Guardianship is a crucial process that allows the management of someone’s financial and legal affairs when that person (the ward) is unable to. A legal guardian is often needed when an aging adult becomes incapacitated through physical or mental illness, such as Alzheimer’s or dementia. Other cases involve a minor child (under 18 years of age in Florida) who experiences a loss of a parent, or is set to receive an inheritance or lump sum of money.
A court will appoint a legal guardian on behalf of someone who is called a “ward”. That guardian then assumes the rights of the ward and manages the ward’s affairs in their best interest. In Florida, a person can serve as a guardian if he or she is 18 years old, a Florida resident, or has met all the requirements for a non-resident of Florida. Florida law prohibits a convicted felon, or anyone who has been judicially determined to have committed abuse, abandonment, or neglect of a child from serving as a guardian. Prospective guardians are required to submit to a thorough background investigation and a guardianship training course. The process of obtaining a guardian can be time-consuming and complex. We focus on the paperwork, you focus on your loved one.
Aging Adults – An older adult may become incapacitated due to a medical condition or mental illness. Adults who have practical limitations caused by illnesses such as Alzheimer’s, dementia, chronic illness or other conditions may need guardianship. Two petitions must be filed with the court before a legal guardian is appointed. The first petition seeks to establish the capacity of the “Allegedly Incapacitated Person” (AIP). The second petition looks for appointment of one or multiple guardians. The person petitioning the court has the burden of showing incapacity by clear and convincing evidence. Once the prospective guardian has filed an oath, posted a bond, and after the order appointing guardian has been entered, the court issues letters of guardianship. The guardian has authority to exercise only those rights delegated to him by the court on behalf of the ward. The guardian is responsible for creating and filing a care plan explaining the ward’s needs and how the guardian intends to meet those needs. The guardian is also responsible for maintaining a detailed accounting of the ward’s assets, income, and expenses in order to assist the ward with tax preparation and filing. The appointed guardian is typically responsible for helping the person manage their medical, legal, and financial affairs.
Adults with Dependency Issues – An adult may become incapacitated due to substance abuse issues such as alcohol, illegal drugs, or prescription drugs. In Florida, under the Marchman Act, a person may be involuntarily assessed and possibly involuntarily treated for substance abuse. In such a case, a court may appoint a guardian advocate during court proceedings. The decision to become a legal guardian to a loved one suffering from dependency issues is difficult and costly. Sometimes it is necessary to protect the loved one from depleting their assets, managing their health issues, and preventing them from doing harm to themselves.
Inheritances -There are times when a minor child, (under 18 years of age in Florida), experiences the loss of a family member and is entitled to receive an inheritance. Inheritance includes real estate, proceeds in a bank account, life insurance proceeds, stocks, CDs, cash in a safety deposit box, or other investments. When the child is set to inherit anything in excess of $15,000, a court must appoint a legal guardian to manage the minor child’s inheritance. The main reason is because minor children can be on a title, but they are not allowed to do business in their own name. Thus, whenever the owner’s signature is needed to refinance, sell, or conduct other business, the court will be involved to safeguard the minor’s interests. The process takes time, involves court expenses, and requires an attorney. All these fees will be paid from the inheritance. Note that although a parent is considered a “natural” guardian, only a court can appoint them as a “legal” guardian. A relative may also be appointed as legal guardian or a non-relative may if he or she is a Florida resident. Once the child turns 18, the guardianship case gets closed out.
Personal Injury Settlements – A minor that has suffered any type of personal injury may find themselves embroiled in a personal injury lawsuit. If the minor has been awarded a personal injury settlement and is set to receive compensation in excess of $15,000.00, Florida courts require a guardianship. In these cases, the court will often appoint a Guardian Ad Litem (neutral party) to monitor the best interests of the minor child. Then the court must approve the minor settlement, and in cases where the anticipated award exceeds $15,000, a formal guardianship proceeding must be filed where a parent or loved one becomes appointed the legal guardian of the property (monies received) of the ward. Once the child turns 18, the guardianship case gets closed out.
OC Estate & Elder Law can provide alternatives to guardianship, especially with proactive planning. If that option has passed, we are here to help you maneuver through guardianship proceedings with empathy and patience.
Obtaining guardianship may be complicated but making sure our loved ones are taken care of shouldn’t be. We help close the gap.