What is a Guardianship?
If a person is in danger of being taken advantage of due to their mental incapacity or is having difficulty caring for themselves, a guardianship may be necessary. In order to begin a guardianship, a Petition to Determine Incapacity must be filed with the court, and the court must find the person incapacitated. A sample Petition to Determine Incapacity is below. After the filing of the petition, an attorney is appointed by the court to represent the alleged incapacitated person (AIP) as perhaps the petition to determine incapacity was not filed in good faith, or perhaps the alleged incapacitated person (AIP) does not believe that he or she needs a guardianship. The court will also appoint an examining committee to meet with the alleged incapacitated person and they will recommend to the court whether or not they believe a guardianship is necessary. The court will make the final determination after all evidence is presented during a court hearing.
If a guardianship is approved by the court, the judge will then determine whether only some of the rights of the alleged incapacitated person will be removed or all of them. After the guardianship is approved, the alleged incapacitated person is then called the ward. The Florida statute regarding the various rights is in the link above.
After the judge grants the guardianship and determines the rights that will be removed, and the rights that the ward will retain, the guardian will then be appointed. The guardian will then be able to exercise those rights that are written on the letters of guardianship.
Each year, the guardian will be required to file a guardianship plan, which will show the court how the guardian will be assisting with the physical, emotional and social needs of the ward. Additionally, the guardian will need to file yearly an annual guardianship report, which will summarize all of the assets, income, and disbursements throughout the year so the court can make sure all of the ward’s assets are protected.
In Florida, a guardian must be represented by an attorney. Therefore, if your loved one or friend is in need of protection, please contact our office and our Miami guardianship attorneys and Ft. Lauderdale guardianship attorneys can walk you through the process and represent you during this difficult and trying time.
