogate (advanced directives), a guardian may not need to be appointed. The fact that a person has a Trust, DPOA or Health Care Surrogate in place does not imply that a person will not be adjudicated incapacitated. The legislature has given the Court the flexibility to look at the overall picture of an incapacitated person to determine if the appointment of a guardian would be better than to rely of the actions of a Trustee, Attorney in Fact or Health Care Delegate.

Chapter 744 of Florida’s statutes provides that unless an interested person can establish that a Trust and Durable Power of Attorney is invalid, the Court is to consider such documents as an alternative to incapacity or the appointment of a guardian. As an alternative, the Court can make a reasonable decision which (if any) rights should be removed from a person and delegated to a third party. In addition, the legislature put in place a means to require the Court to rule on the validity of a person’s Trust and Durable Power of Attorney and if such documents do address the vulnerability of a person, then the Court can determine if there is a need to continue the delegation of a person’s rights to a third person (guardian).

Chapter 744 of Florida’s statutes also provides a mechanism of reviewing a person’s advanced directives on health care decisions. The statutes suggest to the Court that a person’s Health Care Directives should not be changed unless the Court specifically finds that it is in the person’s best interest that a third party (the guardian) take control of the health needs of the incapacitated person.

Is guardianship right for you? In some situations the appointment of guardian is unnecessary because least restrictive alternatives were put in place by a person avoid the expense and traumatic experience a person goes through when forced into Court to defend keeping their rights. All too often the defense of a person’s rights gets lost in a person trying to convince the Court that their mental deficiency is not as severe as inferred by others. In other word’s, even if a person has limited capacity because of age, disease or infirmity, does not mean you should give up trying to retain your rights granted to you under the constitution of the United States and Florida.

If you have been served with a Petition to Determine Incapacity, seek out an attorney to protect your rights. Moreover, consider having the attorney of your choice explain to you what documents are available to reduce the possibility of losing your rights because the expense of defending your rights in a guardianship proceeding is far more costly than the cost of a Trust, Durable Power of Attorney and Health Care Surrogate instrument. But remember, simply having a Trust, Durable Power of Attorney and Health Care Surrogate in place is not a guarantee to eliminate a guardianship proceeding against you.

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