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A guardian is a surrogate decision-maker appointed by the court to make legal, medical, and/or financial decisions on behalf of another person. For example, a guardian may be appointed to care for a minor whose parents are deceased or otherwise unavailable. A guardian may also be appointed for an adult who cannot make their own decisions due to mental or physical incapacity. The subject of a guardianship is known as a “ward.” There are many different types of guardianships available under Florida law, tailored to the specific circumstances and needs of the prospective ward. Continue reading for a discussion of the primary categories of guardianships available in Florida. For help planning for your long-term care and the future of your loved ones, reach out to an accomplished West Palm Beach Elder Law, Special Needs and Estate Planning Attorney.
Guardianships are initially divided between voluntary and involuntary guardianship. An adult who lacks mental capacity due to illness, injury, or disability may be appointed a guardian involuntarily should the court determine they are unable to care for themselves. The court will evaluate whether the individual’s ability to make decisions is so impaired that the court must give power to another person to make decisions on their behalf. Guardianship is only warranted where no less restrictive alternative is sufficient, such as durable power of attorney, healthcare surrogate or proxy, or some other “pre-need” directive established by the individual. The target of a guardianship can challenge the appointment of a guardian at the time of appointment and, down the line, can petition the court to remove the guardianship if they believe it is no longer warranted.
A person may also voluntarily enter into a guardianship when they have mental capacity but lack the ability to manage their estate due to age, injury, or illness. Under a voluntary guardianship, the appointed guardian will manage some or all of the ward’s property. The guardian must understand and agree to the nature of the guardianship, and they are free to terminate the guardianship at any time by filing a notice with the court.
Florida law also categorizes guardianships as either limited or plenary. Limited guardianships are appropriate when the court determines that the putative ward lacks some capacity but can handle other tasks necessary to care for themselves or their property. The limited guardianship will be tailored to the needs of the ward, and only certain legal rights will be granted to the guardian. The limited guardianship may cover personal care such as healthcare and living conditions, financial stewardship involving management of the ward’s real and personal assets, or a combination of both.
A plenary guardianship involves the transfer of all delegable legal rights and powers of the adult ward to the appointed guardian. The guardian will have the power to make all personal, financial, medical, and legal decisions for the ward. Plenary guardianships are only appropriate where the individual is entirely unable to care for themselves.
According to Florida law, the least restrictive form of guardianship necessary to aid the ward is always preferred.
Florida law permits the court to appoint a temporary emergency guardian while the court evaluates whether a longer-term guardianship is proper. The court will evaluate whether the individual may be in immediate danger, or if their property is in danger of being lost, misappropriated, or wasted absent immediate action. The court must make specific findings to this effect in order to appoint a temporary guardianship. The court must enumerate the specific responsibilities of the temporary guardian. The temporary emergency guardianship will expire 90 days after appointment, but it can be extended upon an additional showing that the emergency conditions still exist.
An experienced and thorough West Palm Beach estate planning attorney can help you and your family plan appropriately for the future for you and your family. If you are in need of a professional, meticulous Florida asset protection and elder law attorney, contact the West Palm Beach elder law and estate planning attorneys of Shalloway & Shalloway at 561-686-6200.